In a ruling that's shocking following the months of police abuse we've seen directed at Occupy protestors, a federal appeals court ruled that police officers still do, in fact, forfeit their immunity to prosecution in the line of duty when they unambiguously trample a citizen's rights. Specifically: Everyone still has the right to record police officers in public, and the police still need a legitimate reason before they can arrest someone.

The full ruling

The idea of the ruling is old, settled law with mountains of precedent. Now if only more courts would remember that.

Some choice quotes from the ruling:

The qualified immunity doctrine “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

“[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

...a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment

The presence of probable cause was not even arguable here. The allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance. For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was “secret” merely because the officer did not have actual knowledge of whether audio was being recorded. We thus agree with the district court that, at this stage in the litigation, the officers are not entitled to qualified immunity from Glik’s Fourth Amendment claim.

METOO

Chicago, IL

October 2011

DEC 08, 2011 10:50 AM

Awesome. ^^^

Things have been getting out hand on both sides for a while.

hackers

mydogfarted

Oakland, NJ

June 2003

DEC 08, 2011 11:24 AM

So how does this affect all the various state and locales that have passed laws against filming the police? Obviously, it makes them unconstitutional, but I'm guessing most of these areas are going to keep them on the books as long as no one complains.

baudot

Oakland, CA

February 2004

DEC 08, 2011 01:03 PM

There are limited situations under which the default right to film government officials in public can still be restricted, though I'm not qualified to enumerate them. I presume that any statute that falls within those restrictions remains constitutional, and the rest should be overturned if challenged.

r00kers

Nederland, CO

February 2003

DEC 09, 2011 10:48 AM

The court in question, is unfortunately, not the last word on this issue. The supremes will probably rule on this sometime within the next few years and given the court's current composition, it might not go the same way.

baudot

Oakland, CA

February 2004

DEC 10, 2011 02:47 AM

If the defense chooses to appeal again, it would be interesting to see if the Supreme Court decides to hear the case.

Subrosa

San Francisco, CA

July 2004

DEC 10, 2011 03:49 PM

mydogfarted said:
So how does this affect all the various state and locales that have passed laws against filming the police? Obviously, it makes them unconstitutional, but I'm guessing most of these areas are going to keep them on the books as long as no one complains.

This is a federal circuit court ruling affecting only those states within the First Circuit (Maine, NH, Massachusetts, Rhode Island and Puerto Rico). Those locales within those jurisdictions who have such laws are prevented from enforcing them. Everywhere else is unaffected, though similar rulings have been made by other judges in other jurisdictions.

The losing party will almost certainly appeal. If they do here, a stay on the enforcement of the ruling may be issued. In other words, the law would still be in force. From here, this case can either be heard en banc at the First Circuit again, or can be appealed directly to SCOTUS. They may take it, though the odds of that are generally pretty small.