The United States Court of Appeals recently upheld the decision of a trial court to deny qualified immunity to a group of police officers who arrested a man for taking video of their arrest of another man.
The plaintiff in the original suit, Simon Gilk, was walking past the Boston Common when he saw three police officers arresting a young man. Concerned that the officers were hurting the suspect, Gilk took out his cell phone and began recording the arrest. Later, one of the officers approached Gilk and inquired whether his cell phone recorded audio as well as video. When Gilk replied in the affirmative, he was arrested for violation of the Massachusetts wiretap statute.
Gilk brought his claim against the arresting officers, claiming that his First and Fourth Amendment rights had been violated: the First Amendment right to record the officers’ actions in a public space, and the Fourth Amendment right to be arrested only with probable cause.
On appeal, the officers argued that they were entitled to qualified immunity because the law establishing a First Amendment right to record police officers carrying out their public duties was unclear.
The United StatesCircuit Court of Appeals, First Circuit, held there was no qualified immunity because:
Both the press and private citizens have the undoubted right to gather news from any source inside the law.
Gathering information about government officials in a form that can be easily distributed to others serves the fundamental First Amendment interest in protecting and promoting the free discussion of governmental affairs by United States citizens.
The First Amendment protects the right to gather information about what public officials do on public property, particularly as they relate to matters of public interest. This is particularly relevant in the case of law enforcement officials, who are given a lot of discretion with their power, and could easily use it to deprive citizens of their civil liberties.
Gilk filmed the police officers in the Boston Common, the oldest city park in the United States; this location is the epitome of a public area. He filmed the officers from a reasonable distance and did not speak to or hinder them in any way. Peacefully recording an arrest in a public space does not interfere with the performance of the officers’ duties and is a basic, vital, and well-established civil liberty safeguarded by the First Amendment. The fact that the officers were not happy about being recorded does not make Gilk’s exercise of the First Amendment a crime.