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Mass. Court Says Constitution Protects Filming On-Duty Police 473

Posted by timothy
from the good-setting-for-the-scene dept.
Even in a country and a world where copyright can be claimed as an excuse to prevent you from taking a photo of a giant sculpture in a public, tax-paid park, and openly recording visiting police on your own property can be construed as illegal wiretapping, it sometimes seems like the overreach of officialdom against people taking photos or shooting video knows no bounds. It's a special concern now that seemingly everyone over the age of 10 is carrying a camera that can take decent stills and HD video. It's refreshing, therefore, to read that a Federal Appeals Court has found unconstitutional the arrest of a Massachusetts lawyer who used his phone to video-record an arrest on the Boston Common. (Here's the ruling itself, as a PDF.) From the linked article, provided by reader schwit1: "In its ruling, which lets Simon Glik continue his lawsuit, the U.S. Court of Appeals for the First Circuit in Boston said the wiretapping statute under which Glik was arrested and the seizure of his phone violated his First and Fourth Amendment rights."
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Mass. Court Says Constitution Protects Filming On-Duty Police

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  • by Anonymous Coward on Sunday August 28, 2011 @04:07PM (#37236348)

    All the way to the Supreme Court, and we can have a final ruling that recording public officials in public is, you know, legal.

    • by _0xd0ad (1974778)

      They'll never permit that to happen. No, it'll get settled with a victory in some lower level court that won't matter. You can't appeal if you win.

      • Re: (Score:2, Informative)

        by blair1q (305137)

        Depends on what charges the cop stands to face, or how big a dick the state's lawyer is.

        If they don't appeal, the law is what this Appeals court just decided it is.

        And just from reading TFA it looks like this court based its opinion on other decisions, so it's unlikely things are going to go the other way.

        Expect the state to let this rest. The legislature who passed this law, and the governor who signed it*, fucked up.

        * - I bet it was Romney. He seems like the sort of constipated dickhead who'd think prev

        • by sexybomber (740588) <boccilino AT gmail DOT com> on Sunday August 28, 2011 @05:13PM (#37236778)

          Unless we're living in Bizarro World, the cop's not going to get charged with anything. Why would the DA punish one of his own thugs? A more likely scenario, if the law is eventually held unconstitutional, is that the cop in question might draw a civil suit under 42 USC 1983 (establishes civil liability for those who violate the civil rights of others "under color of law"), but it'd probably settle out for the cost of the phone stolen and Court costs incurred, which can be billed to the taxpayers. Either way, everyone's getting off essentially scot-free.

          • by blair1q (305137) on Sunday August 28, 2011 @05:20PM (#37236812) Journal

            Why would the DA punish one of his own thugs?

            DA's are elected. Cops aren't.

            • by canajin56 (660655) on Sunday August 28, 2011 @05:35PM (#37236900)
              If there's one thing I've learned from watching 10,000 cop procedurals, it's that if the DA dares charge even en ex-cop with anything, all the other cops will "lose" evidence resulting in a 0% conviction rate, and then he won't get reelected because he'll seem incompetent. Somehow the cops don't get reprimanded for losing evidence and botching investigations and contaminating evidence. Also somehow DA's threaten to not press charges as a way to punish cops for not towing the line, so I guess the absurd "We'll let criminals go and that'll make YOU look bad but not us!" threat can be used both ways? Or maybe TV doesn't reflect reality all that much? WHO KNOWS.
              • Re: (Score:3, Informative)

                by R3d M3rcury (871886)

                If there's one thing I've learned from watching 10,000 cop procedurals, it's that if the DA dares charge even en ex-cop with anything, all the other cops will "lose" evidence resulting in a 0% conviction rate, and then he won't get reelected because he'll seem incompetent.

                "I saw it on Law and Order, so it must be true!"

                You do realize how ridiculous that sounds?

                TV Shows are not real. Even the ones "ripped from the headlines."

              • by artor3 (1344997) on Sunday August 28, 2011 @06:26PM (#37237212)

                If there's one thing I've learned from watching 10,000 cop procedurals

                There isn't.

              • by blair1q (305137)

                Cops basically live their entire lives under suspicion of either maliciously offending the public or negligently shirking their duty. They're also responsible for evidence and accurate descriptions of what happened. The paperwork is a nightmare, and tiny errors can let real crooks go free (modulo the quality of their defense attorney).

              • by rts008 (812749) on Sunday August 28, 2011 @10:51PM (#37238550) Journal

                ...punish cops for not towing the line,...

                They have to pull barges now?

                By the context of your comment, I suspect you meant toeing the line.

                Or maybe TV doesn't reflect reality all that much?

                That may be the understatement of the decade.

                Don't 'educate' yourself via TV, it will FUBAR your mind.

      • by gnasher719 (869701) on Sunday August 28, 2011 @04:53PM (#37236656)

        They'll never permit that to happen. No, it'll get settled with a victory in some lower level court that won't matter. You can't appeal if you win.

        You should have read the fine article. It is amazingly strong. This was not about a guy being arrested and then found innocent in court. This is about a guy suing the police for being arrested and winning the case.

        First, the judge said that the right to film a police officer, or any other official, while doing their duty in a public state is so evidently guaranteed by the First Amendment that the judge doesn't even have to refer to any case law. And it is so clearly legal that any police officer arresting you for it is not just making a mistake, but breaking the law.

        Second, the judge said that the Massachusetts wiretapping law is about _secretly_ recording. Interestingly, it has nothing to do with the police's right to privacy or not, and nothing to do with consent to the recording, but the only important thing in Massachusetts law is whether the recording is done secretly or not. So a secret recording could be illegal. An open recording, like this man did, with a phone in open view of the police men, is absolutely legal. And it is so obviously legal that a policeman arresting you for wiretapping in this situation is not just making a mistake, but breaking the law.

        So what we learn: You can record a policeman doing his job in a public place, but you have to do it openly.

        • by interval1066 (668936) on Sunday August 28, 2011 @05:53PM (#37237022) Homepage Journal
          Of course. Its ridiculous for any law enforcement official under the jurisdiction of the US Constitution to believe that they can put a stop to people filming them. I know this because years ago I witnessed a cop trying to stop a slowly gathering protest in San Diego, California (I forget what the protest was about). A lawyer happened to be in the crowd and told the cop to back, the individual had an absolute constitutional right to protest, and if the cop persisted he'd be sued, the San Diego Muni Force would be sued, and he would do everything in his power to make sure that the cop was jailed for civil rights violations. Sounds like a typical story of these types but the experience left a big impression on me. After witnessing that I have to believe that citizens do indeed have an absolute right to film any police action. It might take a court to make sure it happens, but that's the nature of the topic in this country.
      • Re: (Score:3, Interesting)

        Specifically, the state won't risk applying for a writ of cert on this because it's a bad test case for it. For this to get to the Supreme Court, you'll need either a stupid prosecutor (or one doing the wrong thing institutionally), a set of facts more favorable to the police, or a decision going the other way on the appeals court level.

        • by voss (52565)

          If the supreme course declines to hear an appeal or it is not appealed , it does become binding caselaw within the first circuit
          and damn persuasive everywhere else.

    • by shentino (1139071) on Sunday August 28, 2011 @04:53PM (#37236652)

      Especially since actions taking place in public do not have participants with a reasonable expectation of privacy.

      It is one of the meanings of the word "public".

    • by bth (635955)
      You really don't want that....SCOTUS will likely rule that only corporations can legally record public officials.
    • by Smallpond (221300) on Sunday August 28, 2011 @04:59PM (#37236700) Homepage Journal

      If the government thinks it's necessary to record my overseas phone calls me and touch my junk at airports in order to stop terrorism, then the natural conclusion is that the government needs to be equally open. It consists of the same kind of people as me, just as (un)likely to be terrorists. Therefore, I need to see what they are doing. No more secret meetings. No more closed negotiations. No more situations that I can't record what's happening to me. In a democracy we don't have a separate ruling class with different privileges.

      • Actually in a democracy thats EXACTLY what you get. What you meant was in a REPUBLIC, we dont have a yada yada yada. Democracy jsut means one man one vote, it provides no checks against the Strong buying/bullying the Weak's vote.
        • by Improv (2467)

          I think you're using definitions at odds with both common usage and political theory.

          We have a Democratic Republic, one of the many forms of Democracy.

    • by icebike (68054) on Sunday August 28, 2011 @09:21PM (#37238180)

      All the way to the Supreme Court, and we can have a final ruling that recording public officials in public is, you know, legal.

      You don't need it to go that far. I can't see any city or state wanting to contest this much higher, in light of the fact that the ruling was pretty clear. It was after all, just the officers that contested it this far. They didn't have any governmental backing, and the Boston Municipal court had already bitch slapped the officers down and dismissed all charges. I just don't see those guys having the financial backing to go much further.

      Unless some other circuit rules contrary, this is the precedent that will be cited country wide.

  • and so they learn (Score:5, Insightful)

    by X0563511 (793323) on Sunday August 28, 2011 @04:07PM (#37236350) Homepage Journal

    The police just learned an important lesson: Don't charge lawyers with the stupid rules you use to get away with shit.

  • Great News! (Score:5, Interesting)

    by ohnocitizen (1951674) on Sunday August 28, 2011 @04:07PM (#37236352)
    This is great news, especially since wiretapping statures are commonly used in other states to suppress people's attempts to record police actions.

    It's a special concern now that seemingly everyone over the age of 10 is carrying a camera that can take decent stills and HD video

    That makes me optimistic, if we see a shift in the law accompanied by the reasonable expectation that *anyone* could potentially be carrying a recoding device, perhaps we will see a moderation in police behavior.

    • Not only can anyone have a recording device, but with the new utilities the recorded data is being instantly streamed to not only a safe site but potentially facebook, youtube or other web sites as an upload in realtime.

  • re: "Even in a country and a world where copyright can be claimed as an excuse to prevent you from taking a photo of a giant sculpture in a public, tax-paid park,"

    that policy for Millennium Park was removed, permits are only required for filming crews 10 persons or larger.

  • Missed one... (Score:5, Interesting)

    by MickyTheIdiot (1032226) on Sunday August 28, 2011 @04:24PM (#37236458) Homepage Journal

    You are missing the recent case in Rochester [huffingtonpost.com] where a woman was arrested on her own front lawn for videotaping an arrest going on just off of her property. IIRC the D.A. decided to not bring the case to trial, but the police continued to harass the woman and a demonstration held against the arrest. There was also a news conference with one of those great police organisations going off about how the video recording makes them "less safe."

    What bollocks... if the tables were turned you know the police would scream that there was no expectation of privacy on a public street... and the woman was standing on her very own lawn.

  • by 93 Escort Wagon (326346) on Sunday August 28, 2011 @04:26PM (#37236474)

    With respect to the sculpture in Chicago, the "don't photograph with permission of the sculptor" statement was specifically with regard to commercial photography since the sculptor retained copyright on his work. I'm not actually sure even that would stand up in court, since it's a public space (just like you don't need permission to photograph people in a public space, even though it's still a good idea) - however I can understand the thinking behind it.

    With regard to the police arresting Michael Gannon for "wiretapping", they returned his equipment when they figured out they didn't have a legal leg to stand on (apparently he's still waiting to get the tapes back though). I agree the Nashua N.H. police need better training - as well as someone to teach them how to behave professionally, even when dealing with slimeballs - but the summary makes it sound like what they did was legally supportable in the United States, when obviously it's not.

    This is one of the reasons people should be reading newspapers, or at least spending five minutes Googling for information when stuff like this comes up - so many people have trouble separating truth from internet memes because they don't bother to read past the headline.

    • by vux984 (928602) on Sunday August 28, 2011 @06:58PM (#37237446)

      With respect to the sculpture in Chicago, the "don't photograph with permission of the sculptor" statement was specifically with regard to commercial photography since the sculptor retained copyright on his work. I'm not actually sure even that would stand up in court, since it's a public space (just like you don't need permission to photograph people in a public space, even though it's still a good idea) - however I can understand the thinking behind it.

      Don't photograph X in public place because copyright is held on X should NOT stand up in court.

      HOWEVER, the ability to publish the photograph could reasonably be argued as copyright infringement without the sculptors permission if the photograph is deemed a derivative work. (which if the sculpture was the subject of the photograph is not unreasonable).

    • With respect to the sculpture in Chicago, the "don't photograph with permission of the sculptor" statement was specifically with regard to commercial photography since the sculptor retained copyright on his work.

      The problem is that the restriction was applied based on equipment. If you had a nice camera, you were assumed to be a professional taking a for-profit picture. That was the problem: enforcement of the copyright should have been done at profit level (find and shut down offenders), not at the pho

  • Will likely have a different opinion. To them the constitution only applies to corporations.

    • With so many calls for constitutional amendments for irrelevant things I still can't understand why there is no movement for an amendment to end this abomination called corporate personhood.

  • by AK Marc (707885) on Sunday August 28, 2011 @04:32PM (#37236512)
    So, when is the arresting officer going to be charged with violating the civil rights of the videographer? Don't police make some sort of oath to uphold the law, and this ruling makes it clear that the officer violated the law, thus breaking their oath, shouldn't that get them fired as well?

    The real issue here is "government violates the law with impunity and nobody cares."
    • Such things will happen so long as we don't elect our police officers and they are only responsible to their superiors which are also... police officers.
    • by blair1q (305137)

      when is the arresting officer going to be charged with violating the civil rights of the videographer?

      When the videographer gets around to it.

    • by nameer (706715)

      That is what this decision is! The title of the suit is:

      SIMON GLIK,
      Plaintiff, Appellee,
      v.
      JOHN CUNNIFFE, in his individual capacity; PETER J. SAVALIS, in
      his individual capacity; JEROME HALL-BREWSTER, in his individual
      capacity; CITY OF BOSTON,

      Glik is filing a law suit against the officers individually and the city of Boston alleging a violation of his civil rights. The defendants claimed that the officers have qualified immunity and are not subject to a law suit. The appellate court has said here that "No, yo

  • by saihung (19097) on Sunday August 28, 2011 @04:40PM (#37236564)

    This isn't a Massachusetts court. This is a federal court that actually knows what the 1st Amendment is, and more importantly thinks that it matters. The Supreme Judicial Court, which is the Massachusetts high court, has had its chance to look at this law more than once, and has come to the wrong conclusion every time. It took a federal court to realize what any moron should know - that prohibiting citizens from recording public officials doing their jobs on a public street is an invitation to abuse.

    • by SkyDude (919251)
      The SJC in MA is not just 'any' moron. They are in a class of morons of their own.If you're from MA as I am, then you know what I mean.
  • by terraformer (617565) <tpb@pervici.com> on Sunday August 28, 2011 @04:50PM (#37236624) Journal

    This ruling is in line with Comm v. Hyde. There is NOTHING new about this ruling, at least regards the recording issue. There is nothing wrong with OPENLY recording cops in MA or anyone else who are speaking in normal voice in public. By being in public, they are forfeiting their privacy. This is inline with 4th Amendment thinking.

    In technical terms, the above is 3rd party recording that is not considered 3rd party eavesdropping because there is no REP (reasonable expectation of privacy).

    Now, what this ruling DOES bring as new is the cops who think that they have veto power over your OPEN recording of them are now on notice, in federal court you have zero shelter from the liability of arresting someone because you don't like that they are recording you in public. This is new. The cops are not being granted qualified immunity and are on the hook for the damages of denying Glik his rights by improperly arresting him. That is a step in the right direction.

    The problem here is if you are recording your interaction with a cop, what does that cop have to do to stop your recording? "Detain" you, that is what. Once they do, for their "safety" of course, they now control your recording equipment and can turn it off. Nothing in the above ruling changes this. They can do this, beat you to a pulp, or just ignore you to illustrate both extremes, and there will be no record of it.

    What has not changed is Comm v. Hyde which makes 2nd party recording a privacy issue. This is not the case in 38 other states but here in MA, people are presumed to have a REP right from secret recording even when the recorders are privy to what is being said. That is absurd if you dissect it, but that is where Hyde dropped us. So for an example, if party A has a conversation with B, A can't record it because B supposedly has a REP privacy right yet A has heard everything B said. They were having a conversation for christ's sake. B gave up their privacy to the statements once they engaged in said conversation. So A can detail the conversation to whomever will listen but if B denies what was said or that the conversation even took place, it becomes a he said, she said situation. Now, who does this protect? It protects B. It protects liars, cheats and thieves. Because it allows them to lie about what took place. There is a line in Hyde where the SJC basically acknowledges this by stating to allow surreptitious recording of cops will allow the citizens to monitor and find corruption.

    • So for an example, if party A has a conversation with B, A can't record it because B supposedly has a REP privacy right yet A has heard everything B said. They were having a conversation for christ's sake. B gave up their privacy to the statements once they engaged in said conversation. So A can detail the conversation to whomever will listen but if B denies what was said or that the conversation even took place, it becomes a he said, she said situation. Now, who does this protect? It protects B. It protects liars, cheats and thieves. Because it allows them to lie about what took place.

      Interesting comments although I disagree with the above. It is perfectly reasonable to not want part of a conversation to be recorded without your knowledge or consent. Privacy does not stop at one individual - a conversation between two people can also be private.

      I also think you have an unrealistic view of human relationships if you think that the constant threat of secret recording wouldn't make our interactions awkward at best, and unmanageable at worst.

      For example, you might in a private conversation

  • by Paracelcus (151056) on Sunday August 28, 2011 @05:23PM (#37236828) Journal

    And the state of Mass get sued for so much that the people finally see the reign of terror that is being visited on the American people is un-American and un-sustainable!

  • IANAL but reading the ruling made it clear to me that in states where wiretapping laws imply that it be done secretly then it's important to hold your recording device in plain sight. Many states define audio wiretapping in terms of "intercepting" the audio which this appellate court has determined to mean "secretly". The ruling states that since Glik was holding his cell phone in plain view then he was not doing anything in secret and thus was not wiretapping. You don't have to annouce that you are taking pictures or videos, however. Just holding it where the officers could have seen it is sufficient. But if they ask you if you are taking videos or pictures or recording then you should probably answer truthfully. YMMV so check your state's laws before relying on this ruling.

    Of course, if officers cannot see it they would be unlikely to arrest you. So apparently just by them noticing the device would be evidence that it was not done in secret and therefore not wiretapping and therefore not "probable cause" for an arrest.

  • by mrflash818 (226638) on Sunday August 28, 2011 @06:00PM (#37237062) Homepage Journal

    We conclude,
    based on the facts alleged, 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. We
    therefore affirm.

    Huzzah.

  • by erroneus (253617) on Sunday August 28, 2011 @06:08PM (#37237102) Homepage

    According to the Wikipedia: http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_First_Circuit [wikipedia.org]

    The states covered by the USCoA for the First Circuit are:

            District of Maine
            District of Massachusetts
            District of New Hampshire
            District of Puerto Rico
            District of Rhode Island

  • by John Jorsett (171560) on Monday August 29, 2011 @02:10PM (#37245124)

    I've long thought that police officers should be required to carry video and/or audio recorders (portable radios already exist that have that feature) that continuously record their actions, and that any interactions with the public that are captured by those recorders have to be made public if the person recorded requests it or it was highly in the public interest (a judge would have to rule on that).

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