No Qualified Immunity: Citizens Have Right to Record Police

By Robyn Hagan Cain on August 30, 2011 | Last updated on March 21, 2019

The First Circuit Court of Appeals just opened a new chapter in the story about a Massachusetts attorney who was arrested for illegal wiretapping after he recorded a video of Boston police officers arresting a suspect.

In case you haven’t read about this case, attorney Simon Glik used his cell phone to record Boston Police officers in 2007 while they were arresting a suspect, because he thought they were using excessive force against the suspect. The police told him to stop recording. When Glik confirmed to one of the officers that the phone recorded audio, police arrested Glik for illegal wiretapping.

A Boston court eventually dropped the ridiculous charges against Glik, which included disturbing the peace and aiding in the escape of a prisoner. Glik later sued the arresting officers and the City of Boston for violating his First and Fourth Amendment rights. The officers responded with government employees' favorite defense: qualified immunity.

The First Circuit Court of Appeals ruled last week that people have a right to record the police openly, and that the officers were not protected by qualified immunity.

In its opinion, the court noted, that, while not unqualified, "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 court also criticized the officers' decision to arrest Glik for wiretapping, finding that "the allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance ... 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're curious to see what kind of damages Glik wins as his suit against the officers and the City of Boston proceeds, particularly because this is not the only time Boston police have arrested people for cell phone recordings.

Related Resources:

First Circuit Affirms Right to Record the Police (CATO Institute)
Glik v. Cunniffe (FindLaw's CaseLaw)
Uneasy Rider: Cop Denied Qualified Immunity in Motorcycle Death (FindLaw's Sixth Circuit blog)
Officer has Qualified Immunity from Search Warrant Suit (FindLaw's Ninth Circuit blog)
First Circuit Court of Appeals (US Courts)