(Photo: Lisa F. Young/iStockphoto.com.)
A federal appeals court has ruled that citizens have a First Amendment right to videotape police officers at traffic stops, rejecting three officers’ attempt to assert qualified immunity against a civil rights claim.
The U.S. Court of Appeals for the First Circuit affirmed now-senior U.S. District Judge Steven McAuliffe’s October 2012 ruling against three officers from Weare, N.H. Gericke v. Begin had been stayed pending the appeal. Friday’s appellate ruling cleared the way for a jury trial.
Police charged plaintiff Carla Gericke with violating the New Hampshire wiretapping law for videotaping a March 2010 traffic stop. Gericke told an officer at the scene that she was traveling with the people in the car that police stopped. The officer told her to leave; she moved 30 feet away and kept recording.
Gericke’s lawsuit named the town, the police department and the officers involved, claiming retaliatory prosecution in violation of her First Amendment rights.
“Based on Gericke’s version of the facts, we conclude that she 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,” Senior Judge Kermit Lipez wrote. Judge O. Rogeriee Thompson and Senior Judge Bruce Selya joined him.
The court relied on its 2011 ruling in Glik v. Cunniffe holding that Boston lawyer Simon Glik “unambiguously” had a First Amendment right to film police making an arrest on the Boston Common.
Friday’s ruling was a strong victory for proponents of government openness and accountability, according to Gericke’s lawyer, Seth Hipple at Martin & Hipple in Concord, N.H. “The ruling reiterates that on the job means on the record, and that people can record police activity whether that activity is in a public park or a roadside traffic stop,” he said.
The officers’ attorney, Charles Bauer of Gallagher, Callahan & Gartrell in Concord, said the court simply rejected his clients’ summary-judgment motion but that he was considering petitioning the U.S. Supreme Court for a writ of certiorari.
Bauer pointed to a 2010 Third Circuit ruling in Kelley v. Borough of Carlisle, which granted a police officer qualified immunity because “there was insufficient case law establishing a right to videotape police officers during a traffic stop.” He said, “We’re going to look at [the First Circuit opinion] in more detail and determine whether going back to the trial is appropriate.”
Contact Sheri Qualters at firstname.lastname@example.org.