Glik v. Cunniffe

Simon Glik v. John Cunniffe, et al., No. 10-1764 (1st Cir. 2011)

TLDR for Glik v. Cunniffe

• This case is about whether a private citizen had a First Amendment right to openly video and audio record police officers performing their duties in a public space, and whether his arrest for doing so violated his Fourth Amendment rights due to a lack of probable cause.
• Simon Glik was arrested for openly filming Boston police officers with his cell phone in Boston Common, including recording audio, under Massachusetts’s wiretap statute.
• The charges against Glik were dismissed.
• The First Circuit Court of Appeals found that openly recording police officers in public is protected under the First Amendment and that this right was “clearly established”.
• The court also found that Glik’s recording was not “secret” under the Massachusetts wiretap statute, meaning the officers lacked probable cause for his arrest, thereby violating his Fourth Amendment rights.
• The First Circuit affirmed the district court’s denial of qualified immunity for the officers.

Summary of Glik v. Cunniffe

In Simon Glik v. John Cunniffe, et al., the First Circuit Court of Appeals affirmed a lower court’s decision, ruling that an individual’s open recording of police officers performing their duties in public is a constitutionally protected activity under the First Amendment. The case arose when Simon Glik used his cell phone to film Boston police officers making an arrest on the Boston Common, openly recording both video and audio. He was subsequently arrested and charged with violating Massachusetts’s wiretap statute, among other offenses, though these charges were later dismissed. Glik then sued the officers, alleging violations of his First and Fourth Amendment rights.

The court determined that filming government officials engaged in their duties in a public place serves a “cardinal First Amendment interest” in protecting and promoting the free discussion of governmental affairs. It recognized that such recording is crucial for public accountability and the uncovering of potential abuses, noting that this right extends to private individuals, not just professional journalists, especially with the proliferation of modern recording technology. The court concluded that Glik’s peaceful recording in a public forum, from a “comfortable remove,” was well within constitutional protections and was not reasonably subject to limitation.

Furthermore, the First Circuit found that the officers had violated Glik’s Fourth Amendment rights because they lacked probable cause for his arrest. Central to this was the interpretation of the Massachusetts wiretap statute, which criminalizes “secretly” recording conversations. The court reasoned that Glik’s recording was not secret, as he openly used his cell phone, and the officers were aware of his surveillance. Therefore, there was no arguable basis for probable cause to arrest Glik under that statute. Consequently, the officers were not entitled to qualified immunity.

Arguments Supporting Glik’s Claim:

• Recording as Protected Speech: Glik argued that his act of openly filming police officers in a public space was an exercise of his First Amendment rights to gather and disseminate information. The court agreed, equating it to other forms of newsgathering and emphasizing its importance for transparency and public oversight of government officials, particularly law enforcement.
• Right to Gather News for All: Glik’s claim was bolstered by the principle that the First Amendment right to gather news is not exclusive to the press but is coextensive with the public’s right of access to information. The court acknowledged that modern technology blurs the lines between private citizens and journalists, making this distinction irrelevant for First Amendment protections.
• Lack of Probable Cause for Arrest: Glik contended that his arrest for violating the Massachusetts wiretap statute lacked probable cause because his recording was not “secret”. He openly used his cell phone, and the officers were aware of his filming, rendering the statute inapplicable based on its “secret recording” requirement.
• Clearly Established Rights: Glik argued that both his First and Fourth Amendment rights were “clearly established” at the time of his arrest, thus denying the officers qualified immunity.

Arguments Against Glik’s Claim (Presented by the Police Officers):

• Unclear First Amendment Right: The officers argued that the First Amendment right to record police officers performing their public duties was not “clearly established” at the time of Glik’s arrest. They cited an unpublished Fourth Circuit opinion and a Third Circuit case (which was distinguishable on facts) to support this.
• Probable Cause for Wiretap Violation: The officers maintained that they had probable cause to arrest Glik under the Massachusetts wiretap statute. They suggested that merely holding a cell phone, which has many functions, might not have provided sufficient notice that audio was being recorded, thus potentially making the recording “secret” from their perspective.
• Qualified Immunity: The officers sought qualified immunity, arguing that even if Glik’s rights were violated, a reasonable officer in their position would not have understood that their conduct was unconstitutional given the state of the law at the time.

The Level of Scrutiny Applied to Glik’s Claim

While Glik v. Cunniffe primarily dealt with the “clearly established” prong of qualified immunity rather than applying a specific level of scrutiny to a statute, the court’s language underscored the fundamental and virtually self-evident nature of the First Amendment’s protections in this area. The First Circuit asserted that the right to film government officials in public spaces was “firmly established” by basic First Amendment principles and prior case law. The court found that Glik’s peaceful recording in a traditional public forum was well within constitutional bounds and not subject to limitation on the facts alleged. This indicates a strong presumption in favor of the First Amendment right, requiring the government (or in this case, the officers seeking immunity) to overcome a significant hurdle to justify its curtailment.

Other Related Cases

• ACLU v. Alvarez: The Seventh Circuit in ACLU v. Alvarez referenced Glik v. Cunniffe as precedent, stating that the First Circuit had ruled that openly recording police officers in public is protected under the First Amendment, emphasizing its importance for public accountability.
• Iacobucci v. Boulter: The First Circuit relied on its own prior ruling in Iacobucci to establish that the right to film government officials in public spaces was clearly established within its circuit.
• Kelly v. Borough of Carlisle: The Third Circuit reached a different conclusion regarding qualified immunity in a traffic stop context, which the First Circuit in Glik distinguished, noting that a traffic stop is “worlds apart” from an arrest on the Boston Common. The Glik court emphasized that Kelly dealt with a different factual scenario and did not undermine the clarity of the right in the First Circuit.

Key Takeaway:

Glik v. Cunniffe solidified the understanding that citizens possess a fundamental and clearly established First Amendment right to openly record police officers performing their duties in public spaces. This ruling emphasizes the vital role of public oversight in ensuring government transparency and accountability. It also provided crucial clarification that recording made openly, with the subjects’ awareness, does not constitute a “secret” recording, thereby limiting the applicability of broad wiretapping statutes to such First Amendment-protected activities. This decision acts as a safeguard, ensuring that individuals can exercise their right to document public officials without fear of unlawful arrest, reinforcing the idea that a free nation distinguishes itself by protecting critical scrutiny of law enforcement.

Think of it like this: just as a public street sign displays information for all to see, a police officer performing duties in public is “broadcasting” their actions. When a citizen openly records these actions, they’re simply making a verifiable copy of that public information, not “eavesdropping” on a private conversation behind closed doors. The court recognized that this public recording is a vital part of holding public officials accountable, much like taking notes during a public meeting.