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Whether there’s a First Amendment right to videotape police officers conducting their public duties dominated an oral argument at the U.S. Court of Appeals for the 1st Circuit on June 8. The hearing in Glik v. Cunniffe was over the appeal by the city of Boston and three police officers of a June 2010 order by Judge William Young of the U.S. District Court for the District of Massachusetts that denied their motion to dismiss the videotaper’s lawsuit against them. In February 2010, Massachusetts lawyer Simon Glik sued three Boston police officers and the city for arresting him because he used his cellphone to videotape an arrest in 2007 near the Boston Common. The police officer defendants are John Cunniffe, Peter Savalis and Jerome Hall-Brewster. According to Glik’s 1st Circuit brief, one of the officers approached him after placing the suspect in handcuffs and said, “I think you have taken enough pictures.” Glik responded that he was recording the arrest and said, “I saw you punch him,” referring to the suspect. One of the officers then asked if the phone recorded audio and arrested Glik when he said “yes.” The police charged Glik with violating the Massachusetts Wiretap Act, which bars secret audio recordings, by “unlawfully intercepting oral communications,” aiding in the escape of a prisoner and disturbing the peace. The prosecution dropped the aiding escape charge. In February 2008, the Boston Municipal Court dismissed the other two charges “for lack of probable cause.” The court found that Glik’s recording was not secret because he openly held out his cellphone while recording the officers making the arrest; therefore there could be no violation of the Massachusetts wiretap statute. Glik filed a civil rights lawsuit under 42 U.S.C. 1983 claiming the officers were liable for violating his First and Fourth Amendment rights. He also claimed malicious prosecution and violation of the Massachusetts Civil Rights Act. The officers’ dismissal motion claimed they had qualified immunity for the arrest on several grounds. First, Glik did not have a clear First Amendment right to use a cellular phone camcorder function to record the police. Second, the arrest did not violate Glik’s Fourth Amendment rights because it was lawful under the Massachusetts Wiretap Act. Even if the arrest wasn’t lawful, the brief argued, the police were “reasonably mistaken” in their belief that Glik violated the Massachusetts Wiretap Act. Circuit Judges Kermit Lipez, Jeffrey Howard and Juan Torruella sat on the panel at the oral argument. Torruella asked Ian Prior, an assistant corporation counsel for the city of Boston, if there are “any First Amendment implications by a statute that prohibits a recording assuming its electronic of an activity that takes place in public.” Prior replied that “the First Amendment is not unfettered. The Commonwealth [of Massachusetts] has the ability to regulate time place and manner [of the recording]. If there is a First Amendment right, assuming that there is.” At that point, Lipez cut Prior off and asked “How could there not be?” “You’re asking us to really avoid that question and in order to do that you invoke all of these cases that have said, as you have characterized it repeatedly, it’s not clearly established, it’s not clearly established, it’s not clearly established” Lipez said. “It will never be clearly established if a court does not address that issue directly and rule on it.” “Bringing a lawsuit against officers in their individual capacity who are protected by qualified immunity is not the way to do it,” Prior said. “There’s no case out there that says the Massachusetts wiretapping Act is a violation of the First Amendment.” Lipez then asked Prior about the rights established by the 1999 1st Circuit ruling in Iacobucci v. Boulter. That case case concerned a plaintiff who was arrested while videotaping a hallway conversation involving officials after a Pembroke, Mass., historic commission meeting for a local cable television news show. Richard Iacobucci, the videotaper, believed the commissioners were speaking with an applicant who had arrived late and holding a de facto meeting. The 1st Circuit ruled that the police lacked authority to stop Iacobucci because he was not breaking any laws and was exercising his First Amendment rights. The police officers’ brief argues that Iacobucci’s First Amendment right was to access a place open to the public, and his videotaping rights stemmed from the state’s open meeting law. Prior argued that “even in that case, I would say it’s not clearly established that what the court is saying is that you have a First Amendment right to audio record individuals, public individuals in a public place.” “Supposing that the person taking this video was a member of press?,” Torruella asked. It’s the same argument Prior said. “This is not the law of the land,” Torruella said after further argument. “I would say that this is not clearly established law at this point,” Prior said. David Milton, an associate at Boston-based Law Offices of Howard Friedman, argued Glik’s case for the American Civil Liberties Union of Massachusetts. Glik’s recording wasn’t secret because his recording device was in plain view, Friedman said. “Here, what more could he have done?,” Milton asked. “I don’t think to avoid liability under the wiretap statute you should you have to shout and interrupt the police officers?…[If so], you couldn’t record a political demonstration, you couldn’t record the Rodney King incident because not everyone who might be seen would be subjectively aware [they were being recorded]. If that were the reading of the statute the defendants were relying on, it would be flagrantly unconstitutional.” Milton later argued that the implications of a ruling that Glik had no right to make the recording “would be staggering.” “The rights of the media and of individuals like Simon Glik to record public events are coextensive,” he argued. “A ruling that this wasn’t clearly established would have staggering implications.” Lipez later said, “You acknowledge that the police are engaged in important work and there has to be sensitivity to intruding on their primary law enforcement mission … You’re certainly not arguing to the contrary.” Milton said the case did not involve reasonable time, place and manner restrictions. “The reason they arrested him … was to intimidate him from showing the video,” Milton said. “That kind of content discrimination plainly fails the First Amendment.” Sheri Qualters can be contacted at [email protected].

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