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Go Ahead, Film It!

Just about everyone has a phone equipped with a camera and the ability to video and audio record. That happened fast. A mere 5 to 10 years ago it was more a novelty and although some people had that capability, not nearly everyone did. (Hand held camcorders were certainly around, but not in your pocket and ready to go at a moment’s notice.) With this drastic change came a major change in the law.

We are so used to seeing video clips on the internet of police officer’s chasing, arresting, harming or even killing suspects that few people question anymore the right of citizen’s to record those events. However, just a few short years ago that issue was still up for debate. A case that started in 2007 with a lawyer named Simon Glik and came to a conclusion in 2011 made it clear that filming the police was guaranteed by the first amendment. Prior to that in New Hampshire it was still a risky thing to do.

“As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers…arresting a young man. Glik heard another bystander say something to the effect of, " You are hurting him, stop." Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.

After placing the suspect in handcuffs, one of the officers turned to Glik and said, " I think you have taken enough pictures." Glik replied, " I am recording this. I saw you punch him." An officer then approached Glik and asked if Glik's cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for…unlawful audio recording in violation of Massachusetts's wiretap statute. …[T]he court noted that the fact that the " officers were unhappy they were being recorded during an arrest ... does not make a lawful exercise of a First Amendment right a crime."…[T]he court found no probable cause supporting the wiretap charge, because the law requires a secret recording and the officers admitted that Glik had used his cell phone openly and in plain view to obtain the video and audio recording.”

“Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts's wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.” Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)

Although Glik had his criminal charges quickly dropped or dismissed by the court, his experience was typical at the time for most citizens who filmed police officers. Many lawyers in New Hampshire, myself included, have represented people over the years who were arrested and charged simply because they audio or video recorded police officers. The financial cost of getting legal representation and the huge impact that an arrest record can have on someone’s future were no match for citizen’s who became increasingly capable of pulling a cell phone out of their pocket and recording. The inclination in our country towards exposure and public scrutiny seems to always triumph over secrecy. Although at times, the “outing” of individuals can be done for an ugly or nefarious purpose, in the long run it is the free and open society that we cherish and that makes us better.

It has always astonished me that any professional doing their job would have a problem being recorded while doing it. If we all behaved as though we were being recorded maybe we would be less likely to act in shameful, unprofessional and hurtful ways.

In fact, a police department in Rialto, California outfitted its police officers with body cameras and this is exactly what happened:

“Rialto…has seized attention because it offers scientific – and encouraging – findings: after cameras were introduced in February 2012, public complaints against officers plunged 88% compared with the previous 12 months. Officers' use of force fell by 60%.

"When you know you're being watched you behave a little better. That's just human nature," said Farrar. "As an officer you act a bit more professional, follow the rules a bit better."

There is no question that police officers often have to deal with violent, aggressive and unruly people. The police are faced regularly with challenging situations involving people at their worst, often unpredictable people who may be high on drugs or drunk as well as desperate and mentally unstable. However, the real test of our society has always been how we treat those at those bottom and police officers are not the only ones asked to confront these issues. If the Rialto police department has their complaints against officers drop and their use of force plummet by an astonishing 60% by simply installing cameras, it begs the question of why it takes a camera for police officers to choose tactics that cause less harm. It clearly was not at the expense of their safety.

The first amendment right to free speech has given our country one of its most unique qualities. It allows us to ferret out corruption and abuse of power in so many different realms, including police misconduct.

Simon Glik won $170,000 in his civil suit against the City of Boston. In response to his case the New Hampshire attorney general issued a widely publicized memorandum in 2012 advising NH police departments to allow citizens to film police as long as it is done peacefully and does not interfere with the performance of their police duties.

So, go ahead and film the police performing their official duties in public places so long as you do not interfere with them doing their job and cherish your right to do so.

Joanne M. Stella, Esq.

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