How a Boston Case Won You the Right to Record Police

In this screenshot from video filmed by a bystander, North Charleston police officer Michael Slager appears to shoot Walter Scott in the back. Slager claimed he shot Scott in self-defense but was later charged with murder.
In this screenshot from video filmed by a bystander, North Charleston police officer Michael Slager appears to shoot Walter Scott in the back. Slager claimed he shot Scott in self-defense but was later charged with murder. –AP Photo/Courtesy of L. Chris Stewart

From police shootings to traffic tickets, civilian recordings of police encounters can help hold officers accountable (except when they don’t). While the right to film the police is by no means absolute, you can thank Boston lawyer Simon Glik for making it easier to do it legally.

As On the Mediarecently reported, in 2007, Glik happened upon three Boston police officers arresting a man and using what he thought was excessive force. Glik decided to film the arrest on his cell phone to document it, only to be arrested himself and charged with violating the state’s wiretapping law, because he recorded audio without the police officers’ knowledge.

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Massachusetts is a “two party consent’’ state, which means it’s illegal to record audio without the knowledge and permission of the person you are recording — unless, as we’ll see, that person is a government official in a public space.

The charges against Glik were eventually throw out by a judge. Glik sued the officers and the city of Boston for violating his First Amendment rights and wrongly arresting him. The U.S. Court of Appeals for the First Circuit agreed, ruling in 2011 that “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital and well-established liberty safeguarded by the First Amendment.’’

In 2012, the city of Boston paid $170,000 to settle with Glik. BPD also ruled that two of the officers should be disciplined for arresting Glik in 2012, four years after it initially said they had done nothing wrong.

As the ACLU noted at the time of the settlement, the ruling applies only to the first circuit — the states of Massachusetts, New Hampshire, Maine, Rhode Island, and the territory of Puerto Rico — but it has been used as precedent in similar cases. That said, there is no one all-encompassing federal law that says when you can or can’t record the police in this country. The rules vary state-by-state, and police can still arrest you if they decide you are intefering with their duties as you record. And then there are the law enforcement officials who deal with unwanted recordings by destroying them, as one U.S. marshal allegedly did in an incident that is currently being reviewed by his agency.

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Still, Jeff Hermes, deputy director of the Media Law Resource Center, told On the Media that Glik’s case was a “turning point’’ and “powerful statement’’ in acknowledging the rights of the public to record the police. Just make sure you know your rights — and which state you’re in — when you do it. And even then, Hermes said, it’s best to follow the police’s commands first, and consult a lawyer about it later. As Glik discovered, even a false arrest can take years to sort out.

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