-by Guest Contributor Zach McAuliffe
The First U.S. Circuit Court of Appeals has ruled the filming of police officers, during arrests or otherwise, is a constitutional right protected by the First Amendment.
The decision came after Carla Gericke, a New Hampshire native and president of the Free State Project, was arrested in 2010 after attempting to record on her cell phone a traffic stop involving her friend and the Weare Police Department. According to RT, Gericke’s cell phone malfunctioned though and failed to record the incident, but the officer still arrested her on charges of obstruction, disobeying a police officer, and what the courts are calling, “unlawful interception of oral communications.”
Citizen’s rights to record officers in public has been hotly debated over the past few years with many police officers and departments saying citizens do not have the right to film officers while carrying out their duties.
The Department of Justice in 2013, according to Politico, argued not only do citizens have the right film officers in public as protected by the First Amendment, but citizens are also protected by the Fourth and14th Amendment from having any such recordings seized by officers without a warrant.
Many states have held hearings on similar cases involving the recording of officers. In 2012, the state of Illinois ruled in favor of the ACLU of Illinois to “record police officers while they are publicly performing official duties.
In some states, particularly in Massachusetts, the law reads citizens can record officers, but only if the citizen tells the officer beforehand they are being recorded. If the citizen were to privately record the officer, this could be considered a crime.
In the case of Gericke, the court ruled, “It is clearly established in this circuit that police officers cannot, consistently with the Constitution, prosecute citizens for violating wiretapping laws when they peacefully record a police officer performing his or her official duties in a public area.”
The First Circuit Court covers the states of Massachusetts, New Hampshire, Rhode Island, and Maine, and this decision may nullify any laws in those states which make recording officers a crime or otherwise.