Glik v. Cuniffe

Yesterday the Cyberlaw Clinic students (which is run primarily for Harvard Law students at the Berkman Center) and the Citizen Media Law Project interns went to the First Circuit Court of Appeals in Boston to hear oral arguments on the case of Glik v. Cunniffe, a case on which the project filed an amicus brief, which the court rejected.

The Glik case is a §1983 action. Such an action is a lawsuit provided for by federal law for violations of constitutional rights. Here, the suit was filed by a man who was arrested in the Boston Commons area after using his cell phone camera to video tape an arrest. The officers charged him with violations of the Massachusetts wiretapping statute, which prohibits recording anyone's conversations in secrecy. The charges were later dropped for lack of probable cause and the man who was arrested sued for violations of his fourth (which prevents unreasonable search and seizure) and first amendment rights.

This appeal of the trial court's denial of a motion to dismiss the case for qualified immunity. Basically, the police officers wanted the case thrown out because as police officers acting as any reasonable police officer would while performing his or her duties in good faith, they are in fact entitled to immunity and the case would be thrown out. But, the trial court found that this actions weren't clearly reasonable. A reasonable officer might not think this arrest was constitutional. So the case was allowed to proceed.

The attorney representing the police made the point that the officers didn't know he was recording until after he had already started, and that the statute doesn't allow for recording without knowledge. After much debate back and forth, one judge made an excellent point -- what would the police have done if this were a member of the press? Say a journalist and a single camerama began filming and the police didn't hear them until they were already underway. Would they have thought this a violation of the wiretapping statute? I think most of us would hope that any journalist who spotted what they believed to be police abuse would stop and get it on camera, along with an explanation from the officers.

I think the judge brings up an excellent point. This wiretapping statute doesn't clearly make any distinction for the purpose behind the recording, or the person doing the recording. If this were a journalist recording a public event in a public place, I hardly think the Boston police would have arrested the reporter on camera. But this man, recording what he said at the time was a violent arrest (he told the cops, "I saw you punch him") was made a target.

Here is a link to the blog entry on the oral argument, written by my colleague.

Update:

Check this link to my supervisor, Jeff Hermes, being interviewed on this case.