Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) is a case in which the United States Court of Appeals for the First Circuit held that a private citizen has the right to record video and audio of police carrying out their duties in a public place, and that the arrest of the citizen for a wiretapping violation violated his First and Fourth Amendment rights. The case arose when Simon Glik filmed Boston, Massachusetts, police officers from the bicycle unit making an arrest in a public park. When the officers observed that Glik was recording the arrest, they arrested him and Glik was subsequently charged with wiretapping, disturbing the peace, and aiding in the escape of a prisoner. Glik then sued the City of Boston and the arresting officers, claiming that they violated his constitutional rights.
In a unanimous decision, the United States Court of Appeals for the First Circuit held that the officers violated Glik's constitutional rights and that the officers were not entitled to qualified immunity. The Court ruled that the right to film the police carrying out their duties in public was "clearly established", and that Glik's actions did not violate state law. However, the court also noted that the right to film public officials was subject to reasonable limitations with respect to the time, place and manner in which the recording was conducted. After losing the appeal, Boston reached a settlement with Glik in which they agreed to pay him $170,000 in damages and attorney's fees. This was the first case in which a United States Circuit Court of Appeals explicitly ruled that private citizens have a right to film police officers in public spaces. The case drew media attention across the United States, and was also cited favorably by other United States Circuit Courts of Appeals that reached similar conclusions in other cases.
Background On October 1, 2007 while walking in Boston Common, Simon Glik saw an arrest by Boston Bicycle Unit police officers John Cunniffe, Peter Savalis, and Jerome Hall-Brewster.Glik v. Cunniffe, ; Caycee Hampton, Confirmation of a Catch-22: Glik v. Cunniffe and the Paradox of Citizen Recording, 63 1549 (2011); Van Tassell, 2013 at 183. Glik began recording the arrest after he heard a bystander say "[y]ou are hurting him, stop".Jane T. Haviland, 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) , 45 1329, 1329 (2012) (internal quotations omitted); see also Glik, 655 F.3d at 80; Steven A. Lautt, Sunlight Is Still the Best Disinfectant: The Case for a First Amendment Right to Record the Police 51 349, 362 (2012). Because Glik was concerned that the officers were using excessive force, he filmed the encounter with his cell phone.Michael Potere, Who Will Watch the Watchmen?: Citizens Recording Police Conduct (2012); Van Tassell, 2013 at 183; Justin Welply, When, Where and Why the First Amendment Protects the Right to Record Police Communications: A Substantial Interference Guideline for Determining the Scope of the Right to Record and for Revamping Restrictive State Wiretapping Laws, 57 1085, 1103 (2013). Although Glik was 10 feet away and was not interfering with the arrest, one of the officers turned to him after placing handcuffs on the suspect and said "I think you have taken enough pictures".Glik, 655 F.3d at 80; Jane T. Haviland, 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) , 45 1329, 1329 (2012) (internal quotations omitted). Glik replied that he was recording the incident; he said, "I am recording this. I saw you punch him".Jane T. Haviland, 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) , 45 1329, 1329–30 (2012) (internal quotations omitted). When the officer determined that this included audio, he placed Glik under arrest for violating the Massachusetts wiretapping law.Glik, 655 F.3d at 80; Lautt, 51 at 362; Van Tassell, 2013 at 183; Daniel Rowinski, Police Fight Cellphone Recordings , , Jan. 12, 2010.
Glik was charged with wiretapping, disturbing the peace, and aiding in the escape of a prisoner.Glik, 655 F.3d at 80; 7 (Woodrow Barfield ed., 2d ed. 2015); Hampton, 63 at 1549. He was taken to the South Boston police station and his cell phone and a computer flash drive were held as evidence.Glik, 655 F.3d at 80; Rowinski, Police Fight Cellphone Recordings. The Commonwealth dropped the charge of aiding in escape prior to trial.Glik, 655 F.3d at 80; Matthew Aulin Crist, You Have the Right to Remain Vigilant: Law Enforcement Officers' Unconstitutional Responses to Being Recorded, 91 77, 79 (2014). The Boston Municipal Court dismissed the other two counts in February 2008, noting that there was no probable cause for the wiretapping arrest and that the officers were unhappy about being recorded.Glik, 655 F.3d at 80; Commonwealth v. Glik, No. 0701-CR-6687 (Bos. Mun. Ct. Jan. 31, 2008); Alderman, 33 at 490 n.20; Lautt, 51 at 349.
Glik then filed a complaint with the Internal Affairs section of the Boston Police Department.Glik, 655 F.3d at 80; Alderman, 33 at 490. After the department refused to investigate that legitimate complaint,Alderman, 33 at 490. Glik, represented by Sarah Wunsch of the American Civil Liberties Union and attorneys David Milton and Howard Friedman, filed a civil rights lawsuit against the officers and the city, alleging violations of his First and Fourth Amendment rights.Glik, 655 F.3d at 80; Hampton, '63 at 1549–1550; Van Tassell, 2013 at 183; Sheri Qualters, Boston Lawyer Sues Police, City Over His Arrest for Recording an Arrest , Law.com, (Feb. 2, 2010). The officers moved for dismissal, based in part on qualified immunity. The United States District Court for the District of Massachusetts denied the motion, noting that "this First Amendment right publicly to record the activities of police officers on public business is established."Glik, 655 F.3d at 80; Hampton, '63 at 1550–1551; Lautt, 51 at 349.
The officers then made an interlocutory appeal of the denial to the First Circuit Court of Appeals.Glik, 655 F.3d at 80; Lautt, 51 at 349.
Opinion of the court In a unanimous decision written by Judge Kermit Lipez, the First Circuit Court of Appeals held that the officers violated Glik's constitutional rights.Glik, 655 F.3d at 79, 89. The court noted the principle of qualified immunity balanced the need to hold public officials accountable with the need to shield such officials from harassment on account of their public duties.Glik, 655 F.3d at 81; Hampton, 63 at 1551. The court therefore applied a two-part test: first, did the facts alleged by the plaintiff show a violation of a constitutional right, and second, was the right clearly established at the time of the violation.Glik, 655 F.3d at 81; Hampton, 63 at 1551–52.
The court first addressed the question of whether Glik's First Amendment rights had been violated. It noted that "we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties"Glik, 655 F.3d at 81. and held that Glik had a constitutional right to videotape a public official in a public place.Hampton, 63 at 1550–1551. The court noted that this was not limited to reporters and journalists, but a right of all citizens, subject to reasonable limitations of time, place and manner. The First Circuit concluded that in the current case, none of those limitations applied.Glik, 655 F.3d at 84; Lautt, 51 at 349.
Second, the court looked at whether the right to videotape was clearly established at the time of the arrest. The court had "no trouble concluding that 'the state of the law at the time of the alleged violation gave the defendant[s] fair warning that [their] particular conduct was unconstitutional.'"Glik, 655 F.3d at 81; Hampton, 63 at 1552 (brackets in original). The court noted that some constitution violations are "self-evident"Glik, 655 F.3d at 85; Hampton, 63 at 1555. and the right to film police carrying out their duties in public was clearly establishedHampton, 63 at 1550–1551; Van Tassell, 2013 at 183. a decade prior to Glik's arrest.Potere, at 290.
Next, the court determined if Glik's Fourth Amendment rights had been violated. The court noted that an arrest must be based upon probable cause. Glik argued that the officers lacked probable cause when they made the arrest, while the officers argued that the allegations in the complaint established that they had probable cause to arrest Glik for violating the wiretap statute. The court looked to the Massachusetts Supreme Judicial Court for the determination of state law. The Massachusetts court required that the recording be made secretly to be a violation, and that when a camera was in plain sight, a recording from that camera cannot be considered "secret" under state law. In Glik's case, the criminal complaint stated that he had "openly record[ed] the police officers",Glik, 655 F.3d at 85 (brackets in original). the recording was not made in secret, and that therefore the officers had no probable cause to arrest Glik.Hampton, 63 at 1556. Since there was no probable cause, Glik's Fourth Amendment rights were violated.Glik, 655 F.3d at 88; Van Tassell, 2013 at 183; Marianne F. Kies, Policing the Police: Freedom of the Press, the Right to Privacy, and Civilian Recordings of Police Activity , 80 274 (2011).
Finally, the court determined that the absence of probable cause as a constitutional violation was clearly established in law. The court therefore held that the district court's denial of the officers of qualified immunity was proper, affirming the decision.Glik, 655 F.3d at 89; Barfield, 7; Lautt, 51 at 349.
Subsequent developments Despite his victory in court, the case had negative repercussions for Glik, an attorney, who had difficulty obtaining employment as a prosecutor while criminal charges were pending against him. He is now a criminal defense lawyer.Dustin F. Robinson, Bad Footage: Surveillance Laws, Police Misconduct, and the Internet , 100 1399, 1409 (2012). After losing the appeal, Boston settled the lawsuit for $170,000, paying Glik for damages and legal fees.Alderman, 33 at 489; Timothy B. Lee, Boston PD Admits Arrest for Cell Phone Recording was a Mistake , Ars Technica (Jan. 10, 2012); Boston Settled Police Videotaping Lawsuit, Boston Globe, Mar. 27, 2012. Additionally, the city reversed its earlier opinion that the officers had done nothing wrong, stating that the officers had shown "unreasonable judgement" by arresting Glik. In 2012, a Boston Police Department spokesperson stated that the officers involved in the case stood to face "discipline ranging from an oral reprimand to suspension".Timothy B. Lee, Boston PD Admits Arrest for Cell Phone Recording was a Mistake , (Jan 10, 2012). The Boston Police Department now trains its officers not to arrest people for openly recording them in public.Timothy B. Lee, Boston Pays $170K to Settle Cell Phone Recording Lawsuit , Ars Technica (Mar. 27, 2012).
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