Just when you thought the right to record cops in public has been firmly established, along comes another court decision that further confirms it is legal, especially when it comes to traffic stops, but also reveals how much more work needs to be done to settle the matter once and for all.
In other words, expect more arrests. Expect more lawsuits. And expect more court rulings.
And expect more cops claiming qualified immunity after making those arrests, insisting they were ignorant of the law when they incarcerate people for recording them in public.
The latest ruling, Gericke vs Weare, comes to us from New Hampshire, which is part of the First Circuit Court of Appeals, the same circuit that gave us Glik vs Boston, which we had assumed already settled the matter; at least in that circuit, which includes Massachusetts, New Hampshire, Maine and Rhode Island and Puerto Rico (for diversity’s sake).
But while the Glik decision confirmed we have the right to record cops in public, it didn’t go as far as saying we have the right to record traffic stops, even if they also take place in public.
In fact, the Glik decision referred to an earlier Third Circuit decision from Pennsylvania in which a young man was arrested for video recording a cop during a traffic stop from the passenger’s seat in 2007.
That decision gave the cops qualified immunity from being sued, stating that there is “insufficient case law establishing a right to videotape police officers during a traffic stop” because they can lead to an “inherently dangerous situation” for police officers.
Never mind the fact that traffic stops tend to be more dangerous for citizens than cops. According to the Glik decision, which stated that traffic stops are “worlds apart” from an arrest in a public park:
The second case appellants cite is a Third Circuit opinion finding the right to film not clearly established in the context of a traffic stop, characterized as an “inherently dangerous situation.” Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir.2010). Kelly is clearly distinguishable on its facts; a traffic stop is worlds apart from an arrest on the Boston Common in the circumstances alleged. Nonetheless, even if these cases were to establish a circuit split with respect to the clarity of the First Amendment’s protections in the situation before us, that split would not undermine our conclusion that the right violated by appellants was clearly established in this circuit at the time of Glik’s arrest. See Newman v. Massachusetts, 884 F.2d 19, 25 (1st Cir.1989) (finding constitutional right clearly established in the First Circuit despite “recogni[tion] that the courts are not yet unanimous on whether this … right exists”).
While it’s true that an Arizona cop was killed while making a traffic stop last month, it’s also true that an Oklahoma cop opened fire on a couple of teenagers making out in a school parking lot last month.
And it’s also true that a North Carolina deputy opened fire on a 70-year-old man during a traffic stop because he had reached into the bed of his pickup truck and grabbed a cane, making the cop fear for his life.
Then there’s the case of Philadelphia cops opening fire on a pizza delivery man during a traffic stop, striking him in the head. And let’s not forget the case of New Mexico police opening fire in a minivan filled with kids during a traffic stop last year.
Those are just the ones that came up during a two-click Google search, but we hear about those incidents much more than we hear about cops getting killed during traffic stops, despite the fact that the latter stories get much more coverage than the former stories, with follow-up stories of funeral processions and lowered flags and Amazing Grace and talking heads informing us just how dangerous police work can be when they’re trying their best to keep us safe.
So we can all agree that traffic stops can lead to inherently dangerous situations – for both the cop and the citizen – which is why recording traffic stops should not only be allowed, but encouraged.
And while the latest decision out of New Hampshire doesn’t even come close to encouraging citizens to record their own traffic stops, it comes closer to establishing that police have no right to prevent us from recording them in public.
This decision, coupled with ACLU vs Alvarez out of the Seventh Circuit, which includes Illinois, Indiana and Wisconsin, and which determined that the Illinois eavesdropping law was unconstitutional because it allowed cops to arrest citizens who record them in public, even openly, if they did not ask for consent, gets us closer to fully establishing that right on a national level as far as the federal courts are concerned.
In the Gericke case, Carla Gericke was driving her car, following a friend in another car, when a cop pulled up behind them and turned on his emergency lights.
She pulled over as well as her friend, but the cop told her he was only interesed in her friend, telling her to leave the area. She told him she would move her car to a side parking lot and wait. The cop didn’t have an issue with that.
During the stop, Gericke’s friend, Tyler Hanslin, informed the cop that he was legally carrying a weapon, which prompted the cop, Joseph Kelley, to have him step out of the car.
Gericke, meanwhile, was standing in the parking lot, on the other side of a fence, announcing that she was recording.
The cop told her to step back in her car, which she did. She then placed the camera on her dash as if she was recording, but it turns out, she wasn’t recording because of some technical mishap.
Nevertheless, she was arrested for wiretapping, obstructing and disobeying a lawful order; charges that were eventually dismissed.
She filed suit, but police took the usual route of asking for qualified immunity because ignorance of the law has proven to be a reliable excuse for those that enforce the law.
But the First Circuit Court of Appeals, after refusing to include traffic stops in its Glik decision, decided that Gericke not only had the First Amendment right to record the traffic stop, but that the cops should have known that.
However, it could have easily gone the other way had Hanslin decided to record his own stop while acknowledging he was legally armed because it could have been interpreted as an “inherently dangerous situation.”
“The courts are doing this incrementally,” said Mickey Osterreicher, general counsel of the National Press Photographers Association.
“That’s how case law gets built. One brick at a time. Little by little, almost every circuit will come into compliance.”