First Circuit Rules That Police Do Not Have Qualified Immunity After Arresting New Hampshire Woman For Videotaping Traffic Stop

150px-US-CourtOfAppeals-1stCircuit-Seal.svgvideo cameraWe have been following the continuing abuse of citizens who are detained or arrested for filming police in public. (For prior columns, click here and here). Despite consistent rulings upholding the right of citizens to film police in public, these abuses continue. One of the more recent cases comes from Concord New Hampshire where Carla Gericke was arrested for trying to videotape the police at a March 24, 2010, traffic stop of a friend. She sued that the charge of wiretapping violated her constitutional rights and, in a major rule, the United States Court of Appeals for the First Circuit held that she was entitled to a jury trial and was not barred by qualified immunity. The case is Gericke v. Begin, 2014 U.S. App. LEXIS 9623.

After her arrest, a criminal probable cause hearing was scheduled for May 25, 2010, but, on the day of that hearing, the town prosecutor declined to proceed on the pending charges, including the charge for unlawful interception of oral communications. We have seen in other cases of alleged abuse where citizens are hit with multiple charges only to have the charges dropped at a later date.

The court ruled that citizen clearly have the protected right to film police at traffic stops despite the continuing arrests and harassment that we have seen over the use of this right. This does not mean that police cannot place reasonable limits on filming in some circumstances, the court concluded. However, Judge Kermit V. Lipez wrote from the panel that “it was clearly established at the time of the stop that the First Amendment right to film police carrying out their duties in public, including a traffic stop, remains unfettered if no reasonable restriction is imposed or in place.”

The ruling is important because officials are entitled to qualified immunity if they make “reasonable but mistaken judgments.” The inquiry raises two questions: “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was clearly established at the time of the defendant’s alleged violation.” That test makes this ruling so significant for police who continue to arrest or threaten to arrest citizens in such circumstances. The court noted:

As we explained above, claims of retaliation for the exercise of clearly established First Amendment rights are cognizable under section 1983. See Powell, 391 F.3d at 16. Thus, under Gericke’s version of the facts, any reasonable officer would have understood that charging Gericke with illegal wiretapping for attempted filming that had not been limited by any order or law violated her First Amendment right to film.12 “‘[T]he contours of [the] right [were] sufficiently clear’ that every ‘reasonable official would have understood that what he [was] doing violate[d] that right.'” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d 1149 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). Hence, at this stage of the litigation, the officers are not entitled to qualified immunity.13

The ruling directly controls courts in Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico, but is likely to be cited as persuasive authority in other circuits.

Of course, in terms of the actual merits of the case, Gericke will still have to convince a jury. However, the ruling is yet another warning to police that this is an established right and that immunity will not protected them if they ignore the Constitution.

The ruling is also interesting in light of the recent charge against a Massachusetts woman with wiretapping for recording her own arrest.

Source: Union Leader

20 thoughts on “First Circuit Rules That Police Do Not Have Qualified Immunity After Arresting New Hampshire Woman For Videotaping Traffic Stop”

  1. Matt:
    Perhaps the tide is turning on this point. But there are too many two-party consent states, that infringe upon the ability of activists to uncover government corruption while it is happening.
    California is one of them, and New Hampshire is another. New York is not fortunately, so I was able to surreptitiously record county officials violating the law, and eventually post it on youtube. Had there been a statute against it, I could not have shown the world what abuse they do when they think no one is looking.

  2. It’s called the Hobb’s Act, read it. This ruling doesn’t matter though, we already have the right to resist this tyranny but people won’t do it. Those days of compliance are coming to an end though. And the cops out here are going to have some real problems then.

  3. Gary T.

    You make a good point on the qualified immunity by virtue of the officers relying on the existing statutory law. There can be times where if a constitutional decision invalidates the law, and there has been sufficient time for the news of this decision to filter down in the law enforcement profession, the qualified immunity is at risk because the officers should have knows of the overriding judicial precident. I don’t know if this was applicable for our example here but it was an issue I’ve had to address several times over the years.

  4. EDIT

    meant to say “al\ways LOSE” on election day. But you knew that’s what I meant. Just trying to limit the excuses right wingers might try to use in order to avoid dealing with the point I was trying to make

  5. Most voters love “tough on crime” politicians. Tough on the CAUSES of crime politicians rarely get any positive media, and they always on election day.

    Vote 3rd party if you agree we have way too many laws and too few protections for the remaining liberties we are still allowed.

  6. What a pleasant thread! The Ronette’s great hit song, Be My Baby, is playing in my head. One of the most perfect harmonies ever recorded.

    It will take many decisions like this to get cops “mind right.”[Cool Hand Luke].

  7. As to Prof Turley’s allusion to the Massachusetts case, I believe there is an actual statute in place that prohibits third party recording of police w/o their knowledge.
    The appellate court here would rule they have qualified immunity because they relied on that statute.
    What would be a better attack, would be the constitutionality of the statute itself.
    I think it is unconstitutional to make a law that prohibits recording public officials doing their job in public.

  8. The courts need to come down hard, not only the institutions allowing this civil rights breach, but the individual officers who violate their rights. The message has not yet been received by them that they become the criminals when they act this way.

  9. If you lose you ‘qualified immunity’ who pays attorney fees?

  10. My comment above is neither “righty” nor “lefty” nor “Lib-tard”. Just so ya know.

  11. If you are confused as to how the lady got from being arrested and charged with a crime to the result mentioned in the court of appeals decision then here is what happened that the article skips. AFTER her criminal case ended, she sued the offending state actors in federal court. That case, her civil rights case, made it to the court of appeals. The cops or other state actors do not have the defense of qualified immunity available to them.

  12. As more and more people get dashcams, the recording of police/citizen interactions will become more frequent. Audio can be captured, even if they are not on camera.

    This ruling is a welcome one.. No longer will simply dropping the charges be enough to make it go away.

  13. Why is it that people who are “In charge”, and should there for be held to a higher standard, seem to feel they should be held to a lower standard than the rest of society?

  14. Police officers should have this decision tattooed on their foreheads! Police officers have become street legislators enacting laws on the fly, enforcing them and punishing those who dare to object or who are not obsequious enough to their importance and power. As we have seen, we live in very dangerous times as these Judge Dredd wannabes carry guns and Tasers and are not afraid to use them even against children.

  15. Every once in a while I am amazed when courts and political officials do the right thing. Here is such a case, bravo.

  16. The issue of “qualified immunity” for tax paid public servants who are abusive of their “gift” of authority, shall remain a troubling matter for times extensive.

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