AG warns police not to arrest those who video arrests

DOVER, N.H. —The U.S. Constitution guarantees citizens the right to photograph and videotape police officers in public, New Hampshire Attorney General Michael Delaney recently advised law enforcement agencies across the state.
Further, officers who arrest someone for recording police activity can be held liable in court, according to a memorandum distributed by the Attorney General on March 22.
The memo advised police officers of an opinion issued last fall by the federal First Circuit Court of Appeals in Boston. It upholds the principle that citizens have a right to record police in public, so long as they don’t interfere with police work.
“I am aware that in the recent past a number of police departments have arrested individuals for audio and or video recording police officers in public engaged in official duties,” states the memo, which was distributed to county attorneys and all law enforcement agencies in the state. “I want to alert all law enforcement agencies to a recent opinion of the First Circuit Court of Appeals, which makes such arrests illegal.”
Activists in New Hampshire have raised concerns about a handful of recent arrests involving residents who were attempting to videotape or photograph police activity.
Police in the region have also encountered the issue. Three years ago, a 20-year-old man was arrested and charged with wiretapping after he tried to use his cell phone to record police officers while they broke up a house party in Portsmouth.
Wiretapping arrests have also become an area of concern for some in the New Hampshire Legislature, who are pushing for legislation that makes clear residents are entitled to record police work.
The First Circuit Court was drawn into the issue last year, taking up the case of a Boston attorney named Simon Glik who was arrested while filming police activity on Boston Common.
Glik was charged with multiple offenses, including a violation of the Massachusetts wiretap statute, but the charges were ultimately dismissed as lacking probable cause, according to Delaney’s memo.
Glik then sued the Boston Police Department, claiming that the arrest violated his rights under the First and Fourth Amendments. He won an initial ruling, which was upheld by the First Circuit Court after it was challenged by the Boston Police Department.
According to the First Circuit Court’s Aug. 25, 2011 opinion, a citizen’s right to film government officials in the discharge of their duties in a public space is a “basic, vital, and well-established liberty safeguarded by the First Amendment.”
The court’s jurisdiction encompasses New Hampshire, Massachusetts, Maine, Rhode Island and Puerto Rico.
Like other forms of speech, video recording and photography are subject to reasonable restrictions on the time, place and manner they occur. That means although residents have a right to record police, under some circumstances, it’s conceivable that a police officer could still lawfully arrest someone for doing just that.
The First Circuit Court judges chose not to specify the types of restrictions that would be permissible in their ruling, but did implicitly acknowledge that a person does not have a right to record in a manner that would impair or interfere with an officer’s ability to perform his or her duties, according to the Attorney General.
“While the Glik decision leaves much unanswered in terms of when and how the right to record may be limited, it makes clear that a person has a First Amendment right to both video and audio record police officers engaged in official duties in public places such as a park, in a public meeting, or on a public street or sidewalk, provided it does not interfere with the officer’s performance of those duties,” the memo states. “If a person engaging in such recording activity is arrested, the arresting officer could be subject to liability for his or her actions.”
Deputy Attorney General Ann Rice said her office doesn’t provide legal advice to local law enforcement agencies; they recommend for police departments to speak with a county attorney about the First Circuit Court ruling and its implications.
“I would suggest that the police be very careful about exercising their discretion in those situations in terms of affecting an arrest,” said Attorney Richard Samdperil, of Samdperil and Welsh, a firm with offices in Exeter and Portsmouth.
Samdperil said the ruling highlights the fact that with advances in technology and a blossoming of new media, it’s likely that police will encounter a host of cases that involve the issues at hand.
“I think that the First Circuit is recognizing what is obvious, which is that as this type of technology is more available and more common, that people are going to use that technology to make government and the police —their actions — more transparent,” he said, “and I think that’s really to everybody’s benefit, including the police, because when they do things right, people are going to know.”
Rochester Sen. Fenton Groen, a member of the Senate Judiciary Committee, said he expects legislators to reach compromise on a bill within the next month that would affirm the right of citizens to film not only police officers, but all public officials.
The Senate version of the bill also declares that recording equipment, such as a camera, is private property, and is protected from search and seizure.
Groen said the Glik ruling confirmed the validity of the legislative push, which has been in the works for at least two years.
“I think it’s just appropriate that public officials understand that they operate under the scrutiny of the public that they serve,” he explained. “We use the term ‘public servants’ and that’s what we are.”

© 2012 the Foster’s Daily Democrat (Dover, N.H.)
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