For many years, law enforcement agencies used (mostly outdated) wiretapping laws to justify arrests and prosecutions of citizens who recorded them during their public duties. For a long time, they succeeded, with Illinois seeing a great many of these thanks to its (unconstitutional) law. That law has since been nullified by the courts, but there are still a few legacy laws out there being abused to shut down recordings of police officers.
Another win has arrived for citizens who play an key part in the law enforcement accountability process. Photography Is Not A Crime reports that New Hampshire native Alfred Valentin has had wiretapping charges against him dismissed. Incredibly, New Hampshire prosecutors tried to use another state's law (via an appeals court decision) against Valentin in hopes of getting the charges to stick.
In an attempt to convict the Manchester man, prosecutors tried to take advantage of the Massachusetts wiretapping law, which is different than New Hampshire’s law.
In Massachusetts, the wiretapping law criminalizes all secret recording of conversations, even those that take place in public.
The prosecution claimed that Valentin secretly audio recorded two Manchester police sergeants by holding his phone by his leg, although it apparently wasn’t so secret that the cops didn’t notice.
The events leading to the failed prosecution of Valentin began with a no-knock raid by Manchester's SWAT team. Valentin had taken in a roommate who, unbeknownst to him, was currently under investigation for heroin trafficking. While Valentin was at work, the police raided his house, firing incendiary devices through his windows and seizing his home security cameras.
Valentin was summoned home by a neighbor who had found his dog wandering the streets. When he arrived, he was greeted by plainclothes officers who refused to identify themselves. The officers refused to show him a search warrant, telling him to "come back in an hour" when a supervisor would be there. Valentin returned to see the supervisor (and warrant) and began recording his interactions with the officers. The officers responded by arresting him for violating the state's wiretapping law.
This arrest was followed up by the police department issuing a press release falsely stating Valentin had been arrested in connection with a heroin trafficking investigation. In fact, he was never a suspect and was never charged with any drug-related violations. Because of this bogus press release, Valentin lost his job. He is
now suing the involved officers for over $1 million, citing a list of constitutional violations and libel-related complaints.
The prosecutors invoked Massachusetts law by way of the First Circuit's
Glik decision -- one that found citizens have a First Amendment right to record public servants in any area that does not carry a "reasonable expectation of privacy." The
New Hampshire court quotes this part of the
Glik decision:
"[T]he First Amendment protects the filming of governmental officials in public spaces .... "
"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."'
The state prosecutors, however, focused on
this part of the decision.
The State contends the U.S. Court of Appeals for the First Circuit in Glik and Gericke "found that, in the absence of a statutory exception, the First Amendment to the Federal Constitution does not protect an individual who intercepts public officials' oral communications unless ... the act of recording is done openly."
The officers spotted the cellphone, leading to Valentin's arrest, so it seems unlikely he wasn't "openly" recording them. Valentin maintains he was holding the phone at chest level, which would have made it even more apparent he was holding a recording device. No matter which version of the events is accurate, the placement of phone bears no weight on the court's decision.
The State's representation of Glik and Gericke is manifestly incorrect. The question of "openness" did not enter into the First Amendment analysis in either case. In Glik, the plaintiff brought First and Fourth Amendment claims against Massachusetts following an arrest under Massachusetts' wiretap statute for recording police.
In its First Amendment analysis, the Glik Court wrote, "(i]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative." Glik later suggests that the First Amendment does not protect filming that interferes with police duties. The Court, however, explicitly declined to specify further limitations stating, "[t]o be sure, the right to film is not without limitations… We have no occasion to explore those limitations here, however." Likewise, Gericke allows for reasonable restrictions on the right to record police, but never discusses whether such recordings must be open.
The Glik decision's question of "openness" only applies to alleged
Fourth Amendment violations. The state then argued that both issues must be tied together, because if a secret recording is permissible under the First Amendment then the resulting arrest would be a Fourth Amendment violation. The state argues that both cannot be simultaneously true. The court points out the flaw in this analysis.
If the First Amendment protects secret recordings, the State argues, there could have been no probable cause to arrest the plaintiff, and so the Court would have had no reason to decide whether the recording was secret. To the contrary, the fact that a criminal charge violates the First Amendment does not mean that the arrest underlying the charge violates the Fourth Amendment. Thus, the Glik's analysis about whether the recording was secret for Fourth Amendment purposes does not show that secret recordings are beyond the First Amendment's protection.
[...]
As such, absent contrary authority from the State, the Court finds that the First Amendment protects secretly filming police in public, for the same reasons that the First Amendment generally protects filming police. The public has the right to gather and disseminate information about the police.
Officers can secretly record citizens in public areas and vice versa. Public areas carry very limited expectations of privacy and any privacy protections that might be implicated are dramatically decreased for
public servants performing their duties in
public areas. No relevant court decision says otherwise. There is no statutory requirement that citizens inform public servants that they are being recorded in these situations.
With this out of the way, Valentin should be able to proceed with his lawsuit. Violation of his First Amendment rights has been determined by this dismissal. This will allow him to focus on the other constitutional violations listed in his suit, as well as the alleged libelous statements that cost him his job.
