Constitutional Law - First Circuit protects right to record public officials discharging duties in public space - Glik v. Cunniffe.

• Author: Haviland, Jane T.
• Position: CASE COMMENT

Constitutional Law--First Circuit Protects Right to Record Public Officials Discharging Duties in Public Space--Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)

The First Amendment protects the freedom of speech and press--liberties that include the right to disseminate certain information concerning governmental activities, including police work. (1) A police officer may defend against a claim of violating a citizen's constitutionally protected right to gather and disseminate information by invoking the doctrine of qualified immunity. (2) Qualified immunity requires the government official to prove the constitutional right allegedly infringed upon was not clearly established at the time of the challenged conduct. (3) In Glik v. Cunniffe, (4) the Court of Appeals for the First Circuit addressed the existence of a constitutional right to film officers discharging their duty in public and assessed whether that right was clearly established at the time Glik did so. (5) The court held that the First Circuit case law clearly establishes a First Amendment right to record public police activity, and therefore the police officers could not invoke the qualified-immunity doctrine. (6)

As he passed the Boston Common--the oldest public park in the country--on October 1, 2007, Simon Glik witnessed three police officers arresting an individual. (7) After hearing one bystander say to the officers, "You are hurting him, stop," Glik began recording the arrest with his cell phone camera. (8) After the officers handcuffed the suspect, one of the officers turned to Glik and said, "I think you have taken enough pictures." (9) Glik responded: "I am recording this. I saw you punch him." (10) After the officers confirmed with Glik that his recording captured sound, the officers arrested Glik for unlawful audio recording in violation of Massachusetts's wiretap statute. (11) While detained at the South Boston police station, officers confiscated Glik's cell phone and a computer flash drive as evidence. (12)

The District Attorney charged Glik with violating the wiretap statute, disturbing the peace, and aiding the escape of a prisoner. (13) After the Commonwealth voluntarily dismissed the charge of aiding in the escape of a prisoner, the Boston Municipal Court, in February 2008, granted Glik's motion to dismiss the final two charges: disturbing the peace, and violating the wiretap statute. (14) The judge found that Glik's exercise of his First Amendment right to film police did not disturb the peace, noting the officers' dislike of Glik's recording did not make this constitutionally protected activity unlawful. (15) The judge also dismissed the wiretap charge for lack of probable cause because the statute requires a secret recording and the officers admitted Glik had recorded openly and in plain view. (16)

Glik filed a civil-rights claim against the arresting officers and the City of Boston, alleging the officers infringed upon his First and Fourth Amendment rights under the United States Constitution. (17) The defendants moved to dismiss, claiming qualified immunity shielded them from liability because the constitutional right to record was not clearly established at the time of the challenged conduct. (18) The district court rejected the defendants' motion, holding the First Circuit case law had clearly established the First Amendment right to publicly record the activities of police officers. (19) On appeal, the First Circuit held Glik exercised a clearly established First Amendment right by recording the activity of police officers in a public space--therefore denying the defendants qualified immunity--and accordingly, Glik's arrest without probable cause violated his Fourth Amendment rights. (20)

When public officials exercise their discretion reasonably, qualified immunity protects them from liability for incidental infringement upon citizens' constitutionally protected rights in suits brought under 42 U.S.C. [section] 1983. (21) When public officials exercise their discretion irresponsibly, they cannot invoke qualified immunity to shield them from liability. (22) To determine eligibility for immunity, the Supreme Court has created a two-pronged test that officials must satisfy: Whether the facts alleged comprise a violation of a constitutional right, and if so, whether the right was clearly established at the time of the violation. (23) To assess whether the right was "clearly established," courts must examine the clarity of the law at the time of the violation, and whether, in light of the facts of a particular case, a reasonable defendant would understand that his conduct violated the plaintiff's constitutional rights. (24)

When determining the level to which the constitutional right has been established, the Supreme Court has advised lower courts to define the contours of the right with caution; the more generally drawn the constitutional right, the easier it is for the plaintiff to claim its clear establishment at the time of the violation. (25) Further, when lower courts exercise their discretion to answer the "clearly established" inquiry first, they must consider the precedential consequences of holding novel or complex constitutional rights as clearly established. (26) The Supreme Court has provided surprisingly little guidance to lower courts regarding precisely how they should draw their precedents for the qualified-immunity analysis. (27) Lower courts have responded differently in assessing whether the First Amendment right to freedom of expression encompasses a right to record video or audio. (28)

Because expressive conduct may take many different forms, and receive protection from a patchwork of constitutional rights, courts struggle to define the limits of this right. (29) Freedom of expression clearly includes speaking, writing, publishing, and other recognizable communicative acts, but other less traditional forms of communication prove more challenging to characterize. (30) The United States Supreme Court has interpreted the First Amendment's protection as extending beyond its literal meaning to incorporate a general freedom to disseminate and receive information and ideas through various forms of expression. (31) While the case law surrounding the First Amendment and its offspring has broadened the contours of the First Amendment right to expression, the right to record public officials carrying out their duties on public property has not yet earned widespread acceptance. (32) In the First Circuit, Iacobucci v. Boulter (33) established the First Amendment right to record public officials during town meetings; however, Iacobucci's Section 1983 claim was rooted in the Fourth Amendment, accusing the defendant officer of lacking probable cause for arrest. (34) Further, Massachusetts's open-meeting law gives any attendee the right to videotape such meetings, buttressing the court's conclusion that such a right was clearly established at the time of Iacobucci's conduct. (35)

In Glik v. Cunniffe, the First Circuit answered the question of whether police officers could invoke qualified immunity after arresting a citizen for openly recording the officers' arrest of an individual on Boston Common. (36) The court began its analysis by considering whether the facts alleged in Glik's complaint showed a violation of his First Amendment rights. (37) Basic First Amendment principles and case law from several circuits guided the court toward holding that the right to record was clearly established. (38) Filming government officials, the court found, "fits comfortably" within the principles established by the Supreme Court regarding the scope of First Amendment protections, which recognize the importance of gathering and disseminating information to support "the free discussion of governmental affairs." (39) The court then explicitly clarified that the First Amendment does not limit the right to gather information about public officials to only reporters; the right extends equally to private individuals. (40)

In assessing the "clearly established" prong of the qualified-immunity analysis, the court turned to Iacobucci as its First Circuit case on point establishing the right to record public officials in public places. (41) The court found notable the brevity of discussion surrounding the right to record established in Iacobucci. (42) From this brevity, the court had "no trouble" concluding that the police officers had fair warning their conduct was unconstitutional because the state of the law at the time of the violation was sufficiently clear. (43) The court dismissed the cases upon which respondents relied to cast doubt on the establishment of the right to record. (44) One such case, an unpublished opinion, lacked precedential value, while the other denied the existence of the right in the context of a traffic stop--"worlds apart" from Glik's arrest for conspicuously recording police making an arrest in Boston Common. (45) According to the court, even if cases from other circuits cast doubt on the clarity of the right to record, First Circuit precedent declared the right need only be clearly established within its own circuit for qualified-immunity purposes. (46) While subject to reasonable time, place, and manner restrictions, the court held that the right to record public officials discharging their duties in public space was a clearly established liberty protected by the First Amendment. (47)

Though the First Circuit had discretion in sequencing its two-part qualified-immunity analysis, it first answered whether a constitutional violation occurred according to the facts alleged, and narrowly framed the constitutional right. (48) However, when extrapolating upon well-established First Amendment liberties, the court lumped together subtly different rights to form the legs upon which the freedom to record could stand, failing to first evaluate the threshold question of whether recording the officers' activity...