I would like to take this opportunity to share with anyone I have not told yet: I got an awesome new phone. I am fascinated with the capabilities of this little machine. It can do so many things that I don’t necessarily need it to do but that are incredibly cool nonetheless. The technology most of us carry around in our pockets is amazing. And apparently it is capable of more than just sharing pictures of our cats, babies, meals, etc., or launching irritable birds into buildings. It can also be used to protect our rights.
I have said it before and I will say it again: recording the police is good. Last week, the Washington Examiner said it. More notably though, the week before that the United States Court of Appeals for the First Circuit said it.
In Glik, the First Circuit considered a civil rights suit against some Boston police who arrested the plaintiff Glik for recording them in the act of arresting someone else. The short and all-too-common story is that Glik saw what he believed to be police using excessive force to make an arrest and busted out his cell phone and started recording. The officers did not like that so they did what police so often do when they don’t like something and abused their power to make it stop. They arrested Glik and took his phone and computer flash drive, and he was charged with violation of the Massachusetts wiretapping statute, disturbing the peace, and even aiding the escape of a prisoner. The prosecution dropped the escape thing for lack of probable cause, and the municipal court dismissed the other two charges, noting that just because the “officers were unhappy they were being recorded . . . does not make a lawful exercise of a First Amendment right a crime.” This probably comes as a quite a surprise to most police.
So, Glik filed civil rights charges against the police. The police of course claimed sovereign immunity, which the district court denied. The First Circuit affirmed the denial, holding explicitly that “Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.”
My heart warms at the clarity of that sentence. No qualifications. No tests. You have a right to record the police while they perform their duties in a public space, and the First Circuit will defend that right by allowing you to sue them when they violate that right.
Unfortunately, Glik is the only federal appellate case to make such a definitive holding. That still leaves most Americans in a position where they are subject to this sort of police abuse without a clearly established avenue for recourse. The way to change that is to keep on recording. Arrests for recording police in public spaces will lead to court cases. Court cases will lead to opinions. Incorrect opinions will lead to appeals. And ideally everyone will end up under the jurisdiction of some court that is willing to protect them from the police.
So keep your eyes open and your batteries charged. You never know when you might have the opportunity to help protect our rights.