Does the First Amendment Protect the Right to Videotape the Police?


By: Mark Begnaud 
Yes, according to the First Circuit Court of Appeals.
On May 23, 2014, the First Circuit reaffirmed the right to videorecord officers performing their duties in public, and held that this right is so “clearly established” that New Hampshire officers could not claim qualified immunity after arresting a woman for filming a traffic stop.
In the case, Gericke v. Begin, Carla Gericke was arrested after she videotaped officers conducting a traffic stop of her friend’s car.  Gericke had been driving another car, and she videotaped the traffic stop from a nearby parking lot.  Officers arrested Gericke when she refused to provide either the camera or her license and registration, and they charged her with three offenses, including “unlawful interception of oral communications” (illegal wiretapping).  The prosecutor later dropped all charges.
Gericke brought suit, alleging that the officers illegally retaliated against her for exercising her First Amendment right to videotape the traffic stop when they arrested her for illegal wiretapping.  The officers argued that (1) there is no First Amendment right to videotape a traffic stop, and (2) even if there is such a right, that right is not “clearly established,” and the officers were immune from suit under the doctrine of official immunity, which protects a law enforcement officer from a Section 1983 lawsuits unless the officer violates a right that is “clearly established.”
Relying on their 2011 ruling in Gilk v. Cunniffe, the First Circuit reaffirmed that the First Amendment protects the right to film officers performing their duties in public.  The Court then made clear that such right is so “clearly established” that the officers were not protected by official immunity:  “any reasonable officer would have understood that charging Gericke with illegal wiretapping for attempted filming that had not been limited by any order or law violated her First Amendment right to film.”
Importantly, the Court tempered its ruling by noting that some traffic stops may be different, and may require safety measures that incidentally prevent a person from videotaping.  For example, an officer could command that bystanders disperse, and this command could be appropriate for safety reasons even when directed at a person who is filming.  This question – when may an officer command a person to stop filming for safety reasons? – remains open for further litigation.
With the rapid proliferation of smartphones, more and more citizens carry with them what are, in essence, small videocameras, easily able to record videos and upload them to the internet.  As the First Circuit noted in its 2011 ruling, “changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw.”  As Gericke demonstrates, the courts appear to recognize this shifting technological landscape and to protect the citizen-as-journalist.  In fact, both the Seventh Circuit and the Civil Rights Division of the U.S. Justice Department have also recognized the First Amendment right to videotape police officers performing official duties.  It is crucial for private citizens and law enforcement officials alike to understand this newly-recognized right in a technologically advancing world.
The case is Gericke v. Begin, 12-2326, 2014 WL 2142519 (1st Cir. May 23, 2014).