Police Immunity from Cell-Phone Recording Overturned by Court

Published September 19, 2011

On August 26 the U.S. First Circuit Court of Appeals rejected a motion to dismiss a lawsuit against the Boston police for arresting a man who recorded their brutal treatment of a teenager. The ruling is only one stage of an important lawsuit, but it may have sweeping consequences for two concepts crucial to civil liberties: police immunity and the free-speech right to record on-duty police in public.

In essence, and in an unusual move, the court ruled against immunity and for freedom of speech. Recording speech in the public realm is considered to be protected by freedom of speech.

The federal Electronic Communications Privacy Act allows audio recordings if one party to the conversation consents. Thirty-seven states have adopted the “one consent” standard; 12 states require “all consent.” Massachusetts is one of them.

In recent years police departments have been plagued by a flood of embarrassing and legally explosive recordings of officers’ disregard for the law and mistreatment of civilians. When posted online, these recordings are a powerful restraint on police power. Thus some states have reinterpreted a law meant to prevent clandestine recording as permitting the arrest of those who record the police in public, where there has traditionally been no expectation of privacy.

A protracted conflict has erupted between some police departments and people who continue to record. Civil-rights organizations have expressed outrage at these arrests as an assault on freedom of speech, police accountability, and due process.

Recording Rough Treatment
On October 1, 2007, attorney Simon Glik was arrested for recording the rough treatment of a teenager on the Boston Commons and charged with disturbing the peace, felony wiretapping, and aiding the escape of a prisoner. Glik had stood peacefully to one side, and the prisoner had not escaped. The wiretapping charge resulted from the audio recording made with his cell phone.

In February 2008 all charges against Glik were dropped, and he then filed an internal-affairs complaint against the arresting officers. It was not pursued. In February 2010 Glik filed a civil-rights lawsuit in the federal District Court of Massachusetts against three officers and the city for violating his First and Fourth Amendment rights. The police asked to have the suit dismissed on two grounds: The police were immune from personal liability for their on-duty actions, and the free-speech aspect of the suit was not “well-settled” in law.

Lawsuit Moves Forward
On the liability issue the District Court found probable cause is required for an officer to be entitled to “qualified immunity from a Fourth Amendment claim.” “Glik’s Fourth Amendment claim is that the appellants lacked any such probable cause that Glik had violated state law at the time of arrest,” the court said, adding, “The presence of probable cause was not even arguable here.”

On the free-speech claim the court ruled, “Glik’s exercise of his First Amendment rights fell well within the bounds of the Constitution’s protections. . . . The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

The police department appealed to the First Circuit Court where, as Yale Law School Professor Carol Rose explained, the court would “decide whether cops can get away with wrongfully arresting innocent passersby in order to silence anyone who documents their misconduct.” The Court upheld the District Court’s ruling, and the lawsuit can proceed.

Russian Émigré
America is lucky that Simon Glik emigrated from Russia to the “freedom” of its shores. He did not walk away on witnessing police brutality, he refused to obey a police command (“stop recording!”) that violated his civil liberties, and he is tenacious about pursuing constitutional rights.

It is not possible to predict the outcome of Glik v. Cunniffe. The court system has a marked tendency to uphold immunity and other police protections, but the findings of the District and Circuit courts are encouraging.

Glik is an important case because it may cause a crack in the legal immunity many states grant police officers for on-duty misconduct. Freedom of speech is certainly at issue here, but Glik is equally important for advancing police transparency and accountability. Without these safeguards, it is not safe for anyone to walk down a street in America … not because of criminals but because of the police.

Wendy McElroy ([email protected]) is director of the Center for the Study of Innovative Freedom. This article originally appeared in The Freeman, published by the Foundation for Economic Education. Reprinted by permission of The Freeman.

Internet Info

“Opinion: Glik v. City of Boston,” U.S. Court of Appeals for the First Circuit, August 26, 2011: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1764P.01A

“Audio Recording Laws,” A-1 HiddenCamera.com, http://www.a1-hiddencamera.com/pages/Audio-Recording-Laws.html
“In Illinois, It’s a Felony to Film Police,” Kyle McGrath, Infotech & Telecom News, June 2011: http://news.heartland.org/newspaper-article/2011/05/05/illinois-it%E2%80%99s-felony-film-police

“Big Brother Is Watching,” Bruce Edward Walker, The Heartland Institute, May 2011: http://heartland.org/newspaper-submission/2011/05/05/walker-big-brother-watching.

“Cops Arrest Woman for Video Recording Arrest,” Infotech & Telecom News, July 2011: