June 17th, 2014

NH Town Pays $57K to Settle First Amendment Claim in Traffic Stop Video Case

The town of Weare, New Hampshire, has paid $57,000 to settle a federal lawsuit filed by a citizen who was arrested in 2010 after attempting to videotape a traffic stop, according to a report by the New Hampshire Union Leader.

The settlement came after a federal appeals court in Boston affirmed the constitutional rights of citizens to record police during traffic stops, subject to some “reasonable” restrictions.

Plaintiff Carla Gericke claimed in her lawsuit that her First Amendment rights were violated because police charged her with federal wiretapping violations in retaliation for recording them during the traffic stop.

Gericke was in her car, following a friend who was driving another car, when Weare police pulled her friend over in a late-night traffic stop on March 24, 2010. From a nearby parking lot, Gericke waited for her friend–and told the officer who had pulled her friend over that she was going to videotape the encounter. She pointed her camera, but unbeknownst to the police officer, it failed to record.

The officer ordered Gericke to return to her car, and she complied. When another officer arrived at the scene, he asked Gericke where her camera was, but she refused to tell him. She also refused his request to produce her license and registration. She was arrested and charged with disobeying a police officer, and with “unlawful interception of oral communications”–the wiretapping violation.

After prosecutors declined to press those charges against Gericke, she sued Weare police for violation of her First Amendment rights. Police asked the court to dismiss her claim on the grounds of qualified immunity, arguing there was no clearly established right to film a traffic stop.

The lower court declined to dismiss the case, ruling that because the facts of the the case were in dispute, a jury–and not the court–had to decide whether police were entitled to qualified immunity.

Qualified immunity provides government officials “with breathing room to make reasonable but mistaken judgments,” according to court papers.

When the trial court declined to dismiss the case, police appealed.

The appeals court said police would be entitled to summary judgment if Gericke had not been exercising her First Amendment rights at the time of her arrest OR if a reasonable police officer could have concluded that she was not exercising those rights.

In determining that Gericke was exercising her First Amendment rights, The appeals court cited its own 2011 ruling in the case of Simon Glik v. Cunniffee, holding that “the Constitution protects the right of individuals to videotape police officers performing their duties in public.”

“Those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park,” the court said.

Glik had been filming police officers making an arrest in a public park in Boston when he was arrested. He won a $170,000 settlement from the City of Boston in 2012 for violation of his Civil Rights.

In considering whether a reasonable police officer could have concluded that Gericke was not exercising her First Amendment rights, the appeals court noted that “Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them.”

Because traffic stops can be particularly dangerous to police, restrictions might be justified in some instances.  “Reasonable orders to maintain safety and control, which have incidental effects on an individual’s exercise of the First Amendment right to record, may be permissible,” the court said.

But according to Gericke’s version of events, the court found, “no such restriction was imposed or in place” because police hadn’t ordered her to leave the scene, or told her to stop recording.

“Thus, under Gericke’s version of the facts, any reasonable officer would have understood that charging Gericke with illegal wiretapping for attempted filming that had not been limited by any order or law violated her First Amendment right to film,” the appeals court said. (The court accepted Gericke’s version of the facts only for the purposes of deciding whether the case should be dismissed without a trial).

Moreover, the appeals court said, “A jury could supportably find that the officers violated her First Amendment right by filing the wiretapping charge against her because of her attempted filming of [the officer] during the traffic stop.”

Although police still had the option to appeal to the US Supreme Court or argue their case for qualified immunity before a jury, the town of Weare decided to settle the case. It was settled without any admission of wrongdoing on the part of police, according to the New Hampshire Union Leader.

Related:
Police Intimidation Watch: Boston to Pay $170,000 for Wrongful Arrest of Videographer
PDN Video: A Photographer’s Guide to the First Amendment and Dealing with Police Intimidation

February 20th, 2014

PDN Video: A Photographer’s Guide to the First Amendment and Dealing with Police Intimidation

Since the 9/11 terrorist attacks, news photographers have been subject to police intimidation and arrest, as if photography is a crime. But federal law protects photography and photographers, as Mickey Osterreicher, general counsel to the National Press Photographers Association, explains in this video. The challenge for photographers is knowing how to assert your rights in tense situations, without getting arrested. Osterreicher offers practical tips for staying out of trouble while getting the pictures you need. And for photographers unfortunate enough to get arrested, he suggests places to call for legal help.

Related:

Police Intimidation Watch: New Haven Police Sued for Arresting Photographer, Erasing iPhone Video

Police Intimidation Watch: Detroit Police Apologize After Video Shows Them Violating Photographer’s Rights

Police Intimidation Watch: Cop Charged with Lying About a Photographer’s Arrest

March 28th, 2012

Police Intimidation Watch: Boston to Pay $170K for Wrongful Arrest of Videographer

The City of Boston has agreed to pay $170,000 to settle a civil lawsuit for the wrongful arrest of a man for videotaping police as they arrested another man on the Boston Common in 2007.

The settlement, announced yesterday of the American Civil Liberties Union of Massachusetts, resulted from a federal court ruling that the First Amendment protects the right to record police carrying out their duties in a public place. That ruling, issued last August by the US Court of Appeals in Boston, is binding only in New England (excluding Connecticut) and Puerto Rico, where the court has jurisdiction. (Glik v. Cunniffe 655 F.3d 78 (2011))

“[B]ut its persuasive reasoning has been cited by courts and lawyers nationwide facing the recurrent issue of police arresting people for filming them,” the ACLU asserts.

Police have arrested citizens in several states for video taping them, on the grounds that wiretapping statutes in those states prohibit recording anyone without their consent.

“The law had been clear for years that openly recording a video is not a crime,” said Simon Glik, the plaintiff in the Boston case, in the ACLU announcement.

Glik, who is an attorney, was arrested in October, 2007 after he saw police arresting a teenager on the Boston Common, and began making a video of the arrest with his cell phone. Police arrested Glik on criminal charges of illegal wiretapping and disturbing the peace.

After the charges were dismissed, Glik sued the City of Boston on the grounds that Boston police had violated his civil rights. In addition to finding that Glik’s First Amendment rights had been violated, the US Court of Appeals ruled that his Fourth Amendment rights had also be violated on the grounds of wrongful arrest.

Related:
Police Intimidation Watch: Beating a Photojournalist on a Lisbon Street
A Sign of Restive Times: Policeman Punches Photojournalist

March 21st, 2012

Police Intimidation Watch: Journalists Detained for Being Present at a Chicago News Event

Chicago police detained two journalists outside a hospital as they waited on a public sidewalk to interview the family of a young shooting victim, according to the Reporter’s Committee for Freedom of the Press (RCFP).

In this video of the incident, the arresting officer says, “Your First Amendment rights can be terminated if you create a scene. Your First Amendment rights have limitations.” The journalists asked how they were creating a scene, and the arresting officer responded, “Your presence is creating a scene.”


(Note: NBC, which owns this video, may run a short advertisement before it plays)

The journalists, a radio reporter and TV cameraman, were held in a police vehicle and released after ten minutes without charges, according to RCFP.

National Press Photographers Association attorney Mickey Osterreicher, who has been kept busy lately reading the US Constitution to police departments all over the country, sent a letter of protest to the Chicago Superintendent of Police. Osterreicher wrote that it isn’t the duty of police officers “to decide what is appropriate news coverage of any story.

“It is apparent that the two journalists were not charged because…there was no criminal trespass and your officers’ overreaction by detaining them in a catch-and-release manner only served to prevent them from carrying out their professional and lawful function,” Osterreicher wrote. “It was nothing less than a blatant disregard of the First and Fourth Amendment.” (The Fourth Amendment protects citizens from unlawful search and seizure by police.)