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

April 24th, 2014

If Photography Is Not a Crime, When Will Police Get the Message?

In February, just as the City of Baltimore was hammering out a legal settlement to end police interference with photographers, Baltimore police forcibly removed a Baltimore Sun photo editor from the scene of a shooting on a public street. That action underscored a seemingly intractable problem: getting the message to rank-and-file police officers that people have a constitutional right to photograph police carrying out their duties in public.

Judges have repeatedly thrown out criminal charges against photographers arrested while photographing police activities in public. Cities have had to pay to settle claims of civil rights violations stemming from some of the arrests. The City of Boston, for instance, agreed in 2012 to pay $170,000 to settle a videographer’s civil rights claims over his arrest for videotaping police arresting another person on the Boston Common. Baltimore ended up paying $250,000 as part of its recent settlement with Christopher Sharp, who alleged that police erased the videos on his iPhone after detaining him for using the iPhone to record the arrest and beating of another person.

And yet the incidents of police interference with photographers continue apace. No sooner is one case settled, when another incident or claim pops up.

“It certainly is like playing a game of whack-a-mole,” says attorney Mickey Osterreicher of the National Press Photographers Association. (more…)

March 23rd, 2012

Police Intimidation Watch: Beating a Photojournalist on a Lisbon Street

©REUTERS/Hugo Correia

In another horrific incident demonstrating police brutality toward photojournalists, even in Western democracies, a Portuguese policeman attacked AFP photographer Patricia Melo as she covered a general strike in Lisbon yesterday. Workers there were on strike to protest austerity measures imposed on Portugal as a condition of the $100 billion bailout provided to the country by other European nations. Reuters photographer Hugo Correia shot this image, which mirrors this other Reuters image from last October, showing an Athens policeman punching a photographer at an anti-austerity protest in that city.