Video Taping Police in Public Protected by First Amendment

[KyJim]

I ran into a case that was recently decided in the First Circuit Court of Appeals which held police could be held liable for arresting a person for videotaping them during an arrest in a public place. The case is Simon Glik v. John Gunniffe, No. 10-1764, available at http://www.ca1.uscourts.gov/pdf.opinions/10-1764P-01A.pdf. Mr. Glik was in the Boston Commons and used his phone to videotape what he thought might be excessive use of force during an arrest.

The issue actually before the court was whether the police were entitled to qualified immunity because the right to videotape them was not a clearly protected right. The Court rejected this argument and said the general public had the same right as the press and the police violated the First Amendment rights of Glik. They also said his Fourth Amendment rights (to be free from unlawful seizure) were not violated as the Massachusetts wiretapping statute protected only against secret audio recording and not recording done openly in public.

The court did indicate it might have seen things a bit differently if Glik had been videotaping them during a traffic stop. Not sure that I can see a big difference since they are still in a public place. I thought it would be of interest given the recent interest in alleged police misconduct caught on videotape.

This opinion only covers those states within the First Circuit.

 

[Eghad]

It should be of interest because some Police Departments are still arresting people because they say its against the law to videotape them. Only to find out there is no such law and The DA has to make a reach trying to use a wiretap law. Which this court throws out in its ear. Hopefully this case will put to bed such nonsense.

The traffic stop filming has been put to the test in another state the DA crashed and burned on that one.

As long as the videotaping is not interfering with the arrest physically the defendant is going to win out over the DA and Police every time.

 

[Uncle Buck]

How many times on the show COPS have you heard "We are in a public place, they can film what-ever they want.", In response to someone complaining the cameras are filming them getting arrested.

It does seem the police have double standards in some places. If they have a news crew tagging along, then it is OK. If Johnny Q. Public is filming them, then there is a problem?

 

[Sensai]

More like, if they're the heroes on a tv show it's OK, but if they have something to hide it's against the law.

 

[MLeake]

I think Eghad nailed it.

If the taping isn't physically interfering with the arrest, then it should be fine.

I've seen some video examples where the people taping were right up in the officers' faces, during violent or potentially violent encounters; those people are just stupid, and deserve to be arrested.

But the people who tape from outside the action... they should enjoy full protection of the 1st Amendment, with the caveat that any video they have should be fully discoverable to the prosecution and the defense - assuming the tapers aren't actual journalists.

 

[C0untZer0]

It's scary to me that someone could get arrested for videotaping in public.

And a DA whould actually champion something like that?

Where was the DA's head?

 

[MLeake]

C0untZer0, I haven't seen the proposed ordinance. I could see a DA supporting a requirement to tape from outside a certain distance, to help maintain a safety zone for the officer (and the photographer). I could not see any ethical DA supporting a complete ban.

 

[Tom Servo]

I could see a DA supporting a requirement to tape from outside a certain distance, to help maintain a safety zone for the officer

Actually, I think we need such a requirement. About a year ago, a youth group in New Hampshire made a point of videotaping traffic stops.

Of course, it was a crowd of them, and they made a point of surrounding the officer at point blank while they yelled at him. They were clearly interfering with his ability to do his job.

It's quite possible to strike a balance between their (questionable) exercise of the 1st Amendment while still giving law enforcement some room to work.

 

[shortwave]

Agree with taping from a distance of the objects.

Lets flip the coin for a moment.

There have been many past citizen videotapings of heroic acts done by both police and firemen doing their jobs as well...I.E., tapes shot by citizens during 9/11 ten years ago comes to mind. The tapes have been seen on TV and the public employees praised. Don't recall hearing any DA's/gov't officials objecting to these tapes.

Bottom line is, if it's good to film the great deeds, it's also good to film the bad.

 

[MLeake]

shortwave, sounds like you, Tom Servo and I are on the same page.

Funny how that happens...

 

[shortwave]

^^^^

 

[Tom Servo]

shortwave, sounds like you, Tom Servo and I are on the same page.

I slipped him five bucks in the break room.

Let's say I get pulled over, and Mr. Imma Be a YouTube Hero decides to tape the encounter. I'm a private citizen. I don't remember consenting to have my vehicle, my plate number, or my likeness posted on the internet. What are the possible implications there?

 

[pnac]

Let's say I get pulled over, and Mr. Imma Be a YouTube Hero decides to tape the encounter. I'm a private citizen. I don't remember consenting to have my vehicle, my plate number, or my likeness posted on the internet. What are the possible implications there?

It goes back to "No perception of Privacy in Public" (or whatever) again. What's the difference, legally speaking, in being filmed by cops, store security, school security, etc, and being filmed by "Mr. Imma Be a YouTube Hero"?

 

[Hardcase]

I'm not a lawyer, but my gut feeling is that if you don't want to be taped in a public place, you probably shouldn't be in a public place.

 

[Tom Servo]

What's the difference, legally speaking, in being filmed by cops, store security, school security, etc, and being filmed by "Mr. Imma Be a YouTube Hero"?

In those cases, it's not being published on the internet for the world to see.

 

[Isk]

In general, in public, you have no expectation of privacy.

 

[Carry_24/7]

I'm sure any cop who arrests someone "only" for taping them in public would not have their job very long. I'm sure the report and booking for that one would be very interesting..... What's the charge, public filming of a police officer?

They better attach some "real" charge to it.

KYJim, good article.

 

[BarryLee]

I agree wholeheartedly that folks are and should be free to tape Police, but I wonder why some of them don’t film criminals. Here in Atlanta there was an incident involving the video recording of Police in the Little Five Points area of Atlanta and the Police overreacted, and ultimately the video dudes were exonerated. However, this area of the City has pretty big crime problems, so why don’t the Video Avengers stake out public areas and film the bad guys. Take my word for it you would not have to look too far in this area especially if you include drug crimes.

 

[stonewall50]

I agree with mleake. He said what I was thinking when I read the first post.

Videotaping should be 100% legal, but a camera can be as dangerous as a loaded gun in the hands of an idiot. Someone trying to get a good youtube clip of "police brutality" has a great chance of ending up a video of, "moron dead after getting too close to an arrest of a dangerous suspect."

There is a distance factor and there is also mental things to worry about. If someone is looking to commit suicide on TV or film? People getting into harms way, but that is all up to the officers involved and will more than likely be brought into court. I think the option should remain open for police to force people to stop filming, if for the only reason of preventing them from endangering others or themselves by their own idiotic actions. People are not responsible enough to handle a video camera(same with typewriters too lol). Flipside of course is that forcing the end of filming should also be "policed."

 

[Aguila Blanca]

There have been many past citizen videotapings of heroic acts done by both police and firemen doing their jobs as well...

They are out there. Has anyone seen the recent video of a bunch of people tipping up a burning car to pull a motorcyclist out from under? I'm pretty sure there was a uniformed police officer in that bunch.