The immunity issue

One of the most significant impediments to a successful civil rights claim is the government’s invocation of qualified immunity. Under this doctrine, government officials are shielded from civil liability if their conduct did not violate clearly established rights of which a reasonable person would have known. Even if officials violated a well-established right, they may still be entitled to immunity if they can show that their actions were objectively reasonable in light of the law and the information they had at the time of the action. The Supreme Court has said that the doctrine provides ample room for mistaken judgments by protecting “all but the plainly incompetent or those who knowingly violate the law.”

The issue has risen recently in causes of actions stemming from arrests for recording the police in the performance of their public duties. Not surprisingly, the split in legal authority about whether a constitutional right to videotape the police in public exists is reflected in courts’ qualified immunity decisions.

When Simon Glik recorded police officers arresting a suspect on the Boston Common, they arrested him for, among other charges, violation of the Massachusetts wiretap statute, which criminalizes secretly recording an in-person or telephone conversation without the consent of all parties to the conversation. A Boston Municipal Court judge dismissed the charge after the officers admitted that Glik publicly and openly recorded them, in contravention of the law’s requirement that an unlawful recording be secret.

Glik sued in federal court, alleging that the officers violated his First and Fourth Amendment rights by arresting him for openly recording police officers carrying out their duties in public and confiscating his recording device, his cell phone.

The officers moved to dismiss, asserting qualified immunity from liability because Glik did not have a clearly established First Amendment right to document police conduct. A U.S. District Court in Boston last June denied the officers’ motion to dismiss.

The court in Glik v. Cunniffe stated that “in the First Circuit, this First Amendment right publicly to record the activities of police officers on public business is clearly established.”

The officers appealed the denial of the motion to the U.S. Court of Appeals in Boston (1st Cir.), which last August upheld the denial in an opinion that vigorously affirmed that the newsgathering protections of the First Amendment extend to “the filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities.”

This right is a “basic, vital, and well-established liberty safeguarded by the First Amendment,” the court said. “It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws ‘abridging the freedom of speech, or of the press,’ and encompasses a range of conduct related to the gathering and dissemination of information. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”

Because the officers allegedly violated a clearly established right, they are not entitled to immunity from liability, and Glik’s lawsuit against them may proceed. Glik has said that he plans to pursue the claim.

But another man arrested for recording the police as they carried out their official duties does not have that opportunity.

Like Glik, Brian Kelly, the passenger in a truck pulled over by law enforcement in Carlisle, Pa., was arrested for violation of a state wiretapping law, in his case Pennsylvania’s, which requires the consent of all parties to record in situations where there is a reasonable expectation of privacy. Before the officer arrested Kelly, however, he confirmed his decision to do so with the assistant district attorney, who told the officer it was appropriate for him to arrest Kelly for violation of the statute.

Charges against Kelly were dropped, and he sued the officer, claiming that seizure of his camera and his arrest violated his Fourth and First Amendment rights.

A U.S. District Court in Harrisburg, Pa., granted the defense motion for summary judgment, holding that the officer was immune from liability because any reasonable officer in his situation would have relied on advice given by the assistant district attorney.

Kelly appealed to the U.S. Court of Appeals in Philadelphia (3rd Cir.), which held last October in Kelly v. Borough of Carlisle that the officer was entitled to qualified immunity on Kelly’s First Amendment claim because, due to “insufficient case law,” there was no established right to videotape a police officer during a traffic stop. The finding, however, was limited to the particular, narrow context of traffic stops, which are often “inherently dangerous,” the court said.

Generally, qualified immunity will not be a significant issue in civil rights suits brought by journalists arrested for simply doing their job while not interfering with police duties — claims like those of the “Democracy Now!” journalists, according to Agathocleous, their lawyer. That’s because there is a strong body of law nationwide holding that the First Amendment protects newsgathering activities, particularly in public places. Such case law makes a claim that the right is not clearly established implausible and an arrest for the exercise of this right unreasonable.

“In our case, it was so clear,” he said. “There was powerful video footage of (Goodman) backing up from the police and saying, ‘Where should I go? Where should I go?’ and then her down on the ground” after an encounter with the police.

The issue is a closer call, however, when journalists do not comply with police instructions intended to maintain public safety and order, Agathocleous said. This scenario is often seen when reporters, asserting their First Amendment newsgathering rights, insist on crossing boundaries established by law enforcement to serve these public interests or otherwise refuse to observe regulations that apply to all members of the public, he added.

This was the situation in another Minnesota case in which two public access television show hosts arrested at a reception honoring three departing city council members. Their confrontation with police ensued after the pair was asked to leave the event because they refused to pay the $15 entrance fee. Police officers escorted the men into a hallway, where a verbal and physical confrontation occurred. The parties disputed the details of the interaction, with one of the television hosts claiming that he peacefully cooperated with the police until they injured him and the police alleging that the man began to act unruly when asked to leave. The officers said force was necessary to subdue this man, who was arrested and charged with disorderly conduct, obstructing legal process and obstructing legal process with force.

Throughout this confrontation, the television host who was arrested operated a video recorder, which he passed to his co-host when he was arrested. The co-host refused to voluntarily give the videotape inside the recorder to the officers when they asked him to do so. As a result, the police restrained the man and then confiscated the tape without a warrant.

The arrested man later sued, claiming, among other violations, that the officers infringed his Fourth Amendment right by seizing his tape without a warrant. The police argued that they were immune from liability, and a U.S. District Court in Minneapolis agreed. The officers’ confiscation of the tape was proper, the judge held in Berglund v. City of Maplewood, Minn., because they reasonably believed that the film contained evidence of a crime, the man’s alleged disorderly conduct, that might be destroyed if they did not seize the tape — circumstances that allow the police to seize material without a warrant. Moreover, the officers acted reasonably when viewing and copying the tape, the original of which they held as evidence, and provided a copy to the host within a reasonable amount of time, the court said. The police also acted reasonably, according to the judge, in denying the hosts access to the event because they did not pay the entrance fee and used an acceptable amount of force to arrest the one host and remove the tape from the other.

Ashley Kissinger, the media lawyer who represented the Maryland publisher who successfully sued the local sheriff deputies for trying to buy and throw away all copies of a paper, said a journalist’s full compliance with rules and orders restricting newsgathering activities is often a critical element of a successful civil rights claim.

“The best-case (factual) scenario is that of a journalist who can show that he really went above and beyond in following instructions,” Kissinger said. “If you can show that you objected (to the restriction) without violating rules or with minimum interference of the police duties and follow their rules as closely as you can, but your rights were still violated, the fact that you did not break the law is going to help you a lot.”

Accordingly, journalists are well-served by adhering to the law, even if doing so means their coverage of a particular event is severely restricted, and challenging the restriction after the fact. This may mean, for example, leaving a cordoned-off area or accepting a citation and then appealing the actions later.

Along these lines, the language journalists and others use when communicating objections to law enforcement officers at the scene and in the aftermath of the encounter may very well affect its outcome, Kissinger said. Beyond perhaps instigating the official discipline in the first place, “the fact that a journalist had been disrespectful might get in the way of a (subsequent) negotiation” between the parties, she said.