The Police, the Public, and the Video Recorder

A very interesting New York Times article has come to our attention. It discusses the increasing use of video cameras (including body-mounted cameras) by both the police and the public, and notes that the issue of citizens videotaping police in the performance of their duties is coming up nationwide.

The United States Court of Appeals for the Second Circuit, which covers New York, still hasn’t directly addressed the issue (see our entry of July 27, 2011); but an opinion out of the First Circuit, which is next door in Massachusetts, has handed a major victory to those who believe the First Amendment protects the right to record police activity.

The case is Glik v. Cunniffe and in a nutshell the scenario goes like this: Simon Glik was arrested for videotaping another man’s arrest. The charges were dismissed, and Mr. Glik sued the arresting officers.

The officers countered by demanding that Mr. Glik’s complaint be dismissed. It made no difference whether his version of the relevant events were true, they argued: they had ‘qualified immunity’ (an official can’t be sued for actions taken on the job, if he or she is going about that job in a reasonable way). An officer isn’t entitled to qualified immunty, though, if his action violates a ‘clearly established’ constitutional right. The trial court refused to dismiss the case, and the officers appealed.

So the issue was squarely before the First Circuit Court of Appeals: is there a constitutionally protected right to videotape police carrying out their duties in public? The court concluded that “[b]asic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.” Furthermore, based on its own prior decisions, the court had “no trouble concluding that ‘the state of the law at the time of the alleged violation gave the defendant[s] fair warning that [their] particular conduct was unconstitutional’.”

The opinion did acknowledge that courts of appeal in other circuits have, arguably, come to other conclusions. Specifically, the Third and Fourth Circuit have both stated that the public’s right to videotape the police was by no means clearly established. The First Circuit discounted the precedential force of the Fourth Circuit’s (unpublished) decision and distinguished on its facts the Third Circuit decision (Kelly v. Borough of Carlysle, which we mentioned in our earlier entry). But the court went further, stating that

even if these cases were to establish a circuit split with respect to the clarity of the First Amendment’s protections in the situation before us, that split would not undermine our conclusion that the right violated by appellants was clearly established in this circuit at the time of Glik’s arrest.

In New York, of course, there is no law expressly forbidding citizens from openly recording police activity that takes place in public. Based on the outcome of the Emily Good case there would seem to be some consensus that merely videotaping an officer at work (from a proper distance) isn’t obstruction of governmental administration.

If only because of this, however, the issue of constitutional protection for videotaping police officers hasn’t yet been addressed here (although it may come up in Ms. Good’s civil suit). We believe that New Yorkers have a constitutionally protected right to videotape police carrying out their duties in public. But we won’t know whether that right is clearly established until the Second Circuit tells us so.