A Small Right With A Huge Loophole

Unlike my buddy Josh Blackman, it doesn’t strike me as a huge victory that the 1st Circuit reaffirmed the right to record police in the public performance of their duties. So while we can find something positive to say about the decision in Gericke v. Begin, it’s more in the Generalissimo Francisco Franco is still dead mode than anything new. Yeah, a right we possess remains a right we possess. Woo hoo! Well, it could have gone the other way too, so that’s something to celebrate.

But the opinion, after reaffirming what was already the law, put a lot more effort into the caveat:

This is not to say, however, that an individual’s exercise of the right to film a traffic stop cannot be limited.

Boom. There it is, the grand right in a few black letters, and then the lengthy explanation detailing how to circumvent and eliminate it. Thanks for the roadmap, bro.

Indeed, Glik [v. Cunniffe] remarked that “a traffic stop is worlds apart from an arrest on the Boston Common in the circumstances alleged.” That observation reflected the Supreme Court’s acknowledgment in Fourth Amendment cases that traffic stops may be “‘especially fraught with danger to police officers’” and thus justify more invasive police action than would be permitted in other settings. Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them.

The word “reasonable” is perhaps the most dreaded word in law. First, it is meaningless, left to the sensibilities of judges to decide and a hole big enough to drive a Mack truck through.  Second, whenever we see it, we know it’s the opening through which bad things come.  Bad, bad things.

The facts of the case aren’t complicated, though they were, as Josh called them, messy:

Carla Gericke attempted to film Sergeant Joseph Kelley as he was conducting a late-night traffic stop.

Kelley asked if anyone had a gun, and the passenger in Gericke’s car, Hanslin, said he did.

Once Gericke parked in the lot, she got out of her car and approached a fence that, along with a grassy area, separated the lot from the road. Gericke was at least thirty feet from Kelley. Gericke announced to Kelley that she was going to audiovideo record him. She pointed a video camera at Kelley and attempted to film him as he was interacting with Hanslin. Unbeknownst to Kelley, Gericke’s camera, despite her attempts, would not record Kelley ordered Gericke to return to her car, and she immediately complied. From her car, she continued to point her camera at Kelley even though she knew the camera was not recording. Significantly, under Gericke’s account, Kelley never asked her to stop recording, and, once she pulled into the parking lot, he did not order her to leave the area.

By the time Officer Brandon Montplaisir arrived on the scene, Gericke had stopped pretending to record and put her camera into the center console of her car.

Montplaisir approached Gericke while she was in her car and demanded to know where her camera was, but she refused to tell him. He asked for her license and registration. When Gericke did not comply, Montplaisir arrested her for disobeying a police order, obstructing a government official and, the charge to which the opinion is addressed, unlawful interception of an oral communication.

So the court upheld the rule of Glik, that one can record a demonstration on the Boston Commons. Except a late night traffic stop (which words are invariably followed by some variation on the requisite “especially fraught with danger to police officers”) is different.

The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure — for example, a command that bystanders disperse — that would incidentally impact an individual’s exercise of the First Amendment right to film. Such an order, even when directed at a person who is filming, may be appropriate for legitimate safety reasons. However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.

The admonition here is clear: you can’t arrest and charge a person for recording an interaction with police per se, as they have a constitutional right to do so.  However, if the officer feels his safety is threatened, or that there is the potential for interference with his duties, well then, that’s entirely different.

Notably, Sgt. Kelley never directed Gericke to stop recording, a fatal flaw that the decision provides guidance to correct:

Such a restriction could take the form of a reasonable, contemporaneous order from a police officer, or a preexisting statute, ordinance, regulation, or other published restriction with a legitimate governmental purpose. Under Gericke’s version of the facts, no such restriction was imposed or in place.

Josh, in optimistic fashion which may reflect an absence of experience with traffic stops, recognizes the hole, and puts it in the best doctrinal light:

So expect the police departments to craft policies that limit recording based on time, place, and manner, whatever that means. Though the scope of that policy should be fairly narrow. In this case the time (night), place (traffic stop), and manner (recording 30 feet away from traffic stop with gun involved) are fairly officer-favorable. This was not valid. So any time, place, manner policy would be limited.But that won’t stop police officers from abusing that policy.

Or, to put it in a more practical light, you have the constitutional First Amendment right to record police until they tell you to stop, because reasons, at which point you don’t.  With wins like this, who needs losses.



11 thoughts on “A Small Right With A Huge Loophole

  1. Turk

    I’m curious as to how you would have ruled. I’m confident that if the person was across the street filming that Judge SHG would say there is no problem with the conduct.

    But that if the filmer walked right up to the cop’s face and stuck the camera 12 inches from his/her nose while the cop was trying to do his/her job, there would be an issue with interfering with the cop doing that job.

    And between those two are countless shades of gray sitting on a slippery slope of reasonableness.

    What are the magic words that you would use to describe the line that can’t be crossed?

    1. The Globalizer

      The issue seems addressed by other existing rule sets around 1A limitations – it is not and has never been a shield for unlawful behavior. I agree that the decision muddies the water unnecessarily – introducing the concept of disruptive recording, whatever that might mean, seems to add nothing but a new conceptual hook for malfeasant police to avail themselves of. I don’t know why the court felt it important to reassert the boundaries here and in the way it did.

      1. SHG Post author

        I think you’re right. I would add that, given the result in Gericke, the lengthier discussion of exceptions, none of which apply in the case, is what makes this opinion particularly disturbing. Why reaffirm the right, only to launch into lengthy but inapplicable exceptions? That appears to be the primary point of the opinion, to assure that the rule doesn’t exist without police having the benefit of the full panoply of vague exceptions.

        1. Charlesmorrison

          SJ, even more puzzling is that this was only an interlocutory appeal from the denial of summary judgment based upon a claim of qualified immunity. Not only do none of the exceptions, only hypothesized, apply to the case at bar, but the appellate court could have heard more specific arguments as to the extent of the plaintiff’s 1st Amend. privilege later, if need be.

          The court could have simply said precedent clearly supports one’s general and rather broad right to record, per Glik, and the trial judge didn’t error in failing to grant summary judgment, leaving the other arguments for a later day.

      2. Matthew I

        Isn’t the act of recoding in and of itself inherently “disruptive?” In this case Ms. Gericke wasn’t deliberately bluffing (a footnote on page 5 indicates her camera was malfunctioning), but what if she was?

        1. SHG Post author

          Some will say so, but the hard part is providing a rational basis for the claim. Why would recording be inherently disruptive?

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