Boston Cops Still Don’t Understand that People Have the Right to Videotape Them in Public

While recently videotaping a Boston police officer making an arrest on a city street, a man named Max Bickford had his phone forcibly taken away from him by the arresting officer according to boston.com, which reported Bickford’s story.  The website posted the cellphone video, in which the cop can be seen sarcastically thanking Bickford and then approaching him and appearing to grab the phone out of his hand.

In 2007, a man named Simon Glik was walking in the Boston Common when he saw three Boston police officers making an arrest.  Glik stopped and began video and audio recording the arrest with his cell phone.  Once the arrestee was handcuffed, the officers asked Glik whether his cell phone recorded audio.  Upon confirming that it did, Glik was arrested and charged with violating the state wiretapping law, disorderly conduct, and aiding the escape of a prisoner.  The aiding an escape charge was dismissed by the prosecutor, and a Boston Municipal Court judge dismissed the remaining charges.  The judge ruled that Glik’s videotaping was protected by the First Amendment to the United States Constitution, and he could not be punished pursuant to the wiretap statute, because that law prohibited only secret audio recordings.  Glik was recording the officers openly and in plain view.

After the criminal charges against Glik were dismissed, he sued the officers and the city of Boston in federal court, arguing that the officers had violated his First Amendment right to free speech and his Fourth Amendment right to be free from unlawful arrest.  The officers and the city argued that previous cases had not clearly established that Glik had the First Amendment right to videotape the officers, and the officers were therefore immune from liability.  The First Circuit Court of Appeals rejected the officers’ arguments.

The Court said the First Amendment unquestionably protects the filming of government officials while they perform their duties in public places, including police officers who are arresting suspects.  The Court noted that it is particularly important for the public to observe police officers, “who are granted substantial discretion that may be misused to deprive individuals of their liberties.”  The Court also said it made no difference whether the person videotaping the government official was a professional journalist or a private citizen, as the Constitutional offers equal access to the public and the press.  The Court also recognized that with today’s technology, a story is just as likely to be broken by a blogger with a smart phone as a reporter at a major newspaper.  The Court concluded that Glik’s conduct was protected by the First Amendment, and accordingly declined to dismiss the case against the police officers and the city.  Following the First Circuit’s decision, the city reportedly settled with Glik for $170,000.

One of two things happened here, and neither possibility is good.  Either the Boston Police Department failed to train all of its officers that members of the public are constitutionally entitled to videotape them; or this particular officer received such training and still couldn’t help himself from lashing out at Bickford and apparently grabbing his cell phone.  Whether this case resulted from the stupidity of the police department or the stupidity of the police officer, the city of Boston might again find itself writing a large check to settle a completely avoidable lawsuit.