MA- Glik v. Cunniffe case tests the rights of citizens to record the police.

This morning, I attended a hearing of the U.S. Court of Appeals for the First Circuit in the case of Glik v. Cunniffe, which raises important questions regarding the existence of a constitutional right to record the activity of police officers in public areas and the scope of Massachusetts' wiretapping law. On October 1, 2007, plaintiff Simon Glik was arrested under the Massachusetts wiretap act, Mass. Gen. Laws c. 272, § 99, as well as for aiding the escape of a prisoner and disturbing the peace, after he used his cell phone to create an audiovisual recording of three police officers arresting a suspect on Boston Common.

Glik stated that he did not attempt to conceal his use of the cell phone, and thus did not make a “secret” audio recording as prohibited by the wiretap act. He also claimed that he in no way interfered with the arrest and that he had a First Amendment right to record the activity of the police officers. The Commonwealth of Massachusetts dismissed the aiding escape charge, and the Boston Municipal Court dismissed the remaining charges.

Glik, with the assistance of the ACLU, then filed suit against the officers and the City of Boston, asserting claims under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act as well as a claim for malicious prosecution. The civil rights claims are premised on violation of Glik’s Fourth Amendment right not to be placed under false arrest (alleging a lack of probable cause to believe that he was engaged in “secret” recording) and his First Amendment right to record police activity on public ground. The police officers filed motions to dismiss on the basis of qualified immunity, which the U.S. District Court for the District of Massachusetts denied. They appealed, leading to today’s argument.

Judges Lipez, Torruella and Howard presided over today’s hearing before a packed courtroom. The attorney for the police officers argued that there had been no violation of Glik’s Fourth Amendment rights, because the police were following a reasonable interpretation of the wiretap act stating a recording is secret if the persons recorded are not subjectively aware of the recording process. Under that interpretation, he argued, the police would have had probable cause to believe a violation had occurred because they themselves were not aware that Glik was recording them. He then argued that even if that interpretation were incorrect, the appropriate standard of “secrecy” was not reasonably clear such that the officers should lose their qualified immunity.

Glik’s counsel responded on the Fourth Amendment issue by first questioning the factual assertion that the police were unaware they were being recorded, which he claimed was not apparent from the face of the complaint; to the contrary, he argued that the allegations of the complaint (in particular an allegation that the officers approached Glik and stated that he had “taken enough pictures”) suggested that the police were aware of the recording. Counsel suggested that this language was ambiguous as to whether the police meant motion pictures, but I personally find this argument lacks traction. If people mean -- “are you filming?” -- they would usually refer to the act of filming; filming is a continuous process while the question about “enough pictures” implies a quantity, which suggests still photography.


Links:
http://aclum.org/glik

http://www.citmedialaw.org/blog/2011/first-circuit-hears-argument-right-record-public

http://www.wbur.org/2011/06/08/police-cellvideo