The American Civil Liberties Union of Massachusetts filed a civil rights lawsuit today against the city of Boston and three Boston police officers on behalf of a local man who was arrested for making a video recording of police officers as they struggled with a drug suspect in 2007.
Simon Glick, 33, now a criminal defense attorney, has said he was walking on Tremont Street, near Boston Common, on Oct. 1, 2007, when he saw three Boston police officers making an arrest. He heard another man yelling something like "you are hurting him, stop." So Glick, thinking police may be using excessive force, pulled out his cell phone and began to record what was going on.
When the police noticed Glick was recording video and audio instead of just snapping pictures, they arrested him for violating the state's wiretapping law, which outlaws secret audio recordings.
Glick's criminal case was later dismissed.
Now, he's suing the city and the officers who arrested him, including Sergeant John Cunniffe and two patrolmen, saying his First Amendment rights to free speech and Fourth Amendment right to freedom from arrest without probable cause were violated.
"Just because it's upsetting to the police officers, and they're unhappy about being recorded, doesn't allow them to make an arrest," said Howard Friedman, an attorney working with the ACLU to represent Glick. "If a person is standing, as Mr. Glick was, many feet away and simply recording, that's not a crime, even if the officers don't like being recorded. If somebody were video recording police rescuing someone, they wouldn't arrest them."
A spokesman for the Boston Police Department declined to comment on the pending case, as did a spokesman for Mayor Thomas M. Menino's office.
“There is no problem with photographing or video taping, but when it comes to conversations, police officers need a warrant or permission – and as police officers, we are entitled to the same rights as every citizen of the commonwealth to be free from surreptitious recording of our voices. It’s a protected activity,” Thomas J. Nee, the president of the Boston Police Patrolmen’s Association, said in a phone interview.
A Boston Globe report last month from the New England Center For Investigative Reporting first revealed that Glick and another man were arrested for making video recordings of police in public.
A spokeswoman for the San Francisco-based Electronic Frontier Foundation, a civil rights group that specializes in Web and technology civil liberties said she hadn't heard of this happening elsewhere.
"Of course, they would never charge a guy from Channel 4 news, but they arrested this guy," siad Attorney Jennifer Granick, the Civil Liberties Director of the Electronic Frontier Foundation. "Certainly under federeal law, you are allowed to make recordings of things that happen in public places. The intent of the [two-party] law is meant to protect private communication,but not to insulate public occurances from being recorded. Can you imagine if a news reporter was not allowed to record a fire?"
Under Massachusetts General Laws Chapter 272, Section 99, Massachusetts is a so-called "two-party" consent state. This means that people having their voice recorded on a telephone or other audio device must agree to be recorded. The lawsuit filed today would challenge that public places are not covered by this law.
Glick seeks unspecified finanical damages. Friedman also said that they are looking to set a precedent so police would not arrest people for recording in public in the future.
John M. Guilfoil can be reached at email@example.com
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