The police do not like to have citizens record what they are doing. They tell citizens to stop doing it. They confiscate people’s cell phones. But the court system is increasingly saying that the police do not have the right to do this.
Police now work in a YouTube world in which cell phones double as cameras, news helicopters transmit close-up footage of unfolding police pursuits, and surveillance cameras capture arrests or shootings. Police officials are increasingly recording their officers. Compared to the cops who beat [Rodney] King, officers these days hit the streets with a new reality ingrained in their minds: Someone is always watching.
This is good for citizens and bad for police officers who act illegally in public.
It wasn’t until Simon Glik videotaped a violent police arrest of an alleged drug offender on the Boston Common in October of 2007, however, that courts began to make clear that such recordings are legal and proper and protected by the Bill of Rights.
Glik was walking by the Boston Common on the evening of October 1 when he saw three police officers attempting to arrest a young man using what he thought was excessive force. When Glik heard another bystander yell at the police: “You’re hurting him! Stop!” he opened his cell phone and began recording the event. After the suspect had been subdued and placed in the back of a police cruiser, one of the officers turned to Glik and said, “I think you have taken enough pictures.” To which Glik replied, “I am recording this. I saw you punch him.” The officer then arrested Glik, put him in handcuffs, and charged him with violating Massachusetts’ wiretap law, disturbing the peace, and aiding in the escape of a prisoner.
When Glik filed an internal affairs complaint with the police department, nothing came of it. In February 2010 Glik, with the help of David Milton, an ACLU lawyer, filed a civil rights action in the U.S. District Court for the District of Massachusetts, claiming that his rights under the First and Fourth Amendment had been violated.
When the three officers named in the action tried to have it quashed, the judge ruled that Glik’s “First Amendment right publicly to record the activities of police officers on public business is established,” and threw out the officers’ demand.
The case then moved forward and was decided in favor of Glik on August 16, 2011.
Police around the nation routinely ignore this, but word is getting out to police departments. They are at risk of a lawsuit if they violate the rights of cell phone owners whose cell phones have video capacity. The court said this.
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.
This issue has not been taken up by the U.S. Supreme Court. It is not yet the law of the land. But it is heading in the right direction.
The U.S. Department of Justice favors the cell phone users. It has stated the following.
This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative. The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.