Constitutional Law, Criminal law, Free Speech, Lawyering

Posner Ridicules Right of Citizens To Film Police in Seventh Circuit Oral Argument

Judge Richard A. Posner is a legal icon who has had more impact on the development of the law. As the father of the Law and Economics movement, Posner’s writings are featured heavily in my classes as well as other classes around the country. While I disagree with him, I have tremendous respect for his scholarship and jurisprudence. However, a recent oral argument revealed a less flattering side of the former University of Chicago professor. Faced with an attorney from  the American Civil Liberties Union in a case involving the right of citizens to film police in public, Posner cut him off after 14 words and spoke derisively of the right of citizens and groups to engage in such protected conduct.

At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without his consent even when filming public acts like arrests in public. Poser was one of three judges and interrupted the ACLU after just 14 words, stating “Yeah, I know,. But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.” Really? That happened to go to first amendment value of the proscribed conduct.

Posner continued: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers . . . I’m always suspicious when the civil liberties people start telling the police how to do their business.” Unbelievable. All these videos do is make a record of police conduct. The conduct is either abusive or nonabusive. Not filming an abusive arrest does little beyond protecting unlawful conduct. Otherwise the film vindicates the conduct of officers.

Illinois legislators and prosecutors have taken on the lead in fighting the right of citizens to observe and record the conduct of police. Posner’s view is thankfully not shared by other judges. Last month, the United States Court of Appeals for the First Circuit handed down a the opinion below in the case of Simon Glik, a lawyer who was arrested for filming officers in what he viewed as an excessive use of force. Here is the description of the court:

As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.
After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.” An officer then approached Glik and asked if Glik’s cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts’s wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik’s cell phone and a computer flash drive and held them as evidence.

He was then charged with violation of the wiretap statute, Mass. Gen. Laws ch. 272, § 99(C)(1), disturbing the peace, id. ch. 272, § 53(b), and aiding in the escape of a prisoner. The panel showed a far more balanced view than articulated by Posner in cutting off the ACLU’s lawyer in Illinois:

In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech, id. at 461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.

What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. Absent such film, these allegations are often dismissed as unsupported by the citizens and denied by the officers.

As someone who admires Posner’s contributions to the law, it is disappointing to read such biased and dismissive comments in a free speech case. For police wondering “who will rid us of these meddling citizens?,” they appear to have one jurist in Illinois not just ready but eager to step forward.

First Circuit opinion: Glik

69 thoughts on “Posner Ridicules Right of Citizens To Film Police in Seventh Circuit Oral Argument”

  1. Mike,
    I agree that enough questions were raised that any honest judciary should have halted the execution. I am not in favor of anyone getting executed, but there are some that push me to my limit. Like the dragging death creep that was executed recently.

  3. “I do not believe an innocent man was executed last night”

    Mespo,

    Who knows? My attitude is this though, I’m not against the death penalty per se, but my standards for its’ application are much higher than beyond a reasonable doubt. Mistakes have happened and can happen. One mistake is one mistake too many. I read enough to feel that he should have been reduced to life without parole, which is no pony ride either.

  4. Mike S.

    “I think we saw that last night in Georgia.”

    *********************************
    Take a look at Judge Wm Moore’s opinion concerning the “actual innocence” hearing for Troy Davis who was executed last night. While I do not support the eye-for-an-eye jurisprudence that the death penalty entails and deplore Scalia words in dissent (I think he does it for “shock value” as much as anything), I do not believe an innocent man was executed last night:

    http://multimedia.savannahnow.com/media/pdfs/DavisRuling082410.pdf

  6. “He’ s in bad company with the likes of Justice Scalia who wrote these incredible words in 2009 that “… this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Trials as processes for determining truth and justice be damned, we need finality!”

    I think we saw that last night in Georgia.

  7. mespo,

    “The Romans used to say you could judge a people by the quality of those they place in high office. I’m not sure we’d fare so well in their eyes.”

    Towards the end….W hat did they say….Oh yeah….You said the “Romans “USED” to say.”…..

  8. Posner apparently thinks that determinations of actual innocence is a secondary consideration when it comes to law enforcement. Who needs more information? He’ s in bad company with the likes of Justice Scalia who wrote these incredible words in 2009 that “… this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Trials as processes for determining truth and justice be damned, we need finality!

    The Romans used to say you could judge a people by the quality of those they place in high office. I’m not sure we’d fare so well in their eyes.

  9. All of the details … came from the body microphones on the officers and from the surveillance video at the bus depot that night. “Had that video not been rolling and had those microphones not been rolling on those officers”, the district attorney said today, “we would not be here and charges would not have been filed.” -KTLA video (previous link)

    Citizens provide yet another line of defense…

  11. I suppose I ought to be grateful to Judge Posner for helping me learn more about How Judges Think.

  12. seamus
    1, September 20, 2011 at 12:36 pm
    ….
    He said gang members who want to snoop on each other could start secretly recording conversations and say they’re protected because they were taping suspected police informants. ” Chicago Sun-Times (9/13/11)
    ————–

    I really don’t think that was a mistake. He must know that the issue is recording officers in public who are performing their duties (typically in uniform). This has nothing to do with allowing the recording of “suspected informants” in private situations.

    I think this brings us to the 3 possible explanations for goofy statements: 1) too stupid to understand, 2) grossly ignorant of what is being discussed or 3) intentionally lying.

    Explanation #1 is clearly out in Posner’s case, and #2 seems very unlikely.

    I can only imagine that his statement is an intentional, disingenuous twisting of the issue. Maybe he knows that his desire is to support an untenable position and he’s desperately clutching for excuses?

    It’s sad. It also would seem to disqualify him from participating if/when one of these laws is challenged in the Seventh Circuit.

    That soccer riot video is totally appropriate – by actually improving professionalism on the part of the police and respect for police on the part of the public, it will make life much safer for the police themselves, and make them more effective in protecting our communities.

  14. It’s easy to imagine Posner in 1770 in the robes of the British Judiciary convicting the colonist who made a video recording of the Boston Massacre.

  15. Is it not truly amazing that there are times we can agree with everyone about something….

  17. “Cops and the like are forever sneering at citizens who don’t like the invasive surveillance and spying going on around us. And they often insult us with the insipid comment “If you are not doing anything wrong you don’t have anything to worry about”.

    Tootie,

    Something we agree about.

  18. Why would you “admire Posner’s contributions to the law”? Overlaying it with fallacious radical right wing economic dogma has done it, and all under it, a grave disservice.

  19. Cops and the like are forever sneering at citizens who don’t like the invasive surveillance and spying going on around us. And they often insult us with the insipid comment “If you are not doing anything wrong you don’t have anything to worry about”.

    See what babies and thugs they are when the tables are turned? They don’t even go by their own standard.

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