Court upholds “First Amendment” right to film police
This ruling is one of many nationwide supporting right to record police.
A federal appeals court has ruled that the public has the right to film cops in public and has reinstated a lawsuit against a local New Hampshire police department brought by a woman arrested for filming a traffic stop.
The plaintiff in the case, Carla Gericke, was arrested on wiretapping allegations in 2010 for filming her friend being pulled over by the Weare Police Department during a late-night traffic stop. Although Gericke was never brought to trial, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.
The decision is but one in a string of decisions that are slowly sticking the needle into laws nationwide barring the recording of police as they perform their duties. But some states, like Massachusetts, outlaw the secret audio recording of police. A woman accused of secretly turning on the audio recording feature of her mobile phone while she was being arrested was charged with wiretapping two weeks ago in Massachusetts.
In the latest decision, the First US Circuit Court of Appeals ruled that Gericke “was exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area.” The decision allows her lawsuit against the department to proceed.
The woman was following a friend to his house when an officer pulled him over. From about 30 feet away, after getting out of her car, she announced she was going to audio-record the stop, according to the record. Ironically, her video camera malfunctioned, and she was unable to capture anything. She returned to her car, according to the opinion.
In a footnote, the court noted Friday that the malfunction was irrelevant: “We agree that Gericke’s First Amendment right does not depend on whether her attempt to videotape was frustrated by a technical malfunction. There is no dispute that she took out the camera in order to record the traffic stop.”
Another officer arrived at the scene and demanded to know where her camera was, and the woman refused to say. She also declined to provide her license and registration. She was arrested for disobeying a police officer, obstructing a government official, and “unlawful interception of oral communications,” the court said.
Local prosecutors declined to charge her on any of the counts. She sued, and a lower-court judge sided against the police, who argued they should be immune from a lawsuit. The police appealed.
“It is clearly established in this circuit that police officers cannot, consistently with the Constitution, prosecute citizens for violating wiretapping laws when they peacefully record a police officer performing his or her official duties in a public area,” the appeals court said. [PDF]
The First Circuit covers Massachusetts, New Hampshire, Maine, and Rhode Island and sent the case back to a lower court for trial.
One aspect of the law that bars the recording of police is whether authorities order people to disperse for legitimate safety reasons. In this context, a trial could determine whether the woman was being disruptive and whether police feared for their safety because the driver of the vehicle that was pulled over said he had a firearm, the appeals court wrote.