A federal appeals court on Wednesday considered whether a citizen has a constitutional right to videotape police officers at a traffic stop.
The oral argument in Gericke v. Begin at the U.S. Court of Appeals for the First Circuit focused on whether an August 2011 First Circuit ruling about a lawyer’s videotape of an arrest in a park applied to traffic stops.
The defendants in the Gericke case are three Weare, N.H., police department officials and an officer who are appealing an October 2012 decision by District of New Hampshire Judge Steven McAuliffe. That ruling denied qualified immunity to the officers against Carla Gericke’s case.
In March 2010, Gericke had pulled over to film a traffic stop. When approached by police, she informed the officer that she was traveling with the people in the car ahead of her who were detained. After he instructed her to leave, she moved 30 feet away and continued filming.
Gericke was charged with violating the New Hampshire wiretapping law for videotaping the traffic stop, and she sued the department claiming retaliation for making the tape.
The defendant officers claim Gericke did not have a constitutionally protected right to tape the stop "given the totality of the inherently dangerous circumstances of this late-night traffic stop."
The appeals panel on Wednesday considered the 2011 First Circuit ruling in Glik v. Cunniffe. The court in that case held that videotaping police is "unambiguously" a First Amendment right.
Simon Glik, a Boston lawyer, was arrested in October 2007 for videotaping a police arrest on the Boston Common. The city of Boston eventually paid Glik $170,000 to settle his case against the city and three police officers.
The defendants in the New Hampshire case seized on language in Glik, which stated that recording police during a traffic stop is "clearly distinguishable" and "worlds apart from an arrest on the Boston Common."
That language referenced a 2010 U.S. Court of Appeals for the Third Circuit ruling in Kelley v. Borough of Carlisle, which found that there was insufficient case law to establish the right to film a traffic stop.
Senior Judge Kermit Lipez, who wrote the Glik opinion, sat on Wednesday’s panel with two judges who didn’t hear Glik. They were Judge O. Rogeriee Thompson and senior judge Bruce Selya.
Gericke’s brief argued that her open recording of "a public official performing his public duties in a public place was constitutionally-protected." She also argued that she "did not unreasonably compromise officer safety" by videotaping from a distance.
Additionally, her brief called the Third Circuit ruling in Kelley an outlier "as no other Federal appeals court, Federal district court, or State court has seen fit to make such a distinction" in terms of the type of police activity filmed.
The attorney for the officers argued to the contrary. "Our position is that the constitutional right to videotape police officers in an inherently dangerous police stop has never been declared," said Charles Bauer at Gallagher, Callahan & Gartrell in Concord, N.H.
He added during oral argument that the First Circuit in Glik "did not clarify the law with regard to traffic stops because it had no occasion to do so."
Gericke’s lawyer Seth Hipple at Martin & Hipple in Concord, N.H., said situations are different in different cases, but he urged the court not to narrow the question so much that every single case must be decided on the facts.
"People don’t know what activity is protected, and that alone could produce a chilling effect," he said. "I would ask the court not to retreat from its holding in Glik."
Sheri Qualters can be contacted at email@example.com.