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First Amendment Roundup

Last week, I linked to an article about the new trend in law enforcement:  criminalizing attempts by private citizens to photograph or videotape police officers, often while the officers are not, shall we say, performing at their best.  And over a year ago (scroll down to second story), I featured the following video:


It was a video of a motorcyle driver, Anthony Graber, taken through his helmet camera.  He figured it might be interesting to show everybody how the state trooper somewhat overreacted (after all, it's not common for a cop to pull a gun on a traffic violator), so he posted the video on the web.  For his troubles, he was charged with "interception of a wire communication," a felony punishable by up to 5 years in prison.  I wrote at the time

Presumably, Graber will be represented by an attorney who didn't flatline his last EEG, who will point out to a judge that no one would have a reasonable expectation of privacy in a shouted conversation in the middle of a road.  And presumably, that judge will have an IQ which exceeds room temperature, and will lecture Graber about the perils of driving recklessly, before dismissing the felony charge to save the commonwealth further embarassment.  And presumably, the judge will then retire to his chambers to wrestle with the question of who is the biggest jackass in this scenario:  Graber, the cop, or the prosecutor?

It turned out to be a bit more complicated than that.  The state pushed the issue to the max, even getting a search warrant which they used to seize four computers from Graber's home.  They also added some other charges that stretched the maximum possible term to 16 years.  All for naught; last September, the judge dismissed all but the traffic violations (opinion here), holding that the officer had no reasonable expectation of privacy and that Graber's action was protected by the First Amendment, and making one final observation:

Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public.  When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.

That sentiment was echoed by the US First Circuit last Friday in Glik v. CunniffeGlik happened to be walking on the Boston Commons one day in 2007 when he came across three police officers struggling with a man.  He heard another bystander shout, "you're hurting him, stop," and so Glik started video recording it all with his cell phone camera.  After handcuffing the suspect, one of the officers asked Glik if the cell phone recorded audio as well as video.  When Glik said yes, the cops arrested him and took his cell phone.

He was ultimately charged with felony wiretapping, disturbing the peace, and aiding in the escape of a prisoner.  The latter charge was dropped by the prosecutor, and the trial judge tossed the other two, noting pointedly that although "the officers were unhappy they were being recorded during an arrest... their discomfort does not make a lawful exercise of a First Amendment right a crime."

But Glik didn't stop there.  He filed an internal affairs complaint with the Boston Police Department, which was given the attention you might expect; my guess is it wound up in the trash can at the local Dunkin' Donuts.  So Glik sued the police for violating his rights.

This is where it gets a little funky.  Police officers have qualified immunity in such cases; in order to be held liable, the plaintiff has to show that the officers' actions violated "clearly established" Federal law.  The cops argued they were entitled to immunity "because it is not well-settled that [Glik] had a constitutional right to record the officers."

Oh, yes it is, said the court:

"The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles [of protected First Amendment activity].  Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs."

The irony of the police arresting someone for exercising his First Amendment rights on the Boston Common -- akin to beating civil rights demonstrators in front of the Lincoln Memorial -- didn't escape the court, either; it noted that the Common was "the oldest city park in the United States and the apotheosis of a public forum." 

That doesn't put any money in Glik's pocket; the 1st Circuit's opinion was on an interlocutory appeal.  (Qualified immunity, like sovereign immunity under Ohio law, is one of those issues that can be appealed before trial or other conclusion of the case.)  But if the jurors in any eventual trial, should it come to that, have as much grasp of the basic concepts of liberty as the 1st Circuit had, the City of Boston is going to be coughing up some bucks.


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