Recent settlement in suit over arrest for recording police follows growing trend

Danielle Keeton-Olsen | Newsgathering | News | June 16, 2014

The town of Weare, New Hampshire, settled a lawsuit last week for $57,500 with a woman arrested for videotaping a police officer, adding to the growing list of settlements stemming from police officers’ restriction of video and audio recordings in public places.

In Gericke v. Begin, the U.S. Court of Appeals in Boston (1st Cir.) upheld a lower court opinion that Carla Gericke was within her First Amendment rights to record a police officer at a traffic stop.

Following that opinion, instead of choosing to continue with the trial, Weare settled the case with Gericke.

Mickey Osterreicher, general counsel for the National Press Photographers Association, said most of the cases in which citizens sue police for unlawfully arresting them or confiscating their cameras reach a settlement, although this settlement was low in comparison to others he has noticed.

The two involved parties often settle by covering attorney’s fees because that’s common for civil rights cases, said Bob Corn-Revere, a partner at Davis Wright Tremaine LLP, who has worked with NPPA and the Reporters Committee on cases and amicus briefs. However, he said he has also seen several cases cover damages beyond just attorney’s fees, based on the situation.

“They don’t all settle, but most lawsuits settle, so it’s hard to say that there’s any hard-and-fast rule for these cases,” Corn-Revere said.

Corn-Revere said he has been continually working on recording police cases for the past three years.

Both Osterreicher and Jay Stanley, a senior policy analyst for the American Civil Liberties Union’s project on Speech, Privacy and Technology, said their organizations either monitored or got involved with several cases that ended in settlements.

“We do a lot of settlements because the law is very clear here,” Stanley said. “It’s a situation where the law and the constitution are very clear, and yet many police officers seem not to be getting the message.”

Other recent police recording case settlements include Glik v. Cunniffe, another 1st Circuit case, where the city of Boston paid attorney Simon Glik $170,000 after he was arrested for recording police officers make an arrest at a public city park.

Like the decision in Gericke, the First Circuit in Glik upheld a lower court decision stating that the citizen was within his rights to record police, but left open the possibility of introducing restrictions to that right based on the situation.

Gericke’s case added the concept of a traffic stop to the Glik ruling, which established that a traffic stop is still a public place, so Gericke’s First Amendment rights still applied.

Osterreicher said the Gericke ruling gives those within the circuit the clearest idea of when citizens have the right to record police.

Other courts have reached similar conclusions. In a U.S. district court case in Maryland, Sharp v. Baltimore City Police Department, police arrested a man taking video, deleted his recordings, and subpoenaed his medical and cell phone records.

The court affirmed the plaintiff had a right to make the recording. The court quashed the subpoena and awarded him $25,000 in damages in addition to covering his approximately $220,000 in legal fees.

Most recently, in ACLU v. Alvarez, the Seventh Circuit addressed the constitutionality of Illinois’ eavesdropping offense law after the ACLU of Illinois filed a pre-enforcement action against Illinois’ attorney general so its videographers would not be arrested for audio recording police officers in public places.

Following that decision, the district court awarded $645,000 to the ACLU, covering attorney fees.

However, the impact of some of these cases can extend beyond coverage of attorney fees, Osterreicher said.

Following the settlement of Sharp v. Baltimore, Baltimore City Police Department enacted a new set of guidelines for its police department, informing officers that they must respect those recording police activity as long as the recorder “has a legal right to be present and does not interfere with a [police] Member’s safety.”