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Traffic Stops, Video Taping and the First Amendment

By Gabriella Khorasanee, JD on June 02, 2014 | Last updated on March 21, 2019

In 2011, the First Circuit held that "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," in Glik v. Cunniffe. However, the court noted that the right was not unqualified.

Last month, the First Circuit had a similar case before it, but instead of a citizen filming an arrest in a public square, a citizen filmed a traffic stop. The question before the First Circuit was whether the First Amendment right applies to traffic stops.

Gericke's Video Taping

Carla Gericke and Tyler Hanslin were caravanning on a freeway when an officer pulled them over. Though Gericke pulled over, the officer informed her that he was actually only pulling over Hanslin, and told her to move her car, which she did, to an adjacent parking lot. Hanslin informed the officer that he had a firearm, and he was instructed to exit his vehicle. Gericke announced to the officer that she was going to video tape him, and he did not object.

Her camera was not recording so she later put it away and waited in her car. Later, another officer approached her and asked where the camera was, which she refused to tell him. She was arrested for violating several laws, notably, unlawful interception of oral communications under New Hampshire law. The prosecutor declined to prosecute, and Gericke then sued the officers for violating her First Amendment rights under 42 U.S.C. § 1983.

Lower Court

Before trial, the officers made a motion for summary judgment claiming qualified immunity. The district court noted that for the New Hampshire wiretapping law to apply, the person recorded must have a reasonable expectation that the conversation would not be recorded. Because under Glik, the officers had no "reasonable expectation" that their public actions and communications would not be intercepted, the court denied the officers' motion. The officers filed an interlocutory appeal.

First Amendment Rights

The First Circuit noted that the Glik holding could be qualified, but found that those circumstances were not present here. The officers did not order her to stop filming, and she complied with all other police orders. Analyzing the facts in a light most favorable to Gericke, the court noted that "her right to film remained unfettered, and a jury could supportably find that the officers violated her First Amendment right by filing the wiretapping charge without probable cause in retaliation for her attempted filming."

With this decision, the First Circuit further explained the circumstances under which police officers may be filmed, and what narrow circumstances may abridge this right. Now, the factual dispute regarding whether Gericke's filming was disruptive will proceed in the district court.

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