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

We 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