FILMING THE POLICE AS CITIZEN-JOURNALISTS--A TALE OF TWO HEROES: WHAT THEY DID, WHY THEY COULD DO IT, AND THE CONSEQUENCES FOR THE RACIAL DIVIDE IN THIS COUNTRY.

• Author: Lipez, Kermit V.

1. INTRODUCTION

   On Yom Kippur I gave a talk at the Etz Chaim synagogue in Portland, Maine, discussing a decision I wrote about ten years ago for the First Circuit, Glik v. Cunniffe. (1) Although discussing an appellate opinion during a religious service on the holiest day of the year might seem an odd choice, I thought it was appropriate for several reasons. The Glik decision helped establish the right of a bystander in Minneapolis to take the shocking video of Officer Derek Chauvin killing George Floyd. That video, and others like it, have changed the nature of policing in this country, and they have intensified the debate about racial injustice.

   We say this prayer on Yom Kippur:

   Justice, justice shall you pursue, that you may live; do good and not evil, that you may live.

   The Glik case, and its implications, are all about justice--for individuals treated unjustly by the police, for those challenging the conduct of the police in the courtroom, and for a Black minority struggling with racism in this country. These issues are closely connected. As I explain those connections, I wish to emphasize that I have enormous respect for police officers and the indispensable work that they do. But I cannot tell the story that I wish to tell without casting a harsh light on some aspects of police work.

2. THE HEROES

   There are two heroes in this story. The first one is Darnella Frazier, the African-American teenager, seventeen-years-old at the time, who video-recorded the murder of George Floyd on May 25, 2020, in Minneapolis. Frazier was walking to a local convenience store, Cup Foods, with her nine-year-old cousin to get some snacks. She lived nearby and had made that walk many times over the years. As Frazier and her cousin approached the store, they walked past a parked police car. Behind that car, Derek Chauvin and three other police officers had surrounded Floyd. As Frazier later described it at Chauvin's trial, she saw "a man on the ground and... a cop kneeling down on him." (2) Not wanting her cousin to see "a man terrified, scared, begging for his life," Frazier walked her cousin to the store entrance. She then stayed outside because "it wasn't right." She could tell that Floyd "was suffering, he was in pain." So "I opened my phone and started recording because I knew if I didn't, no one would believe me." (3) Twenty seconds after she started recording, Floyd said, "I can't breathe." Frazier filmed the scene for nine minutes and twenty seconds until Floyd, already dead, was carried away by medics. (4)

   So why was Darnella Frazier able to record that scene? The officers knew that she had her smartphone trained on them. They surely would have preferred to stop the recording. In the not-too-distant past, they would have stopped her, on the theory that she was interfering with their work. But they were not able to stop her because of the second hero in this story.

   His name is Simon Glik, a Jewish, Russian immigrant from Moscow who came to this country decades ago and now practices law in the Boston area. (5) Frazier and Glik are connected by the Glik decision. In my thirty-six years as a judge--state, federal, trial, and appellate--I have written approximately 1,500 opinions. The decision I wrote connecting Glik and Frazier is surely the most important opinion that I have ever written, and it will probably remain so.

   Glik's story begins on the evening of October 1, 2007, when he was walking by the Boston Common, the oldest public park in America. (6) The Boston Common is an iconic public space and the setting for protests and celebrations from colonial times to the Civil Rights era. Protests continue to be held there. It is a quintessential setting for the exercise of free speech and public assembly. (7)

   On his walk, Glik noticed three police officers arresting a young man on the Common. (8) Then he heard a bystander say, "You are hurting him, stop." (9) Concerned that the officers were using excessive force to make the arrest, Glik stood about ten feet from the officers and began recording video footage of the arrest on his cell-phone. (10)

   After placing the suspect in handcuffs, one of the officers turned to Glik and said, "I think you have taken enough pictures." (11) Glik replied: "I am recording this. I saw you punch him." (12) Another officer then approached Glik and asked if his cellphone recorded audio. (13) When Glik said it did, the officer arrested him for unlawful audio recording in violation of the Massachusetts wiretap statute. (14) Glik was taken in cuffs to the South Boston police station, (15) where the police confiscated his cellphone and a computer flash drive and held them as evidence. (16) Later, the police added charges of disturbing the peace and aiding in the escape of a prisoner. (17)

   The prosecution soon withdrew the escape charge. (18) A Boston municipal judge then dismissed the disturbing-the-peace and wiretap charges. (19) Angered by the contrived charges, Glik filed a federal civil rights lawsuit in February 2010 against the arresting officers and the City of Boston, claiming that the arrest had violated his First Amendment rights. (20)

3. QUALIFIED IMMUNITY

   Relying primarily on the doctrine of qualified immunity, the defendants moved to dismiss the complaint because, in their words, "it is not well-settled that [Glik] had a constitutional right to record the officers." (21) After the district court denied their motion, the defendants immediately appealed, again relying on qualified immunity. (22) The officers claimed that they could not be sued for damages because they could have reasonably believed that Glik did not have a First Amendment right to record their conduct. (23)

   The doctrine of qualified immunity, which applies to government officials generally, was in the news recently because of a police reform measure--the George Floyd Justice in Policing Act--that was under consideration by Congress. (24) The doctrine "balances two important interests--the need to hold public officials accountable when they exercise power irresponsibly, and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." (25) Largely along party lines, Democrats pushed to eliminate the doctrine in its application to the police because they believe that it supports bad police behavior. Republicans resisted the reform measures, believing that qualified immunity gives the police important protections. (26)

   In its application, the qualified immunity defense poses two questions. First, did the government officials violate a constitutional right of the plaintiff; second, was that right clearly established at the time so that the officials should have known that what they did to the plaintiff was wrong. (27) If either question is answered no--there was no violation of a constitutional right, or the right was not clearly established at the time of the violation--the defendants are entitled to immunity from any claim for damages.

4. THE GLIK DECISION

   The Boston police officers wanted our panel to focus first on the clearly established law question, arguing that even if they had violated Glik's First Amendment rights, his right to record their conduct was not clearly established at the time of his arrest. (28) This approach--assuming that the right at issue exists but then deciding that it was not clearly established--would have allowed the officers to prevail without our court ruling that Glik had a First Amendment right to record their conduct. (29) The Supreme Court has explicitly permitted courts to take this approach. (30) But we wanted no part of it here. The First Amendment issue at the heart of the case was too important to avoid.

   By its terms, the language of the First Amendment only prohibits laws "abridging the freedom of speech, or of the press." (31) It says nothing about the gathering or dissemination of information by the public. But the Supreme Court long ago established that "the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." (32) Also, the Supreme Court had established that "[t]here is an undoubted right to gather news from any source by means within the law." (33) Citing that authority, I wrote a decision for our panel concluding that "[t]he filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles." (34)

   We also made the important point that the public's right of access to information is co-extensive with that of the press, and that changes in technology had blurred the lines between private citizens and journalists. (35) As we said in a prophetic statement:

   The proliferation of electronic devices with video-recording capability means that many of our images of...