Case 1:10­cv­10150­LTS Document 1 Filed 02/01/10 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

SIMON GLIK,

)

)

Plaintiff,

)

)

v.

)

)

JOHN CUNNIFFE, PETER J. SAVALlS mld

)

(FNU) HALL-BREWSTER, in their individual )

capacities, and the CITY OF BOSTON,

)

)

Defendffilts.

)

COMPLAINT INTRODUCTION
1. This is a civil rights action for the unlawful arrest and prosecution of Simon Glik for openly recording police activity with his cell phone. Mr. Glik, an attorney, observed an arrest on Tremont Street in Boston. He used his cell phone to record the arrest. The police officers admit in their report that they arrested Mr. Glik only after he told them his cell phone recorded sound as well as video. Massachusetts law does not prohibit openly recording sound. Documenting police conduct in public is expressive activity protected by the First Amendment. Criminal charges were pending against Mr. Glik for four months until the Commonwealth voluntarily dismissed one charge ffild a judge dismissed the other two charges because they werc not supported by probable cause.
2. The City of Boston is sued for failing to properly train Boston police officers that they cmmot arrest people for openly making video or audio recordings of their conduct in pUblic.

Case 1:10­cv­10150­LTS Document 1 Filed 02/01/10 Page 2 of 10
The City also failed to supervise and discipline Boston police officers to assure that they followed the law in making arrests under the state unlawful wiretap statute. The City permitted officers to feel that they could commit misconduct without fear of punishment. JURISDICTION
3. This action is brought pursuant to 42 U.S.C. § J983 and § 1988 and the First, Fourth, and Fourteenth Amendments to the United States Constitution. Title 28 U.S.C. § 1331 and § 1343 provide federal question jurisdiction over all federal claims, and 28 U.S.c. § 1367 provides supplemental jurisdiction over state law claims. PARTIES
4. Plaintiff Simon Glik is a resident of Suffolk County, Massachusetts. He is a member of the Massachusetts bar and is a naturalized citizen of the United States.
5. Defendant John Cunniffe was at all times relevant to this complaint a duly appointed police officer of the Boston Police Department holding the rank of sergeant. His actions alleged in this complaint were taken under color of the laws of the Commonwealth of Massachusetts and the City of Boston. He is sued in his individual capacity.
6. Defendant Peter J. Savalis was at all times relevant to this complaint a duly appointed police officer of the Boston Police Department. His actions alleged in this complaint were taken under color of the laws of the Commonwealth of Massachusetts and the City of Boston. He is sued in his individual capacity.
7. Defendant Hall-Brewster was at all times relevant to this complaint a duly appointed police officer of the Boston Police Department. His first name is not known to Plaintiff. He is sued in his individual capacity.
2

Case 1:10­cv­10150­LTS Document 1 Filed 02/01/10 Page 3 of 10
8. Defendant City of Boston is a duly organized city in the Commonwealth of Massachusetts. FACTS
9. On October 1,2007, Mr. Glik was walking on Tremont Street from Park Street toward Boylston Street, on the sidewalk next to the Boston Common.
10. While he was walking, he saw three Boston police officers he now knows to be the Defendants John Cunniffe, Peter J. Savalis, and Hall-Brewster arresting a young man near a park bench.
11. Mr. Glik heard another young man standing nearby say something like, "You are hurting him, stop."
12. Mr. Glik was concerned that the police officers were using excessive force to make the arrest.
13. Mr. Glile stopped near the bench and took out his cell phone so that he could document the conduct of the police officers.
14. Mr. Glik recorded the incident from approximately ten feet away. He believes he recorded three short segments.
15. Mr. Glik did not speak to the police officers nor did they speak to him until the suspect was in handcutIs.
16. Mr. Glik did not interfere with the officers' actions during the arrest. He simply stood at a distance and recorded the incident.
3

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17. After the suspect was in handcuffs, one of the Defendants said to Mr. Glik, "I think you have taken enough pictures." Mr. Glik responded, "I am recording this. I saw you punch him."
18. One of the Defendants then approached Mr. Glik and asked if the phone recorded audio. Mr. Glik affirmed that he was recording audio. One of the Defendants handcuffed Mr. Gliie Defendants arrested Mr. Glik and took him into custody.
19. According to the police report written by Defendant Savalis, after Mr. Glik said that he was recording audio, he was "placed under arrest for unlawful electronic recording (unlawful audio recording without permission), aiding escape from police officer, and breach of the peace."
20. The suspect did not escape from the police officers, nor did Mr. Glik aid in any attempted escape.
21. Mr. Glik did not breach the peace. 22. During booking, the police obtained a computer flash drive from Mr. Glik. He told the officers that it contained important computer files. The booking otTicer claimed it looked like a microphone and therefore held it as evidence. 23. One of the otTicers who transported Mr. Glik to the South Boston police station asked him ifhe would still be a lawyer after being charged with a felony. 24. Mr. Glik was held at the police station until his wife arrived and posted a fcc. His property was returned with the exception of his cell phone and the flash drive, which were unlawfully held as evidence.
4

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25. Plaintiff was charged with violation oCthe wiretap statute, M.G.L. c. 272 §99 c.l., aiding in the escape of a prisoner, M.G.L. c. 268 § 17, and disturbing the peace, M.G.L. c. 272 § 53.
26. Violation of the wiretap statute is a felony. 27. Any properly trained police officer would have known that the wiretap statute by its terms only applies to those who secretly record conversations and that it could not apply to Mr. Glik, who was openly recording the police officers. Such a police officer would also have known that photography is a form of expression protected by the First Amendment. 28. In 2001, the Massachusetts Supreme Judicial Court decided that secretly recording audio of a police officer violates M.G.L. c. 272 § 99, but stated that the result would be different if the recording had not been secret, for example ifhe were "holding the recorder in plain sight." Commonwealth v. Hyde, 434 Mass. 594,605 (2001). 29. The Commonwealth voluntarily dismissed the charge of aiding in the escape of a prisoner because there was no probable cause for the charge.
, 30. On February 1,2008, Judge Summerville of the Boston Municipal Court dismissed the remaining charges for lack of probable cause. He dismissed the illegal wiretapping charge because the statute and case law require that the unlawful recording be secret and the police officers admitted Mr. Glik was publicly and openly recording them. The judge dismissed the charge of disturbing the peace because while the "officers were unhappy they were being recorded during an arrest ... their discomfort does not make a lawful exercise of a First Amendment right a crime."
5

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31. Boston police officers have arrested other people for violation of the state wiretap statute for openly recording audio using cell phones both before and after Plaintiff s arrest.
32. The City of Boston had an obligation to properly train its police officers on the elements of criminal charges including the state wiretap statute and disturbing the peace. The City failed to train its officers that only secret audio recordings of a police officer are unlawful under the wiretap statute. As a result ofthis failure, it was highly likely that Boston police officers would unconstitutionally arrest people for openly recording police conduct.
33. The City of Boston had an obligation to supervise its police officers to assure that they complied with the state wiretap statute in making arrests. The City did not properly supervise police officers to assure that they complied with this statute. For example, in Mr. Glile's case the supervisory officer on the scene, Defendant Sergeant Cunniffe, participated in the illegal arrest instead of properly instructing his subordinates on the law.
34. The City of Boston had a policy or custom of indifference to misconduct by Boston police officers by failing to properly investigate complaints of misconduct and to discipline officers. The City of Boston also had a policy or custom of tolerating a "code of silence" or "blue wall" in which Boston police officers understood that they were not to report misconduct by fellow police officers.
35. One month after the incident, Mr. Glik met with Boston police officers in order to file an internal affairs complaint with the Boston Police Department. After the charges against him were dismissed, Mr. Glik contacted the internal affairs division again. Despite Mr. Glik's dIorts, and despite Judge Summerville's decision finding that the arrest ofMr. Glik was
6

Case 1:10­cv­10150­LTS Document 1 Filed 02/01/10 Page 7 of 10
unlawful, the Boston Police Department neither investigated nor disciplined the arresting officers.
36. The Boston Police Department has also developed a custom of making it difficult for citizens to file complaints about the conduct of Boston Police officers. The Boston Community Ombudsmen Oversight Panel, set up to review internal investigations found that there "is a strong perception that citizens do not have easy access to filing complaints in supportive and non-intimidating environments."
37. The City of Boston had an obligation to discipline its police officers when they failed to comply with the state wiretap statute in making arrests. The City did not discipline police officers for making illegal arrests of people for openly recording police conduct. This made Boston police officers, including Defendants Cunniffe, Savalis, and Hall-Brewster, feel free to unconstitutionally arrest people for openly recording police conduct.
38. The individual Defendants' actions were taken with reckless disregard for Plaintiffs constitutional rights.
39. Mr. Glik acted lawfully in openly recording police conduct. Mr. Glik was harmed as a result of this incident. He was shocked that Defendants arrested him. While the charges were pending, Mr. Glik suffered emotional distress; he was preoccupied with the case. He was upset and had trouble sleeping. Mr. Glik knew he had not violated the law, but he worried that a felony conviction would prevent him from pursing his career as a lawyer. He had to hire a criminal defense attorney to defend himself from the baseless charges.
7

Case 1:10­cv­10150­LTS Document 1 Filed 02/01/10 Page 8 of 10
40. Mr. Glik had recently finished a clerkship with the Probate and Family Court at the time of the incident. He was looking for a permanent job as an attorney. While the criminal case was pending; his job search was hampered.
41. When the Boston Police Department returned Mr. Glik's property, some of the video he recorded was erased, leaving only one short clip. The data on the flash drive had been tampered with, resulting in additional expense to attempt to restore the data. COUNT! 42 U.S.c. § 1983 Claim Against Individual Defendants CUNNIFFE,
SAVALIS and HALL-BREWSTER 42. The above paragraphs are incorporated by reference. 43. Defendants Cmmiffe, Savalis and Hall-Brewster, acting in concert, arrested Plaintiff. 44. Defendants Cunniffe, Savalis and Hall-Brewster deprived Plaintiff of his wellestablished rights to freedom of speech under the First Amendment to the United States Constitution, and to freedom from arrest without probable cause under the Fourth Amendment to the United States Constitution as applied under the Fourteenth Amendment. 45. As a direct and proximate result of Defendants' actions, PlaintiffsutIered the damages described above.
COUNT II Massachusetts Civil Rights Act M.G.L. c.n, § 111 Against Defeudants
CUNNIFFE, SAVALIS and HALL-BREWSTER 46. Tlte above paragraphs are incorporated by reference. 47. Defendants Cunniffe, Savalis and Hall-Brewster arrested Plaintiff to intimidate him from showing the video of the arrest and to serve as a lesson to others that attempting to openly record police officers in Boston could result in an arrest.
8

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48. Acting jointly and in concert, Defendants CunnitTe, Savalis and Hall-Brewster violated the Plaintiffs civil rights under the Massachusetts Civil Rights Act, M. G. L. c. 12, § III, by threats, intimidation, and coercion.
49. As a direct and proximate result of Defendants' actions, Plaintiff suffered the damages described above. COUNT III Massachusetts Tort of Malicious Prosecution Against Defendants
CUNNIFFE, SAVALIS and HALL-BREWSTER 50. The above paragraphs are incorporated by reference. 51. Acting jointly, Defendants Cunniffe, Savalis and Hall-Brewster caused criminal charges to be brought against Plaintiff without probable cause and with malice. The criminal charges were all disposed of favorably to Plaintiff. 52. As a direct and proximate result of Defendants' actions, Plaintiff suffered the damages described above. COUNT IV 42. U.S.c. § 1983 Monell Claim Against Defendant CITY OF BOSTON 53. The above paragraphs are incorporated by reference. 54. The violations of Plaintiffs constitutional rights by CunnitTe, Savalis and HallBrewster were caused by the policies and customs of the City of Boston as described above. 55. As a direct and proximate result of Defendants' actions, Plaintiff suffered the dmnages described above. WHEREFORE, Plaintiff requests that this Court: I. Awru-d compensatory damages; 2. Award punitive damages against Defendants Cunniffe, Savalis and Hall-Brewster;
9

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3. Award the costs of this action, including reasonable attorney's fees; and

4. Award such other further relief as this Court may deem necessary and appropriate.

JURY DEMAND

A trial by jury is hereby demanded.

RESPECTFULLY SUBMITTED, For the Plaintiff, By his attorneys,

lsi Howard Friedman Howard Friedman, BBO #180080 Law Offices of Howard Friedman I'C 90 Canal Street, Fifth Floor Boston, MA 02114-2022 (617) 742-4100 hfriedman@civil-rights-Iaw.com

lsi David Milton David Milton, BBO #668908 Law Offices of Howard Friedman PC 90 Canal Street, Fifth Floor Boston, MA 02114-2022 (617) 742-4100 dmilton@civil-rights-Iaw.com

Dated: February 1,2010

lsi Sarah Wnnsch Sarah Wunsch, BBO # 548767 American Civil Liberties Union of Massachusetts 211 Congress Street, 3rd floor Boston, MA 02110 (617) 482-3170, ext. 323 swunsch@aclum.org

10

 
 Case 1:10-cv-10150-LTS Document 6 Filed 02/05/10 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

SIMON GLIK,

)

)

Plaintiff,

)

)

v.

)

)

JOHN CUNNIFFE, PETER J. SAVALIS and

)

JEROME HALL-BREWSTER, in their individual )

capacities, and the CITY OF BOSTON,

)

)

Defendants.

)

)

Civil Action No. l:lO-cv-lOlSO-WGY

AMENDED COMPLAINT

INTRODUCTION

1. This is a civil rights action for the unlawful arrest and prosecution of Simon Glik

for openly recording police activity with his cell phone. Mr. Glik, an attorney, observed a11 arrest

on Tremont Street in Boston. He used his cell phone to record the arrest. The police officers

admit in their report that they arrested Mr. Glik only after he told them his cell phone recorded

sound as well as video. Massachusetts law does not prohibit openly recording sound.

Documenting police conduct in public is expressive activity protected by the First Amendment.

Criminal charges were pending against Mr. Glik for four months until the Commonwealth

voluntarily dismissed one charge and a judge dismissed the other two charges because they were

not supported by probable cause.

2. The City of Boston is sued for failing to properly train Boston police officers that

they cannot arrest people for openly making video or audio recordings of their conduct in public.

Case 1:10-cv-10150-LTS Document 6 Filed 02/05/10 Page 2 of 10
The City also failed to supervise and discipline Boston police officers to assure that they followed the law in making arrests under the state unlawful wiretap statute. The City permitted officers to feel that they could commit misconduct without fear of punishmcnt. JURISDICTION
3. This action is brought pursuant to 42 U.S.c. § 1983 and § 1988 and the First, Fourth, and Fourteenth Amendmcnts to the United States Constitution. Title 28 U.S.C. § 1331 and § 1343 provide federal question jurisdiction over all federal claims, and 28 U.S.C. § 1367 provides supplemental jurisdiction over state law claims. PARTIES
4. Plaintiff Simon Glik is a resident of Suffolk County, Massachusetts. He is a member of the Massachusetts bar and is a naturalized citizen of the United States.
5. Defendant John Cunniffe was at all times relevant to this complaint a duly appointed police officer ofthe Boston Police Department holding thc rank of sergeant. His actions alleged in this complaint were taken under color of the laws of the Commonwealth of Massachusetts and the City of Boston. He is sued in his individual capacity.
6. Defendant Peter J. Savalis was at all times relevant to this complaint a duly appointed police officer of the Boston Police Department. His actions alleged in this complaint were taken under color of the laws of the Commonwealth of Massachusetts and the City of Boston. He is sued in his individual capacity.
7. Defendant Jerome Hall-Brewster was at all times relevant to this complaint a duly appointed police officer of the Boston Police Department. He is sued in his individual capacity.
2

Case 1:10-cv-10150-LTS Document 6 Filed 02/05/10 Page 3 of 10
8. Defendant City of Boston is a duly organized city in the Commonwealth of Massachusetts. FACTS
9. On October 1.2007, Mr. Glik was walking on Tremont Street from Park Street toward Boylston Street, on the sidewalk next to the Boston Common.
10. While he was walking, he saw three Boston police officers he now knows to he the Defendants John Cunniffe, Peter J. Savalis, and JeromcHall-Brewster arresting a young man near a park bench.
11. Mr. Glik heard another young man standing nearby say something like, "You are hurting him, stop."
12. Mr. Glik was concerned that the police officers were using excessive force to make the arrest.
13. Mr. Glik stopped near the bench and took out his cell phone so that he could document the conduct of the police officers.
14. Mr. Glik recorded the incident ii·Ol11 approximately ten feet away. He believes he recorded three short segments.
15. Mr. Glik did not speak to the police officers nor did they spcal to him until the suspect was in handcuffs.
16. Mr. Glik did not interfere with the officers' actions during the arrest. He simply stood at a distance and recorded the incident.
3

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17. After the suspect was in handcuffs, one of the Defendants said to Mr. Glik, "I think you have taken enough pictures." Mr. Glik responded, "I am recording this. I saw you punch him."
18. One of the Defendants then approached Mr. Glik and asked if the phone recorded audio. Mr. Glik afllrmed that he was recording audio. One of the Defendants handcuffed Mr. Glik. Defendants arrested Mr. CHik and took him into custody.
19. According to the police report written by Defendant Savalis, after Mr. Glik said that he was recording audio, he was "placed under arrest for unlawful electronic recording (unlawful audio recording without permission), aiding escape from police ofllcer, and breach of the peace."
20. The suspect did not escape from the police officers, nor did Mr. Glik aid in any attempted escape.
21. Mr. Glik did not breach the peace. 22. During booking, the police obtained a computer flash drive ti-om Mr. Glik. I-Ie told the ofllcers that it contained important computer files. The booking officer claimed it looked like a microphone and therefore held it as evidence. 23. One of the ofllcers who transported Mr. Glik to the South Boston police station asked him if he would still be a lawyer after being charged with a felony. 24. Mr. Glik was held at the police station until his wife arrived and posted a fee. His property was returned with the exception of his cell phone and the Hash drive, which were unlawfully held as evidence.
4

Case 1:10-cv-10150-LTS Document 6 Filed 02/05/10 Page 5 of 10
25. Plaintiff was charged with violation of the wiretap statute, M.G.L. c. 272 §99 c.l., aiding in the escape ofaprisoner, M.G.L. c. 268 § 17, and disturbing the peace, M.G.L. c. 272 § 53.
26. Violation of the wiretap statute is a felony. 27. Any properly trained police officer would have known that the wiretap statute by its terms only applies to those who secretly record conversations and that it could not apply to Mr. Glik, who was openly recording the police officers. Such a police officer wonld also have known that photography is a fl)rm of expression protected by the First Amendment. 28. In 2001, the Massachusetts Supreme Judicial Court decided that secretly recording audio of a police officer violatcs M.G.L. c. 272 § 99, but staled that the result would be different if the recording had not been secret, for example ifhe were "holding the recorder in plain sight." Commonwealth v. Hyde, 434 Mass. 594, 605 (2001). 29. The Commonwealth voluntarily dismissed the charge of aiding in the escape of a prisoner because there was no probable cause for the charge. 30. On February 1,2008, Judge Summerville ofthc Boston Municipal Court dismissed the remaining charges for lack of probable cause. He dismissed the illegal wiretapping charge because the statute and case law require that thc lU11awful recording be secret and the police officers admitted Mr. Glik was publicly and openly recording them. The judge dismissed the charge of disturbing the peace because while the "officers were unhappy they were being recorded during an arrest ... their discomfort does not make a lawful exercise of a First Amendment right a crime."
5

Case 1:10-cv-10150-LTS Document 6 Filed 02/05/10 Page 6 of 10
31. Boston police olIicers have arrested other people for violation of the state wiretap statute for openly recording audio using cell phones both before and after Plaintiff's arrest.
32. The City of Boston had an obligation to properly train its police officers on the elements of criminal charges including the state wiretap statute and disturbing the peace. The City failed to train its officers that only secret audio recordings of a police officer are unlawful under the wiretap statute. As a result of this failure, it was highly likely that Boston police officers would unconstitutionally arrest people Jor openly recording police conduct.
33. The City of Boston had an obligation to supervise its police officers to assure that they complied with the state wiretap statute in making arrests. The City did not properly supervise police officers to assure that they complied with this statute. For example, in Mr. Glik's case the supervisory officer on the scene, Defendant Sergeant Cunniffe, participated in the illegal arrest instead of properly instructing his subordinates on the law.
34. The City of Boston had a policy or custom of indifference to misconduct by Boston police officers by failing to properly investigate complaints of misconduct and to discipline officers. The City of Boston also had a policy or custom of tolerating a "code of silence" or "blue wall" in which Boston police officers understood that they were not to report misconduct by fellow police otflcers.
35. One month after the incident, Mr. Glik met with Boston police officers in order to file an internal affairs complaint with the Boston Police Department. After the charges against him were dismissed, Mr. Glik contacted the internal affairs division again. Despite Mr. Glik's efforts, and despite Judge Summerville's decision finding that the arrest of Mr. Glik was
6

Case 1:10-cv-10150-LTS Document 6 Filed 02/05/10 Page 7 of 10
unlawful, the Boston Police Department neither investigated nor disciplined the arresting officers.
36. The Boston Police Department has also developed a custom of making it difficult for citizens to file complaints about the conduct of Boston Police officers. The Boston Community Ombudsmen Oversight Panel, set up to review internal investigations found that there "is a strong perception that citizens do not have easy access to filing complaints in supportive and non-intimidating environments."
37. The City of Boston had an obligation to discipline its police officers when they failed to comply with the state wiretap statute in making arrests. The City did not discipline police officers for making illegal arrests of people for openly recording police conduct. This made Boston police officers. including Defendants CUlmiJTe, Savalis, and Hall-Brewster, feel free to unconstitutionally arrest people for openly recording police conduct.
38. The individual Defendants' actions were taken with reckless disregard for Plaintiffs constitutional rights.
39. Mr. Glile acted lawfully in openly recording police conduct. Mr. Glik was harmed as a result of this incident. I-Ie was shocked that Defendants arrested him. While the charges were pending, Mr. Glik suffered emotional distress; he was preoccupied with the case. He was upset and had trouble sleeping. Mr. CHik knew he had not violated the law, but he worried that a felony conviction would prevent him Ii'om pursing his career as a ]mvyer. He had to hire a criminal defense attorney to defend himself from the baseless charges.
7

Case 1:10-cv-10150-LTS Document 6 Filed 02/05/10 Page 8 of 10
40, Mr. Glik had recently finished a clerkship with the Probate and Family Court at the time of the incident He was looking for a permanent job as an attorney, While the criminal case was pending, his job search was hampered,
41, When the Boston Police Department returned Mr. GIik's property, some of the video he recorded was erased, leaving only one short c1ip.rhe data on the Hash drive had been tampered with, resulting in additional expense to attempt to restore the data, COUNTl 42 U.S.c. § 1983 Claim Against Individual Defendants CUNNIFFE,
SAVALIS and HALL-BREWSTER 42. The above paragraphs are incorporated by reference, 43, Defendants Cunnifte, Savalis and Hall-Brewster, acting in concert, arrested Plaintiff 44. Defendants Cunniffe, Savalis and Hall-Brewster deprived Plaintiff of his wellestablished rights to freedom of speech under the First Amendment to the United States Constitution, and to freedom hom arrest without probable cause under the Fourth Amendment to the United States Constitution as applied under the Fourteenth Amendment. 45, As a direct and proximate result of Defendants' actions, Plaintiff suflered the damages described above, COUNT II Massachusetts Civil Rights Act M.G.L. c.12, § 111 Against Defendants
CUNNIFFE, SAVALIS and HALL-BREWSTER 46. The above paragraphs are incorporated by reference. 47, Defendants CunnitTe, Savalis and Hall-Brewster arrested Plaintiff to intimidate him ii-om showing the video of the mrest 311d to serve as a lesson to others that attempting to openly record police officers in Boston could result in 311 arrest.
8

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48. Acting jointly and in conccrt, Defendants Cunniffe, Savalis and Hall-Brewster violated the Plaintiff's civil rights under the Massachusetts Civil Rights Act, M. G. L. c. 12, § III, by threats, intimidation, and coercion.
49. As a direct and proximate result of Defendants' actions, Plaintiff suffered the damages described above. COUNT HI Massachusetts Tort of Malicious Prosecution Against Defendants
CUNNIFFE, SAVALIS and HALL-BREWSTER 50. The above paragraphs are incorporated by reference. 51. Acting jointly, Defendants Cunniffe, Savalisand Hall-Brewster caused criminal charges to be brought against Plaintiff without probable cause and with malice. The criminal charges were all disposed ofbvorably to Plaintiff. 52. As a direct and proximate result of Defendants' actions, Plaintiff suffered the damages described above. COUNT IV 42 U.S.c. § 1983 Monell Claim Against Defendant CITY OF BOSTON 53. The above paragraphs are incorporated by reference. 54. The violations of Plaintiff's constitutional rights by Cunnifte, Savalis and HallBrewster were caused by the policies and customs of the City of Boston as described above. 55. As a direct and proximate result of Defendants' actions, Plaintiff suffered the damages described above. WHEREFORE, Plaintiff requests that this Court: l. Award compensatory damages; 2. Award punitive damages against Defendrults Cunniffe, Savalis and Hall-Brewster;
9

Case 1:10-cv-10150-LTS Document 6 Filed 02/05/10 Page 10 of 10

3. Award the costs of this action, including reasonable attorney's fees; and

4. Award such other further relief as this Court may deem necessary and appropriate.

JURY DEMAND

A trial by jury is hereby demanded.

RESPECTFULLY SUBMITTED, For the Plaintiff, By his attorneys,

/s/ Hovlard Friedman Howard Friedman, BBO #180080 Law Offices of Howard Friedman PC 90 Callal Street, Fifth Floor Boston. MA 02114-2022 (617) 742-4100 hfricdl11an@civil-rights-law.col11

/s/ David Milton David Milton, BBO #668908 Law Offices of Howard Friedman PC 90 Canal Street, Fifth Floor Boston. MA 02114-2022 (617) 742-4100 dmilton@civil-rights-Iaw.com

Dated: February 5, 2010

/s/ Sarah Wunsch Sarah Wunsch, BBO # 548767 American Civil Liberties Union of Mass,! chusetts 211 Congress Street, 3rd floor Boston, MA 02110 (617) 482-3170, ext. 323 swul1sch@aclul11.org

10

 
 Case 1:10­cv­10150­LTS Document 15 Filed 04/22/10 Page 1 of 19
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-10150 WGY
SIMON GLIK,
Plaintiff v.
JOHN CUNNIFFE, PETER J. SAVALIS and JEROME HALL-BREWSTER, in their individual capacities, and the CITY OF BOSTON,
Defendants.
DEFENDANTS, CITY OF BOSTON, JOHN CUNNIFFE, PETER J. SAVALIS AND JEROME HALL-BREWSTER’S MEMORANDUM OF LAW IN SUPPORT OF THEIR
MOTION TO DISMISS THE PLAINTIFF’S COMPLAINT
I. INTRODUCTION The Defendants, City of Boston (the “City”), John Cunniffe, Peter Savalis, and Jerome
Hall-Brewster (collectively referred to as the “Defendants” or “officers”) hereby move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Plaintiff’s complaint. As grounds therefore, the City and the Defendants state that the Plaintiff, Simon Glik (the “Plaintiff” or “Glik”) has not asserted a plausible § 1983 or Massachusetts Civil Rights claim against the City or the officers because:
1. The facts alleged in Plaintiff’s Complaint clearly indicate that the officers did not violate his First or Fourth Amendment rights;
2. Plaintiff’s Complaint demonstrates that the officers are entitled to qualified immunity because it is not well-settled that he had a constitutional right to record the officers;
3. Plaintiff has not pled any facts that would support a claim under the Massachusetts Civil Rights Act;
1

Case 1:10­cv­10150­LTS Document 15 Filed 04/22/10 Page 2 of 19

4 Plaintiff has not pled any facts that would support a claim of malicious prosecution; and
5. Plaintiff has failed to plead facts that would support his 42 U.S.C. § 1983 claim against the City.
II. FACTUAL BACKGROUND1 The Plaintiff states that on October 1, 2007, he was walking on the Tremont Street
sidewalk, heading from Park Street to Boylston Street, when he saw the officers arresting a suspect near a park bench. See Complaint at ¶¶ 9-10 attached hereto as Exhibit A (hereinafter, “Complaint at ¶__”). The Plaintiff then took out his cell phone and, standing ten feet away, recorded the officers arresting the suspect. See id. at ¶¶ 13-14. Using his cell phone, the Plaintiff recorded three separate segments of the ongoing arrest. See id. at ¶¶ 14-15. At no time did the Plaintiff speak to the officers before the suspect they had apprehended was handcuffed. See id. at ¶ 15.
After the suspect was placed in handcuffs, one of the officers approached the Plaintiff and stated, “I think you have taken enough pictures,” to which the Plaintiff responded, “I am recording this. I saw you punch him.” See id. at ¶ 17. One of the other officers then asked if the Plaintiff’s phone was recording audio. See id. at ¶ 18. The Plaintiff confirmed that his phone had been recording audio, and as a result, the officers placed the Plaintiff under arrest for: (1) unlawfully intercepting their oral communications in violation of M.G.L. c. 272, § 99; (2) aiding in the escape of a prisoner in violation of M.G.L. c. 268, § 17; and (3) disturbing the peace in violation of M.G.L. c. 272, § 53. See id. at ¶ 25.

1

Although the Defendants dispute the following facts, for the limited purposes of this

motion, the Defendants assume these facts as true.

2

Case 1:10­cv­10150­LTS Document 15 Filed 04/22/10 Page 3 of 19
The prosecution for the Commonwealth of Massachusetts voluntarily dismissed the charge of aiding in the escape of a prisoner, but did go forward on the other two charges. See id. at ¶ 29-30. On February 1, 2008, Judge Summerville of the Boston Municipal Court dismissed the remaining two charges for lack of probable cause. See id. at ¶ 29. The Court reasoned that the Plaintiff’s recording of the arrest was not secret and that the officers had impliedly consented to the recording because the Plaintiff had openly displayed his cell phone while the officers were effecting an arrest of a suspect. See id. The Plaintiff then filed this lawsuit on February 1, 2010. III. MOTION TO DISMISS STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The Rule 8 pleading standard does not require “detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (U.S. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A pleading that offers “labels and conclusions [or] a formulaic recitation of the elements of a cause of action will not do.” Id. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. If the well-pleaded facts “do not permit the court to infer more than the mere possibility” of the wrong alleged by Plaintiff, the complaint has alleged, but has not shown, that the pleader is entitled to relief. Id. at 1950.
Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 1949. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility
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that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of entitlement to relief.” Id.
Within this analytical framework, the Plaintiff has failed to plead facts sufficient to state a plausible § 1983 claim against the City. IV. ARGUMENT
A. PLAINTIFF FAILS TO STATE ACTIONABLE CLAIMS AGAINST THE OFFICERS IN COUNT 1 BECAUSE PLAINTIFF HAS FAILED TO ALLEGE THE REQUISITE CONSTITUTIONAL VIOLATION TO SUSTAIN CLAIMS UNDER 42 U.S.C. § 1983. The Plaintiff’s 42 U.S.C. § 1983 claim fails because the officers did not violate his
Constitutional rights. To establish liability under 42 U.S.C. § 1983, “plaintiffs must show by a preponderance of the evidence that: (1) the challenged conduct was attributable to a person acting under color of state law; and (2) the conduct deprived the plaintiff of rights secured by the Constitution or laws of the United States.” Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 15152 (1st Cir. 2006). In his Complaint, Plaintiff claims that the officers deprived him of his First Amendment right to “document[ ] police conduct” and his Fourth Amendment right to be free from arrest without probable cause. Complaint at ¶¶ 1, 44. The facts as alleged in Plaintiff’s Complaint, however, demonstrate that the Plaintiff was not deprived of his First or Fourth Amendment rights because (1) there is no unfettered First Amendment right to document police conduct; and (2) probable cause existed to arrest the Plaintiff for secretly recording the Defendants’ oral communications.
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1. THE OFFICERS DID NOT VIOLATE THE PLAINTIFF’S FIRST AMENDMENT RIGHTS.
With respect to Plaintiff’s claim that his First Amendment right to document police conduct was violated, no such constitutional right exists. As an initial matter, Massachusetts General Laws, Ch. 272, § 99 specifically prohibits individuals from secretly recording the oral communications of another.2 Moreover, the Massachusetts Supreme Judicial Court, in Commonwealth v. Hyde, 434 Mass. 593, 605 (2001) upheld the conviction of the defendant, Michael Hyde, for violating the Massachusetts Anti-Wiretapping statute when he secretly recorded the oral communications of police officers during a traffic stop. Thus, it is clear that in the Commonwealth of Massachusetts, there is no unfettered First Amendment right to document police conduct.
While other jurisdictions have recognized that there may be a First Amendment right to videotape or photograph police conduct, no such right has been declared by Massachusetts, the First Circuit, or the U.S. Supreme Court. Compare, Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (First Amendment right to photograph and/or videotape police officers is subject to time, place, and manner restrictions); Gilles v. Davis, 427 F.3d 197, 212 n. 14 (3rd Cir. 2005) (“[V]ideotaping or photographing police in the performance of their duties on public property may be a protected activity. . ..”) (emphasis added); with Jean v. Massachusetts State Police, 492 F.3d 24, 33 (1st Cir. 2007) (holding First Amendment only protected individual’s right to disseminate recording of police officers made in violation of Mass. Gen. Laws, Ch. 272 § 99); Gouin v. Gouin, 249 F.Supp.2d 62, 79 (D.Mass. 2003) (allowing defendant police officers in § 1983 case to proceed with counterclaim against arrestee/plaintiff for violating Massachusetts

2

Plaintiff does not challenge the constitutionality of Mass. Gen. Laws, Ch. 272, § 99, nor

would this lawsuit be the proper vehicle for doing so.

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Anti-Wiretapping statute despite plaintiff’s argument that defendants should have noticed he was recording them); Hyde, 434 Mass. at 595 (“We conclude that the Legislature intended G.L. c. 272, § 99, strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge.”) (emphasis added).
At most, the First Circuit, in Jean, 492 F.3d at 33, has held that there is a First Amendment right for an individual to disseminate a recording obtained in violation of Mass. Gen. Laws, Ch. 272 § 99 if that individual did not take part in the illegal recording. Given that there is no unfettered First Amendment right to document police conduct, Plaintiff’s 42 U.S.C. § 1983 claims against the officers must be dismissed.
2. THE OFFICERS DID NOT VIOLATE THE PLAINTIFF’S FOURTH AMENDMENT RIGHTS.
While Plaintiff does indeed enjoy a Fourth Amendment right to be free from arrest without probable cause, Plaintiff’s right was not violated when he was arrested for violating the Massachusetts Anti-Wiretapping statute because the officers had probable cause to arrest him. Probable cause exists when the “facts and circumstances within the officer's knowledge” at the time of arrest “are sufficient to warrant a prudent person, or one of reasonable caution, in believing ... that the suspect has committed, is committing, or is about to commit an offense.” Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir.2009) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). In other words, “[p]robable cause to arrest exists where the facts and circumstances within the police officer's knowledge and of which she had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the arrestee had committed or was committing an offense.” Sheehy v. Town of Plymouth, 191 F.3d 15, 19 (1st Cir.1999).
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“The test for probable cause does not require the officers' conclusion to be ironclad, or even highly probable. Their conclusion that probable cause exists need only be reasonable.” Id. (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 11 (1st Cir.2004)). When an arrest is challenged on the basis that probable cause was lacking, the arrest is “deemed objectively reasonable unless there clearly was no probable cause at the time the arrest was made.” Sheehy v. Town of Plymouth, 191 F.3d 15, 19 (1st Cir. 1999) (quoting Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir. 1993) (emphasis added).
As discussed infra, in Section B of this Memorandum, the Massachusetts AntiWiretapping statute prohibits the secret interception of oral communications. See Mass. Gen. Laws, Ch. 272 § 99. The Massachusetts Anti-Wiretapping statute, as applied to the facts alleged in Plaintiff’s Complaint, clearly demonstrates that probable cause existed to arrest Plaintiff. The officers had probable cause because Plaintiff recorded their oral communications without their knowledge or consent, while they were effecting the arrest of a suspect. Plaintiff’s Complaint is devoid of any facts that would suggest that the officers were aware that Plaintiff’s cell phone had audio recording capabilities or that the Plaintiff had informed them of his intent to record their oral communications while they were arresting the suspect. In fact, Plaintiff admits in his Complaint that he did not tell the officers he was recording their oral communications until after the suspect had been arrested and one of the officers approached him and asked if his cell phone was recording audio. Complaint at ¶¶ 17, 18.
Under these circumstances, it was reasonable for the officers to believe that the Plaintiff had violated the Massachusetts Anti-Wiretapping statute. Because probable cause existed to arrest Plaintiff, his claim that he was deprived of his Fourth Amendment right to be free from arrest without probable cause fails.
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B. THE OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY ON PLAINTIFF’S CLAIM THAT THEY VIOLATED HIS FIRST AND FOURTH AMENDMENT RIGHTS. Even if the Plaintiff had a First Amendment right to record the arrest and a Fourth
Amendment right to be free from search and seizures as a result of that recording, the officers are entitled to qualified immunity because there is no clearly established constitutional right to record police officers. Qualified immunity is not merely a defense, it is immunity from suit, therefore, qualified immunity must be resolved at the earliest state of litigation. Mitchell v. Forsyth, 472 U.S. 511, 526 (1986). Qualified immunity shields government officials performing discretionary functions from “liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.s. 800 (1992). Qualified immunity, therefore, applies “unless the official’s conduct violated a clearly established constitutional right.” Pearson v. Callahan, 129 S.Ct. 808, 816 (2009). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “The protection of qualified immunity applies regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” Pearson, 129 S.Ct. 808 at 815 (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)).
The doctrine of qualified immunity under Saucier v. Katz, 533 U.S. 194, 201 (2001), and as modified by Pearson v. Callahan, 129 S.Ct. 808, 815-16 (2009), requires a two-part test. The court must decide (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. Maldonado v. Fontanes, 568 F.3d 263, 268-69 (2009) (citing
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Pearson, 129 S.Ct. at 815-16). With respect to the second element, a right is “clearly established” when:
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Anderson v. Creighton, 483 U.S. 635, 639-40 (1987) (internal citations omitted). “While Pearson rendered the sequential nature of the Saucier analysis permissive rather than mandatory, it left intact the substantive content of the two-part test.” Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 526 (1st Cir.2009) (citing Pearson, 129 S.Ct. at 818; Maldonado, 568 F.3d at 268-29). Thus, a Court may begin its analysis with determining whether a clearly established constitutional right exists if consideration of the underlying constitutional question would result “in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case.” Pearson, 129 S. Ct. at 818. Within this analytical framework, the Defendants state that it would not have been clear to a reasonable officer in Defendants’ position that arresting Plaintiff for violating the Massachusetts Anti-Wiretapping statute would have impinged upon his First and Fourth Amendment Rights. 1. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY AS THERE IS NO CLEARLY ESTABLISHED FIRST AMENDMENT RIGHT TO RECORD POLICE CONDUCT. In several recent decisions outside the First Circuit, United States district courts have found that there is no “clearly established” First Amendment right to videotape or record police officers in the course of their official duties. See, e.g., Matheny v. County of Allegheny, 2010 WL 1007859 (W.D.Pa.) (“[A]s of April 29, 2009, the Court concludes that the purported First
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Amendment right to record the police was not clearly established.”); Gravolet v. Tassin, 2009
WL 1565864, at *3-4 (E.D.La.) (“Given the uncertainty in the case law and the lack of guidance
from the Fifth Circuit, this Court is unable to find as a matter of law that there was a clearly
established right to videotape police officers at the time of the arrest.”) (internal quotations
omitted); Kelly v. Borough of Carlisle, 2009 WL 1230309 at * 8-9 (First Amendment right to
record police not clearly established at time of plaintiff’s arrest in May, 2007).
Assuming arguendo that a First Amendment right to “document[ ] police conduct”
existed, a reasonable officer in the Defendants’ position would still have believed that arresting
Plaintiff for recording his oral communications without his knowledge or consent was
constitutional. The Massachusetts Anti-Wiretapping Statute, Mass. Gen. Laws, Ch. 272 § 99
provides in relevant part:3
Except as otherwise specifically provided in this section any person who willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.
The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in

3

Again, Plaintiff does not challenge the constitutionality of Mass. Gen. Laws, Ch. 272 §

99.

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the course of an investigation of a designated offense as defined herein. (emphasis added). Plaintiff concedes in his Complaint that he was not arrested for videotaping the officers while they were in the process of effecting an arrest, but rather, he was arrested only after he confirmed to the officers that he was using his cell phone to record audio. Complaint at ¶¶ 18, 19. Pursuant to Mass. Gen. Laws, Ch. 272 § 99 and as interpreted by the Massachusetts Supreme Judicial Court in Commonwealth v. Hyde, it is unlawful to secretly intercept the oral communications of another. In Hyde, the Supreme Judicial Court upheld the defendant’s conviction for secretly recording his exchange with two police officers after a routine traffic stop. Id. at 595. In upholding the defendant’s conviction, the SJC declared that it was the intent of the Legislature to “strictly” prohibit all secret audio recordings when made without the knowledge or permission by all parties. Id. The crux of Plaintiff’s Complaint is that he was “openly” recording the officers, and as such, the officers should have known that his actions were not in violation of the Massachusetts Anti-Wiretapping statute. In support of this argument, Plaintiff relies on the language of the SJC decision in Hyde, that states “[defendant’s prosecution] could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.” Hyde, 434 Mass. at 605 (emphasis added).
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Plaintiff’s argument fails because it is based on the assumption that holding a cell phone in plain sight in 2007 is the equivalent of holding a tape recorder in plain sight in 1998.4 Such an assumption is implausible. As an initial matter, Plaintiff did in fact secretly record the officers’ oral communications in violation of the Massachusetts Anti-Wiretapping statute. His audio recording of the officers was done without their knowledge.5 Plaintiff concedes as much in his Complaint when he states that it was not until he confirmed to one of the officers that he was recording audio that he was arrested. Complaint at ¶ 18. Prior to that, the officers were under the belief that Plaintiff was simply taking pictures of them with his cell phone. Complaint at ¶¶ 17-18. Thus, prior to that point in time, Plaintiff had been secretly recording the oral communications of the officers.
The fact that the Plaintiff did not conceal his cell phone does not diminish the reality that the recording itself was secret. It would defy logic for the Anti-Wiretapping Statute to prohibit recordings only when the recording device itself is concealed; but not prohibit clandestine recordings as long as the recording device, notwithstanding how inconspicuous the recording capabilities of that device may be, is in “plain view.” Cell phones primarily transmit oral

4

The defendant in the Hyde case secretly recorded his conversation with police officers

with a hand-held tape recorder. Commonwealth v. Hyde, 434 Mass. 594, 608 n.7 (2001)

(Marshall, C.J., dissenting). Noteworthy in her dissent is Chief Justice Marshal’s recognition

that in 1968, when the Massachusetts Legislature amended Mass. Gen. Laws, Ch. 272 § 99, a

hand-held tape recorder, like the one used by the defendant, Michael Hyde, was far from being

new technology.

5

The American Heritage Dictionary defines the word “secret” in pertinent part as follows:

(1) “Kept hidden from knowledge or view; concealed; (2) Dependably discreet; (3) Operating in

a hidden or confidential manner.” AMERICAN HERITAGE DICTIONARY 1630 (3d ed. 1992),

attached hereto as Exhibit B.

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communications, they do not necessarily record oral communications.6 Likewise, it would be ludicrous to suggest that the officers were aware that their oral communications were being recorded simply because Plaintiff, standing ten feet away and not uttering a single word, held his cell phone towards them while their attention was focused solely on effecting an arrest. Complaint at ¶¶ 14-16. Plaintiff’s own allegations demonstrate that the officers were under the impression that he was taking photographs with his cell phone until he was asked by one of the officers if he was recording audio. Complaint at ¶¶ 17-18. Hence, the officers were unaware that their oral communications were being recorded until that moment, which means that prior to that, Plaintiff’s recording of the officers arresting the suspect was in fact secret and in violation of the Massachusetts Anti-Wiretapping statute.
Second, it is unlikely that the SJC, when it issued the Hyde decision in 2001, had the foresight that, in the year 2007, cell phones would have the capability of not only taking pictures, but also the capability of making video and audio recordings. It is unreasonable to argue then, that the SJC had cell phones in mind when it held that the defendant would have been free from prosecution had he simply held his recording device in plain sight. Thus, Plaintiff’s endeavor to fit his actions in this case, into the “plain sight” exception announced in Hyde, is the equivalent of trying to fit a square peg into a round hole.
Under the circumstances as alleged by the Plaintiff in his Complaint, it is clear that officers acted reasonably when they arrested Plaintiff for violating the Massachusetts Anti-

6

In her emphatic dissent, Chief Justice Marshall specifically referred to “sophisticated

inventions [recording devices] of then-recent origin that could be concealed in telephones or

walls,” as what the Massachusetts Legislature intended to prohibit when it enacted the Anti-

Wiretapping statute such as the Plaintiff, Simon Glik’s, high-tech video/audio recording cell

phone; rather than readily-discernable recording devices, such as Michael Hyde’s hand-held tape

recorder. Hyde, 434 Mass. at 608 n. 7 (citing INTERIM REPORT OF THE SPECIAL COMMISSION ON

ELECTRONIC EAVESDROPPING, 1967 Senate Doc. No. 1198 at 3 (1967 Report)).

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Wiretapping statute. Furthermore, in light of the ever-evolving ways in which individuals can record oral communications, the “plain sight” exception does not define the contours of the right in such a manner that would make reasonable officers in the Defendants’ position understand that arresting Plaintiff for violating the Massachusetts Anti-Wiretapping statute would impinge on his First Amendment right to record the incident. Even if Plaintiff’s actions are determined to fall within the “plain sight” exception, the officers’ mistaken belief that their consent was required before their oral communications could be recorded was in fact, a reasonable one and they are entitled to the protections of qualified immunity.
2. THE OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY BECAUSE A REASONABLE OFFICER WOULD HAVE BELIEVED THAT THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR VIOLATING THE MASSACHUSETTS ANTI-WIRETAPPING STATUTE.
Plaintiff contends that the Defendants lacked probable cause to arrest him for violating the Massachusetts Anti-Wiretapping statute. As discussed supra in Section A(2) of this Memorandum, the Plaintiff indeed has a clearly established right to be free from arrest without probable cause. See U.S. Const. amend. IV; Beck v. Ohio, 379 U.S. 89, 91 (1964). Assuming arguendo that the officers did not have probable cause to arrest the Plaintiff, the officers are still entitled to qualified immunity “so long as the presence of probable cause is at least arguable.” Ricci v. Urso, 974 F.2d 5, 7 (1st Cir.1992); Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985).
In this case, it was reasonable for the Defendants to believe that they had probable cause to arrest the Plaintiff. The Plaintiff had been recording their oral communications while they were arresting a suspect without their consent or knowledge. Complaint at ¶¶ 13-18. The Plaintiff admits as much when he states that after the suspect had been arrested he was asked by one of the Defendants if he was recording audio. Complaint at ¶ 18. Based on the language of the Massachusetts Anti-Wiretapping statute, and the SJC’s decision in Hyde, as discussed supra,
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it was reasonable for the Defendants to believe that their consent was or knowledge was required for Plaintiff to lawfully record their oral communications. Plaintiff’s admission to the officers that his cell phone recorded audio was sufficient to establish the presence of “at least arguable” probable cause. Thus, the Defendants are entitled to qualified immunity for Plaintiff’s claim that they violated his Fourth Amendment right to be free from arrest without probable cause.
3. MASSACHUSETTS CIVIL RIGHTS ACT: COUNT II As outlined above, the Plaintiff cannot succeed on his 42 U.S.C. § 1983 claim, because
there was no constitutional violation or, alternatively, because the officers are entitled to qualified immunity. If there is no constitutional violation, the Plaintiff’s MCRA claim also cannot stand. See Bell v. Mazza, 394 Mass. 176, 181 (1985) (action under MCRA is coextensive with § 1983 and requires proof of an unlawful act). Likewise, if the officers are entitled to qualified immunity on the Plaintiff’s 42 U.S.C. §1983 claim then they are also entitled to qualified immunity on plaintiff’s claim under the MCRA. See Foster v. McGrail, 844 F.Supp. 16, 25 (D. Mass. 1994) (“The Massachusetts legislature, in enacting the [Massachusetts] Civil Rights Act, adopted the same standard of immunity for public officials as developed under § 1983 for federal claims.”) See also Santiago v. Fenton, 891 F.2d 373, 386 n. 10 (1st Cir.1989) (noting that federal qualified immunity law applies to the Massachusetts Civil Rights Act). Consequently, because the Plaintiff cannot plead a viable 42 U.S.C. § 1983 cause of action, his MCRA claim also fails.
Furthermore, even if the Plaintiff could establish a constitutional violation, he has not alleged facts that meet the MCRA’s higher standard of proof – namely, that the interference or attempted interference with the Plaintiff’s Constitutional rights was accompanied by threats, intimidation or coercion. Doe v. Senechal, 66 Mass.App.Ct. 68, 78-79 (2006). Beyond taking
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the Plaintiff’s phone and arresting him, there are simply no allegations in the Complaint that the officers threatened, intimidated, or coerced the Plaintiff. A deprivation of constitutional rights, without accompanying threats, intimidation, or coercion, does not implicate the MCRA. Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771, 781 (1987). Therefore, the Plaintiff cannot succeed on that claim based on the four corners of his Complaint.
4. MALICIOUS PROSECUTION: COUNT III The Plaintiff’s malicious prosecution claim also fails because the officers had probable
cause to arrest him. The elements of a common law cause of action for malicious prosecution are: (1) the commencement or continuation of a criminal proceeding against the eventual plaintiff at the behest of the eventual defendants; (2) the termination of the proceedings in favor of the accused; (3) an absence of probable cause for the charges; and (4) actual malice. Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001) (citing Correllas v. Viveiros, 410 Mass. 314, 318 (1991)); See also Santiago v. Fenton, 891 F.2d 373 (1st Cir. 1989); Foley v. Polaroid Corp., 400 Mass. 82 (1987). Thus, Plaintiff’s malicious prosecution claim requires him to prove that his arrest was brought for an improper purpose, without probable cause, and that the legal proceedings were terminated in his favor. Meehan v. Town of Plymouth, 167 F.3d 85, 88-89 (1st Cir. 1999) (citing Landrigan v. City of Warwick, 628 F.2d 736, 745 n. 6 (1st Cir. 1980)). An essential element of Plaintiff’s malicious prosecution claim, therefore, is that the Officers lacked probable cause to arrest him. See Wynne v. Rosen, 391 Mass. 797, 802 (1984).
As discussed supra, in Section A(2) of this Memorandum, the officers had probable cause to bring a criminal proceeding against Plaintiff. The probable cause was based on the officers’ observations of the Plaintiff holding out a cell phone towards them while they were arresting a suspect, and Plaintiff’s admission after the suspect’s arrest that he had been recording their oral
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communications with his cell phone without their permission or knowledge. Moreover, Plaintiff’s Complaint lacks any facts or allegations that would suggest that the officers acted with malice against him or arrested him with improper purpose. The facts, as alleged by Plaintiff, demonstrate that the officers simply arrested Plaintiff for violating the Massachusetts AntiWiretapping statute and attempting to interfere with their efforts to arrest a suspect. Finally, even if the officers lacked probable cause to arrest the Plaintiff, their mistake was reasonable, and thus they are protected by qualified immunity.
5. 42 U.S.C. § 1983: MONELL CLAIM AGAINST THE CITY OF BOSTON The final count in the Plaintiff’s Complaint is a claim of municipal liability against the
City. Specifically, the Plaintiff claims that the City failed to train and supervise its police officers on the proper application of M.G.L. c. 272, § 99. This theory of municipal liability also fails.
In order to prove his claim that the City is liable under 42 U.S.C. § 1983, the Plaintiff must show: (1) that he suffered the deprivation of a constitutional right(s); (2) that the officers that caused the harm were acting under color of state law; (3) that the City had an unconstitutional policy, custom or practice; and (4) that the custom, policy or practice was the moving force behind the officers violation of the Plaintiff’s constitutional right(s). See Monell v. Department Social Services, 436 U.S. 658, 690 (1978); Young v. City of Providence, 404 F.3d 4, 25-26 (1st Cir. 2005). Further, a municipality can only be liable under § 1983 for a custom or policy of failing to discipline or supervise its officers if that failure causes a constitutional violation or injury and “amounts to deliberate indifference to the rights of persons with whom the [officers] come into contact.” DiRico v. City of Quincy, 404 F.3d 464, 468-469 (1st Cir. 2005). If the Plaintiff fails to prove any of those elements, including that he has suffered a
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constitutional injury, his 42 U.S.C. § 1983 claim against the City fails. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). As discussed supra in Section A of this Memorandum, the Plaintiff has suffered no constitutional injury. Consequently, he has not established facts that would enable him to succeed on a claim of municipal liability against the City.
Additionally, the Plaintiff’s claim against the City also fails on the grounds that his right to record the officer was not well-settled. While it is true that qualified immunity is not a defense to a municipal liability claim, where the unsettled state of the law makes it reasonable for police officers to believe that the conduct is constitutional, a municipality cannot be deliberately indifferent to citizens’ rights in failing to teach its officers that such conduct was unconstitutional. See Joyce v. Tewksbury, 112 F.3d 19, 25 (1st Cir. 1997). See also Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007); Beard v. Whitmore Lake School Dist., 2007 WL 1748139 (6th Cir. 2007); Townes v. City of New York, 176 F.3d 138, 143-44 (2nd Cir. 1999); Williamson v. City of Virginia Beach, Va., 786 F. Supp. 1238, 1264–65 (E.D. Va. 1992), aff'd, 991 F.2d 793 (4th Cir. 1993). As discussed supra in Section B of this Memorandum, the Plaintiff had no clearly established right to record the officers. Thus, the City could not have been deliberately indifferent in failing to train and/or supervise the officers that arresting the Plaintiff under the relevant circumstances was unconstitutional and the Court should dismiss the Plaintiff’s claim against the City.
IV. CONCLUSION For the reasons stated above, the Defendants, City of Boston, John Cunniffe, Peter J.
Savalis, and Jerome Hall-Brewster respectfully request that all counts against them be dismissed with prejudice.
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CERTIFICATE OF SERVICE
I hereby certify that on this day, a copy of this document filed through the CM/ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants.

Respectfully submitted,
DEFENDANTS, CITY OF BOSTON, JOHN CUNNIFFE, PETER J. SAVALIS, AND JEROME HALL-BREWTER
William F. Sinnott, Corporation Counsel
By their attorneys,

4/22/10 /s/ Lisa A. Skehill__ Date Lisa A. Skehill

/s/ Lisa A. Skehill Lisa A. Skehill, BBO # 675344 Ian D. Prior, BBO # 655704 Assistant Corporation Counsel City of Boston Law Department 1 City Hall Plaza, Room 615 Boston, MA 02201 (617) 635-4022 (Skehill) (617) 635-4017 (Prior)

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 Case 1:10-cv-10150-LTS Document 17 Filed 05/14/10 Page 1 of 21

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

SIMONGLIK, Plaintiff,
v.
JOHN CUNNIFFE, et aI., Defendants.

) ) ) ) Civil Action No. 1:10-cv-10150-WGY ) ) ) )

PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS INTRODUCTION
This case concerns the fnndamental right of citizens to openly record police activity in a public place. On October 1,2007, Plaintiff Simon Glik witnessed an arrest on Boston Common and openly recorded the incident with his cell phone. Using the excuse that Mr. Glik recorded audio without their permission, Defendant police officers arrested Mr. Glik and charged him with violating the Massachusetts wiretap statute, as well as aiding the escape of a prisoner and breach of the peace. The arrest violated clearly established First and Fourth Amendment principles. Any reasonable police officer would have been aware that there was no probable cause for the arrest because Massachusetts law does not prohibit openly recording sound. Any reasonable police officer would have known that documenting police conduct in public in a nondisruptive manner is expressive activity protected by the First Amendment.
Defendants' motion to dismiss misconstrues the Massachusetts wiretap law and ignores the substantial body of law - including cases from the First Circuit and District of Massachusetts - establishing a First Amendment right to record police conduct. Defendants also ask the Court

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to construe the allegations of the Complaint in the light most favorable to them. The Court should deny Defendants' motion in its entirety.
STATEMENT OF FACTS The Amended Complaint ("Complaint," "AC") alleges the following facts. On October I, 2007, Attorney Simon Glik was walking on Tremont Street from Park Street toward Boylston Street, on the sidewalk next to the Boston Common. AC ~~ 4,9. He saw three Boston police officers he now knows to be Defendants John Cunniffe, Peter J. Savalis, and Jerome Hall-Brewster arresting a young man near a park bench. AC ~ 10. Mr. Glik heard another young man standing nearby say something like, "You are hurting him, stop." AC ~ II. Mr. Glik was concerned that the police officers were using excessive force to make the arrest. AC ~ 12. Mr. Glik stopped near the bench and took out his cell phone so that he could document the conduct of the police officers. AC ~ 13. His phone recorded video with sonnd. AC ~~ I, 1718. Mr. Glik stood about ten feet away and recorded the incident. AC ~ 14. He believes he recorded three short segments. AC ~ 14. He did not interfere with the officers' actions during the arrest. AC ~ 16. After the suspect was in handcuffs, one of the Defendants said to Mr. Glik, "1 think you have taken enough pictures." AC '117. Mr. Glik responded, "1 am recording this. 1 saw you punch him." AC ~ 17. One of the Defendants then approached Mr. Glik and asked if the phone recorded audio. AC ~ 18. Mr. Glik said that it did. AC ~ 18. One of the Defendants handcuffed Mr. Glik. AC ~ 18. Defendants arrested Mr. Glik and took him into custody. AC ~ 18. Plaintiff was charged with violating the wiretap statute, M.G.L. c. 272 § 99; aiding in the
escape of a prisoner, M.G.L. c. 268 § 17; and disturbing the peace, M.G.L. c. 272 § 53. AC 'Ii 25.
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The suspect did not escape from the police officers, nor did Mr. Glik aid in any attempted escape. AC ~ 20. The Commonwealth voluntarily dismissed the aiding an escape charge for lack
of probable cause. AC '129.
On February 1, 2008, Judge Summerville of the Boston Municipal Court dismissed the
remaining charges for lack of probable cause. AC ~ 30. He dismissed the illegal wiretapping charge because the statute and case law require that the unlawful recording be secret and the police officers admitted Mr. Glik was publicly and openly recording them. AC ~ 30. The judge dismissed the charge of disturbing the peace because while the "officers were unhappy they were being recorded during an arrest ... their discomfort does not make a lawful exercise of a First Amendment right a crime." AC ~ 30.
When Mr. Glik received his cell phone back from the Police Department, some of the video he had recorded of Defendants had been erascd. AC ~ 41. Mr. Glik suffered financial and emotional injuries as a result of Defendants' actions. AC ~~ 39-41.
Boston police officers have arrested other people for violation of the state wiretap statute for openly recording audio using cell phones both before and after Plaintiff's arrest. AC ~ 31. The City of Boston failed to train its officers that only secret audio recordings of a police officer are tIDlawful under the wiretap statute. AC ~ 32. Nor did the City of Boston properly supervise police officers to assure that they complied with this statute. AC ~ 33. The City of Boston did not discipline police officers for making illegal arrests of people for openly recording police conduct. AC ~ 37. As a result of these failures, it was highly likely that Boston police officers would w1constitutionally arrest people for openly recording police conduct. AC ~ 32.
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ARGUMENT To survive a motion to dismiss, a complaint need only "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Rule 8 "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. Iqbal did not change the longstanding rule that courts must still draw every reasonable inference in the plaintiffs favor when considering a motion to dismiss. See Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1 st Cir. 2009). Qualified immunity should not be granted at the motion to dismiss stage where the defense relies on arguments "inconsistent with the factual allegations of the complaint," which must be taken as true. See Maldonado v. Fontanes, 568 F.3d 263, 271 (1 st Cir. 2009). Each count of the Complaint easily meets this standard. I. PLAINTIFF STATES A CLAIM FOR FALSE ARREST An arrest must be supported by probable cause. Beck v. Ohio, 379 U.S. 89, 91 (l964). An arrest without probable cause violates the Fourth Amendment protection against unreasonable seizures. Santiago v. Fenton, 891 F.2d 373,388 (lst Cir. 1989). Probable cause exists if "the facts and circumstances within the police officers' knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent [person1in believing that the
defendant had committed or was committing an offense." Rivera v. Murphy, 979 F.2d 259, 263 (l st Cir. 1992).
In this case, there was no probable cause to believe that Mr. Glik had violated the
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Massachusetts wiretap statute, M.G.L. ch. 272 § 99. 1 By its plain terms, the statute prohibits only secret audio recording. The statute makes it a crime to "secretly hear [or] secretly record ... the contents of any wire or oral communication." M.G.L. ch. 272 § 99(B)(4)(emphasis added). The statute further requires that such secret hearing or recording be done "willfully." Jd. at (C)(1).
In 2001, the Massachusetts Supreme Judicial Court confinned that the lanh'Uage of the statute means what it says. Commonwealth v. Hyde, 434 Mass. 594 (2001). The court affirmed that the statute prohibited "secret electronic recording" and made no exception for surreptitious recording of police officers. Id. at 595 (emphasis added). In upholding Michael Hyde's conviction for secretly recording his conversation with the police during a traffic stop, the court stated that "the problem here could have been avoided if ... the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight." Id. at 605 (emphasis added). As the court explained, "[h]ad he done so, his recording would not have been secret, and so would not have violated G.L. c. 272 § 99." Id.
In this case, Simon Glik did exactly what the Hyde Court said was permitted: he held his recording device in plain sight. There was nothing secret about the recording. The police officers admitted that the recording was done openly and publicly. AC ~ 30. Under the circumstances, there was no probable cause to believe that Mr. Glik had "secretly" recorded the officers.
Nor was there probable cause to believe that Mr. Glik had "willfully" committed an interception, another element of the crime. M.G.L. c. 272 § 99(C)(l); see Commonwealth v. Ennis, 439 Mass. 64, 68-69 (2003) (offense requires that recording be done secretly and "willfully"). The fact that Mr. Glik was holding the recording device in plain view, on a busy
1 Defendants do not argue that there was probable cause to arrest Mr. Glik for any other crime.
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public sidewalk - along Boston Common, a quintessentially public place -, and that he readily acknowledged that he was recording sound when asked, negate probable cause to believe that he willfully made a secret recording of any of the otlicers' communications. See Ennis, 439 Mass. at 69-70 (party making recording did not act willfully, and thus did not violate the statute, where there was no evidence of intent to conceal the fact that the call was being recorded; "Certainly the department did not 'secretly record' any part of the resulting conversation willfully.").
There is no merit to Defendants' argument that the recording was "secret" because the "audio recording of the officers was done without their knowledge." Defs. Mem. at 12. The officers' claimed subjective knowledge is irrelevant. By holding the recording device in plain view, Mr. Glik did not act secretly (much less willfully so). After Hyde, a majority of the justices of the SJC confinned that whether a recording is secret does not depend on the subjective awareness of the party being recorded. In Commonwealth v. Rivera, 445 Mass. 119 (2005), four members of the court, including Justice Greaney, the author of Hyde, separately concurred to clarifY that a store surveillance camera in plain view of anyone in the store does not violate the statute even though it records sound as well as images. See id. at 134 (Cowin, J.) (concurring) ("That the defendant did not know the camera also included an audio component does not convert this otherwise open recording into the type of 'secret' interception prohibited by the Massachusetts wiretap statute."); id. at 142 (Cordy, J.) (concurring, joined by Greaney and Ireland, n.) ("Just because a robber with a gun may not realize that the surveillance camera pointed directly at him is recording both his image and his voice does not, in my view, make the
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recording a 'secret' one within the meaning and intent of the statute.")? Defendants' interpretation of the statute would lead to absurd results. If subjective
knowledge were required, then a news crew using a ten-foot boom microphone to record sound at a public event such as a tire would be committing a felony merely because one of the firefighters had his or her back turned to the microphone. Under Defendants' view, unless every firefighter on the scene and all passersby saw the microphone, the news crew would be subject to arrest for illegal wiretapping. Such a sweeping restriction on the right of the media and the public at large violates First Amendment.] See Section II, in/i-a.
Even assuming, arguendo, that the subjective knowledge of the party being recorded was required to avoid violating the statue, this would not provide grounds to grant Defendants' motion to dismiss. The Complaint does not concede that the Defendants lacked knowledge that Plaintiff was recording sound, or that Defendants believed that Plaintiff was "simply taking pictures." Defs. Mem. at 12. On the contrary, the fact that one of the officers immediately asked Mr. Glik ifhis phone recorded audio after learning that Mr. Glik was recording implies that he was well aware that cell phones had this capability. That the officers' question about audio was in response to Mr. Glik's statement about what he had seen - "1 am recording this. I saw you punch him," AC ~ 17 - strengthens the implication.4
Besides being inappropriate on a motion to dismiss, Defendants' allegation that the audio
2 The three remaining justices joined only the Court's only main opinion, which disposed of the case on another ground and did not address whether the audio recording was lawful. Jd. at 123. 3 The general public's right to gather infonnation is coextensive with that of the media. See, e.g.. Smith v. City oj' Cumming, 212 F.3d 1332,1333 (lIth Cir. 2000). 41fas Defendants argue the statute turns on police officers' subjective knowledge of the reeording, then police have "a strong incentive to deny knowledge of a recording when an instance ofpoIice misconduct occurred.~' Lisa A. Skehill, Note: Cloaking Police Misconduct in Privacy: Why Ihe Massachusetts Anti-Wiretapping Stalule Should Allowfor the Surreptitious Recording afPolice Officers, 43 Suffolk U. L. Rev. 981, 1012 (2009)
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recording function ofMr. Glik's cell phone was "clandestine" or not "readily-discernable" is
meritless. Defendants acknowledge that "[cJell phones primarily transmit oral communications."
Defs. Mem. at 12-13. Openly holding up a machine that transmits oral communications is no
different, for purposes of the state wiretap law, than openly holding up a machine that records.
The statute prohibits secret "hearing" as well as secret recording. M.G.L. ch. 272 § 99(B)(3)-(4).
At any rate, the Court may take judicial notice that by October 2007, cell phone video and
audio recordings were commonplace. See, e.g., Requa v. Kent Sch. Dist. No. 415, 492 F.Supp.2d
1272,1274 (W.D. Wash. 2007) (noting with regard to audiovisual footage of unknown origin
taken in 2006 that "[gJiven the state of technology, the images could have been captured on a
small, handheld video recorder or even a cell phone,,)5 Well before October 2007, audiovisual
recordings made from cell phones had gained international attention and helped to document significant world and national events.6 In January 2007, an unauthorized cell phone recording of
Saddam Hussein's execution, which contained both sound and video, generated international
controversy.7 In November 2006, the FBI investigated the Los Angeles police after a cell phone
recording capturing the police punching a suspect in the face as he cried "Let go of me! I can't breathe! I can't breathe!" was posted on YouTube.8 Given the ubiquity of cell phones with video
5 See also, e.g., Torres v. McDonald, 2009 U.S. Dist. LEXIS 109610, at *75 (E.D. Cal. Nov. 24, 2009) (describing 2005 investigation in which "[plolice were able to obtain infonnation from Lawrence's cell phone which consisted of photographs, sound bites, and videos of Lawrence hanging out with other [gang] members"). 6 See, e.g., David Bauder, "Cell-Phone Videos Transfom1ing TV News," Washington Post, Jan. 7, 2007 (available at http://www.washingtonpost.com/wp-dyn/content/article/2007/01/07/AR2007010700473.html); Katie Couric, "Smile, You're on the Phone," Couric & Co. blog on cbsnews.com, Feb. 22, 2007 (available at www.cbsnews.com/8301500803_162-2506240-500803 .html). All web addresses cited herein were last visited on May 14, 20 IO. 7 See John Burns and James Glanz, "Iraq to Review Hussein's Execution," New York Times, Jan. 3, 2007 (available at www.nytimes.com/2007/01/03/worldimiddleeast/03 iraq.html?_F 1). 8 Sonya Geis and Hamil R. Han'is, "Beating of L.A. Suspect Sparks Outcry," Washington Post, Nov. 11,2006 (available at Iwww.washingtonpost.com/wp-dyn/content/article/2006/111l0/AR2006111001666.html); "Police beating video from L.A. demonstrates the power of YouTube again," USA Today, Nov. 10,2006 (available at http://www.usatoday.com/news/nation/2006-11-10-lapd-alTest_x.htm).
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and sound recording capabilities in 2007, there is no serious argument that the audio recording device in such phones was "concealed." Defs. Mem. at 12.9
Because Mr. Glik's audio recording was not secret, there was no probable cause to arrest him for illegal wiretapping. The Complaint thus states a claim for false arrest.
n. PLAINTIFF STATES A FIRST AMENDMENT CLAIM
The Complaint states a claim that Defendants violated Mr. Glik's First Amendment rights. By arresting him, Defendants stopped Mr. Glik from being able to make an audiovisual recording of police conduct while he stood in the Boston Common and openly recorded their use offorce. The arrest was a direct interference with Mr. Glik's right to observe and document the conduct oflaw enforcement officers carrying out their duties in a public place.
Plaintiff "had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct." Smith v. City a/Cumming, 212 F.3d 1332, 1333 (11 th Cir. 2000). The right to record police activity stems from a long line of cases holding "[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically. a right to record matters of public interest." Id. (collecting cases). That this right, like all First Amendment rights, is subject to reasonable restrictions does not mean there is no constitutional right in specific circumstances.
Numerous courts, including the First Circuit and the District of Massachusetts, have recognized the right to record matters of public interest. See, e.g., Iacobucci v. Boulter, 193 F.3d 14, 25 & n. 6 (l st Cir. 1999) (filming a conversation in a public area of a public building "was
9 At a minimum, Defendants' assertion of ignorance raises many factual questions, inappropriate for resolution at this stage, concerning their knowledge of and experience with cell phones as well as what a reasonable police officer in 2007 would have understood about cell phones' recording capabilities.
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done in the exercise of [Plaintiffs] First Amendment rights"); Fordyce v. City ofSeattle, 55 F.3d 436, 439 (9th Cir. 1995); (recognizing "First Amendment right to film matters of public interest"); Demarest v. Athol/Orange Cmty. Television Inc., 188 F. Supp. 2d 82, 94 (D.Mass. 2002) ("At base, plaintiffs had a constitutionally protected right to record matters of public interest.");Alliance to End Repression v. City o/Chicago, 2000 U.S. Dist. LEXIS 6342, at *63 (N.D. IlL May 8, 2000) (right to take photographs of police is protected by the First Amendment); Connell v. Hudson, 733 F. Supp. 465, 470-471 (D.N.H. 1990) ("According to principles ofjurisprudence long respected in this nation, Chief Brackett could not lawfully interfere with Nick Connell's picture-taking activities unless Connell unreasonably interfered with police and emergency functions."); Lambert v. Polk County, 723 F.Supp. 128, 133 (S.D. Iowa 1989) ("It is not just news organizations... who have First Amendment rights to make and display videotapes of events - all of us ... have that right."); ChannellO, Inc. v. Gunnarson, 337 F.Supp. 634, 638 (D.Minn. 1972) (recognizing "constitutional right to have access to and to make use of the public streets, roads and highways ... for the purpose of observing and recording in writing and photographically the events which occur therein").
As Iacobucci, Demarest, Smith, Fordyce, and Lambert demonstrate, videotape is no different from still cameras for First Amendment purposes. In Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Penn. 2005), the plaintiff sued after being arrested for videotaping state troopers' actions in public. Robinson stood on property where he had a right to be and he did not interfere with the troopers' work. Id. at 539. The court held that
[v]ideotaping is a legitimate means of gathering information for public dissemination and ean often provide cogent evidence ... In sum, there can be no doubt that the free speech clause of the Constitution protected Robinson as he videotaped the defendants ....
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Id. at 541. Nothing in the above opinions recognizing a broad right to record matters of public
interest suggests that this right includes only pictures, not sound. The First Amendment right does not change with the addition of audio to video recording. Silent movies have been gone for decades. Sound recording has long been a standard feature of video cameras, and was a feature of the video cameras in cases cited above. See, e.g., Iacobucci, 193 F.3d at 18, 24; Demarest, 188 F. Supp. 2d at 86; Fordyce, 55 F.3d at 439.
The cases cited by Defendants do not stand for the proposition that no constitutional right exists to document police conduct in public. Defs. Mem. at 5. Neither Gouin v. Gouin, 249 F. Supp. 62, 79 (D. Mass. 2003), nor Jean v. Mass. State Police, 492 F.3d 24, 33 (2007), addressed whether there is a First Amendment right to photograph or videotape police conduct, and nothing in either case suggests that there is not. Nor does Hyde address whether there is a First Amendment right to openly record police activity.
The fact that courts do not recognize an unfettered right to record the police is uncontested and irrelevant. All First Amendment rights are "fettered." As the cases described above demonstrate, there is a First Amendment right to record the police carrying out their duties in public places where the person recording is not interfering with the police, is allowed to be in the public place, and is making the recording openly - the very facts of this case.
m. DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY
In evaluating an assertion of qualified immunity on a motion to dismiss, the Court considers "(1) whether plaintiffs allegations, taken as true, establish the violation of a
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constitutional right, and (2) whether the constitutional right was clearly established at the time of
the challenged conduct." Sanchezv. Pereira-Castillo, 590 F.3d 31,52 (lst Cir. 2009).10 Under
the second prong, "the salient question is whether the state of the law at the time of the alleged
violation gave the defendant fair warning that his particular conduct was unconstitutional." Jd. In
the First Circuit, the inquiry on whether an officer had fair warning "encompasses not only
Supreme Court precedent, hut all available case law," Suboh v. Dist. Attorney's o.tJice, 298 F.3d
81, 93 (1 st Cir. 2002), including district court and appellate court opinions from elsewhere in the
country. See Hatch v. Dep't/or Children, 274 F.3d 12,24 (1 st Cir. 2001). As discussed in Sections I and II, supra, Plaintiff has alleged violations of his First and
Fourth Amendment rights. Because Defendants had fair notice that they were violating these
rights when they arrested Plaintiff for recording them on October 1, 2007, they are not entitled to
qualified immunity.
A. Qualified immunity is not warranted for Mr. Glik's false arrest claim
No reasonable officer could have believed, under the circumstances alleged in the Complaint, that probable cause existed to arrest Mr. Glik for illegal wiretapping. I I It was clearly
established by 2007 that holding a recording device in plain view did not violate the
10 Although Pearson v. Callahan, 129 S.C!. 808 (2009) makes optional the requirement, under Saucier v. Katz, 533 U.S. 194 (2001), that the court first determine if the facts alleged establish a constitutional violation, in this case the sequential approach is warranted for several reasons. First, the defendants have moved to dismiss for failure to state a cognizable claim. Second, the public interest is best served by deciding the questions at issue here, where the public increasingly documents police conduct in public places by means of cell phones that record audio as well as video and the right to do so is fundamental to a free society. As the Pearson majority noted, deciding whether a constitutional violation has been pleaded serves to promote "the development of constitutional precedent" and "is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable." ld at 821; see also Limone v. Condon, 372 F.3d 39, 44 (l st Cir. 2004) ("[P]roper development of the law of qualified immunity is advanced if courts treat these []questions sequentially."). II Defendants do not argue, nor do the allegations permit a finding, that there was probable cause to arrest Plaintiff for the other crimes he was charged with or for any other crimes.
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Massachusetts wiretapping statute. Mr. Glik had a clearly established right to be free from arrest without probable cause.
Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992). To ensure that this right is not violated, reasonable police officers must know the law. See Hall v. Ochs, 817 F.2d 920, 924 (l s[ Cir. 1987). This includes criminal statutes as well as decisional law interpreting those statutes. See, e.g., Sheehy v. Town ofPlymouth, 191 F.3d 15, 22 (1 st Cir. 1999) (examining disorderly person statute as interpreted by Massachusetts courts to determine whether arrest was reasonable).
In Iacobucci, the First Circuit held that a reasonable police officer would have been aware of the caselaw regarding disorderly conduct as well as the statutory language of the state's open meeting law. Iacobucci, 193 F.3d at 24-25. The Court denied qualified immunity because in light of these authorities, Plaintiffs "constitutional right to act as he did without being arrested for disorderly conduct was suffi.ciently clear that a reasonable official would [have understood] that what he [was] doing violate[d] that right." Id. at 24.
Here, a reasonable police officer would have understood that the state wiretap statute prohibited only the secret recording of communications and that the SJC in Hyde had stated that holding a recording device in plain view negated secrecy. A reasonable police officer would have understood that arresting Mr. Glik for openly recording an arrest on Boston Common was unlawful. l2 The opinion of the Boston Municipal Court in Mr. Glik's case, which easily
12 Nor could a police officer have reasonably believed, as Defendants suggest, that the statute required consent irrespective oftbeir knowledge oftbe recording. Defs. Mem. at 14. The language ofthe wiretap statute plainly requires "prior authority" ofthe parties being recorded only when the person listening or recording does so "secretly." M.G.L. ch. 272 § 99 (B)(4). As Hyde makes clear, knowledge, irrespective of consent, negates the element of secrecy. Further, any belief that consent was required for open recording in public would be unreasonable in light of the clearly established First Amendment right to engage in such recording. See cases cited in Section II, supra, especially the 2002 Demarest case, which struck down a requirement that public cable access television producers obtain signed consent forms before airing voice or image recordings of any person, regardless of the
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concluded that there was no probable cause to believe Mr. Glik had made a secret recording under the wiretap statute, further supports the conclusion that the law was clearly established at the time ofMr. Glik's arrest. See Commonwealth v. Glik, No. 0701 CR 6687 (Boston Mun. Ct. Jan. 31, 2008) (attached hereto as Ex. 1).
B. Qualified immunity is not warranted for Mr. Glik's First Amendment claim 1. The right to openly record police activity in public was clearly established
As discussed above, the facts of the Complaint establish a violation of First Amendment rights. These rights were clearly established at the time of Mr. Glik's arrest, as shown by the extensive case law from across the country, including from the First Circuit and the District of Massachusetts. These cases provided ample notice to police officers that audiovisual recording of their conduct in public places, done openly and in a mauner that does not interfere with police activity, is protected by the First Amendment.
Defendants rely on three district conrt cases, two from Peillsylvania, to argue that the right to record police officers carrying out their official duties was not clearly established. Defs. Mem. at 9-10. None of these cases supports such a finding here.
Both Kelly v. Borough o(Carlisle, 2009 u.s. Dist. LEXIS 37618 (M.D. Pa. May 4,
2009), currently on appeal to the Third Circuit, and Matheny v. County ofAllegheny, 2010 U.S. Dis!. LEXIS 24189 (W.D. Pa. Mar. 16, 2010), relied primarily on the lack of direct Supreme Court and Third Circuit authority in concluding that there was no clearly established First Amendment right to record the police. Though both conrts cited limited authority outside the
circumstances. 188 F. Supp. 2d at 94. The court found the restriction violated the First Amendment by placing "a suffocatingly impracticable burden on electronic news gathering" including recordings on city streets. ld
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Third Circuit, they failed to consider virtually any of the substantial body of caselaw cited by Plaintiff in this case. See Section II, supra. This caselaw includes decisions ofthe First Circuit and the District of Massachusetts.
Further, the Matheny court made an arbitrary and unwarranted distinction between audio and video. The court acknowledged that cases had found a right to videotape but stated that this right had not been recognized as extending to audio, relying on a sole 1989 decision. Matheny. 2010 U.S. Dist. LEXIS 24189, at *15 (citing Jones v. Gaydula, 1989 U.S. Dist. LEXIS 15419 (E.D. Pa. Dec. 22, 1989». Jones gave no explanation or supporting authority for its one-sentence declaration that there is "no First Amendment right to tape record statements of an unwilling utterant." Jones. 1989 U.S. Dist. LEXIS 15419. at *6. This statement is at odds with the later rulings in Iacobucci; Fordyce; and Demarest.
The third case relied on by Defendants, Gravolet v. Tassin, 2009 U.S. Dist. LEXIS 45876 (E.D. La. June 2, 2009), is factually different from this case. The plaintiff had been arrested for stalking after repeatedly following a female police officer and videotaping her at a traffic stop. In granting qualified immunity for an arrest without probable cause, the court held that there was a reasonable basis to arrest the plaintiff under the stalking statute. The use of a video camera did not immunize the plaintiff from a stalking charge. Moreover, the court concluded only that there was no "clearly established right to videotape police officers ... 'under these circumstances '." Id.
at *13. (emphasis added).
In this case, no reasonable officer could have believed that a person standing along the Common and holding up a cell phone lacked a First Amendment right to transmit or record the sights and sounds obvious to all present.
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IV. PLAINTIFF STATES A CLAIM UNDER THE MASSACHUSETTS CIVIL RIGHTS ACT To prevail under the Massachusetts Civil Rights Act, M.O.L. ch. 12, §§ 11H and III, a
plaintiff must show that "( 1) [hisJexercise or enjoyment of rights secured by the Constitution or
laws of either the United States or of the Commonwealth, (2) have heen interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by threats, intimidation, or coercion." Davis v. Rennie, 264 F.3d 86, 111 (l st Cir. 2001).
The Complaint alleges that Defendants interfered with Plaintifl's First Amendment right to record and display video of police officers making an arrest in public. Assuming the Court finds Plaintiff has stated a First Amendment claim, this satisfies the first and second prongs of the MCRA inquiry. The Complaint alleges that Defendants interfered with Plaintifl's First Amendment rights by the "intrinsically coercive" and intimidating act of arresting him. Sarvis v. Boston Safe Dep. & Trust Co., 47 Mass. App. Ct. 86, 92-93 (Mass. App. Ct. 1999). This satisfies the third prong. See id; Batchelder v. Allied Stores Corp., 393 Mass. 819,823 (1985); Reprod Rights Networkv. President ofthe Univ. ofMass. , 45 Mass. App. Ct. 495,508 (1998). V. PLAINTIFF STATES A CLAIM FOR MALICIOUS PROSECUTION
Under Massachusetts law, malicious prosecution requires "1) that the defendant initiated a criminal action against him; 2) that the criminal prosecution ended in [the plaintiffs] favor; 3) that there was no probable cause to initiate the criminal charge; and 4) that the defendant acted maliciously." Santiago v. Fenton, 891 F.2d 373, 387 (1s1. Cir. 1989).
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Defendants do not dispute that they initiated a criminal action against Mr. Glik or that it terminated in his favor. The issues are whether there was probable cause and whether Defendants acted maliciously.
There was no probable cause for any of the charges. As discussed in Section I, supra, there was no probable cause to charge Plaintiff with violating the wiretapping statute. As to aiding the escape of a prisoner, the Complaint alleges that the suspect did not escape from the police, that Mr. Glik did not help him try to escape, and that Mr. Glik stood at a distance and did not interfere with the officers' actions. AC ~'\120, 16. The Commonwealth dismissed this charge for lack of probable cause. AC '\129. As to disturbing the peace, the Complaint alleges that Mr. Glik did not breach the peace, AC '\121, and that the Boston Municipal Court dismissed this charge for lack of probable cause. Nothing in the Complaint supports Defendants' contention that "the facts, as alleged by Plaintiff' show that he "attempt[ed] to interfere with their efforts to arrest a suspect," Defs. Mem. at 17, or that any officer could have reasonably believed that Plaintiff acted in a disorderly manner or aided in an escape.
The element of malice may be inferred from the lack of probable cause. See, e.g.. Chervin v. Travelers Ins. Co., 448 Mass. 95, 109 (Mass. 2006). Malice exists when police officers make an arrest to cover np an officer's misconduct. Santiago, 891 F.2d at 388.
The Complaint alleges that Defendants initiated a baseless criminal prosecution against Mr. Glik to punish him for exercising his First Amendment rights and to deter him and others fTOm doing so again. The Complaint also alleges that the officers arrested Mr. G1ik after he said he saw them punch a suspect, words that could be construed as implying a belief that the officers
17

Case 1:10-cv-10150-LTS Document 17 Filed 05/14/10 Page 18 of 21
had committed misconduct. These allegations are more than sufficient to survive a Rule 12(b)(6) motion. See Gouin, 249 F. Supp. 2d at 72 (maliee is a question offact). VI. PLAINTIFF STATES A MONELL CLAIM AGAINST THE CITY OF BOSTON
In Monell v. Dep 'f ofSocial Servs., 436 U.S. 658 (1978), the Supreme Court held that municipalities could be sued under Section 1983 if a "policy or custom" of the municipality caused a constitutional deprivation. Id. at 694. The municipal policy or custom must be the "moving force" behind the constitutional deprivation. City o.fCanfon Ohio v. Harris, 489 U.S. 378,385 (1989).
The qualified immunity defense does not apply to municipalities. Owen v. City of Independence, Mo., 445 U.S. 622 (1980). Even ifthis Court were to find the individual police officer Defendants are protected by qualified immunity, the COUIt must still analyze the City's liability.l3 When the Supreme Court abandoned the requirement in Saucier that a court must first decide if a constitutional right was violated when analyzing qualified immunity in §1983 damages cases, the Court did so in part because it was confident this would not impede development of the law. Pearson found that the constitutional issues could be presented in "criminal cases and § 1983 cases against a municipality" as well as in injunctive cases. Pearson v. Callahan, 129 S. Ct. 808, 821-22 (2009). Ifmunicipalities could not be liable when the law is
13 In Joyce v. Town of Tewksbury, 112 F.3d 19,23 (lst Cir. 1997), the First Circuit recognized that a City may be liable for a civil rights violation even though the individual defendants are entitled to qualified immunity. Joyce does not stand for the proposition that a municipal failure to train claim must fail whenever an individual officer may have held a mistaken but reasonable view of the law. Joyce involved a truly novel Fourth Amendment issue. The failure to train allegation in this case concerns an interpretation of a state criminal statute by the state's highest court. The City's failure to provide any guidance to its officers as to how to apply a statute they regularly enforced suggests a deliberate indifference to whether they were enforcing it correctly. See, e.g., Lischner v. Upper Darby Twp., 2007 U.S. Dis!. LEXIS 7913, at *49 (E.D. Pa. Feb. 5,2007) (allowing claim against township to proceed where failure to train officers on defiant trespass statute could have amounted to deliberate indifference in the face oflikely constitutional violations, despite granting officer qualified immunity for mistaken application of statute).
18

Case 1:10-cv-10150-LTS Document 17 Filed 05/14/10 Page 19 of 21
not "clearly established," the development of constitutional law would be stymied. In City ofCanton, the Court held that a policy of failing to properly train police officers
will support § 1983 liability "where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." 489 U.S. at 389. The Court held a city may be liable for failing to train police officers if the failure is "so likely to result in the violation of constitutional rights" that the policymakers of the city are deliberately indifferent to the need. As an illustration of the standard the court said if a city armed police officers but did not train those police offi.cers on the constitutional limits on the use of deadly force the need would be so obvious that failure to train would be deliberately indifferent. Id. at 390 n.1 O. This is similar to the claim alleged here.
A failure to train claim does not require a pattern of constitutional violations when that result is "a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations." Id. at 390; Swain v. Spinney, 117 F.3d 1, II (I st Cir. 1997). A complete failure to train which causes a constitutional deprivation can support a municipal liability claim. See Young v. City ofProvidence, 404 F.3d. 4, 28 (1 sl Cir. 2005) (failure to train on possible misidentification of off-duty officers responding to an incident, especially minority officers, may go to the jury even without evidence of prior incidents).
Simon Glik alleges the City failed to train its officers that only secret audio recordings of a police officer are unlawful under the wiretap statute and as a result of this failure, it was highly likely that Boston police officers would unconstitutionally arrest people for openly recording police conduct. Police officers should be knowledgeable of the elements of criminal laws generally; it is particularly important that police officer understand the right of a police officer to
19

Case 1:10-cv-10150-LTS Document 17 Filed 05/14/10 Page 20 of 21

arrest a person for a crime against the police officer. If the City did not train or instruct its police

officers that the statute permitting them to arrest a person for recording their voice is limited, it

was highly likely that police officers would arrest people for openly recording them in the course of their work just as they have regularly arrested people for secret recording. 14 Unlawfully

arresting a person for openly recording police conduct deprives the person of his liberty, a serious

harm. These arrests also foster a lack of trust in the community because it looks like the police

officers fear public knowledge of the officers' public conduct.

CONCLUSION

For the foregoing reasons, the Court should deny Defendants' motion in its entirety.

RESPECTFULLY SUBMITTED, For the Plaintiff, By his attorneys,

/s/ David Milton David Milton, BBO #668908 Law Offices of Howard Friedman PC 90 Canal Street, Fifth Floor Boston, MA 02114-2022 (617) 742-4100 dmilton@civil-rights-Iaw.com

Dated: May 14,2010

/s/ Sarah Wunsch Sarah Wunsch, BBO # 548767 American Civil Liberties Union of Massachusetts 211 Congress Street, 3rd floor Boston, MA 02110 (617)482-3170, ext. 323 swunsch@aclum.org

14 Arrests for secretly recording police officers are common in states that prohibit secret recording. See Skehill, supra note 4, at 986 n.40.
20

Case 1:10-cv-10150-LTS Document 17 Filed 05/14/10 Page 21 of 21

Certificate of Service I certify that on this day a true copy of the above document was served upon the attorney of record for each party via ECF.

Date: May 14,2010

lsi David Milton
David Milton

21

 
 Case 1:10-cv-10150-LTS Document 34 Filed 10/27/10 Page 1 of 2
. ..........,.

United States Court of Appeals
For the First Circuit

No. 10-1764

SIMON GLIK, Plaintiff, Appelleet
v.
JOHN CUNNIFFE, in his individual capacity, et aI., Defendants, Appellants.

Torruella, Lipez and Thompson, Circuit· Judges.

ORDER OF COURT
Entered: August 4,2010
Defendants-appellants, the City ofBoston and three individual Boston police officers, have filed a motion to stay the district court proceedings pending the resolution ofthe defendants' appeal from the district courts' denial of their motion to dismiss on grounds that included qualified immunity. The district court denied their stay request. Plaintiff-appellee opposes the motion only insofar as it seeks a stay of proceedings against defendant City of Boston.
"In Mitchell v. Forsyth, 472 U.S. 5] 1 (l985)~ the Supreme Court ruled that a defendant denied qualified immunity by a district court could file an interlocutory appeal to obtain review of any disputed question of law." Rivera-Torres v. Ortiz Velez, 341 F.3d 86t 93 (1 st Cir. 2003). While a Forsyth appeal is pending, proceedings as to those aspects of the case involved in the appeal shall be stayed unless the defendants had frivolously appealed or taken an interlocutory appeal from a non-appea]abJe order. See id.; see also Hegarty v. Somerset County, 25 F3d 17, 18 (1 st Cir. 1994) (holding that appellant's motion for stay of discovery pending a Forsyth appeal should be granted so long as the appeal is non-frivolous).
In the absence of a frivolousness determination by the district court, and given plaintiffappelleets non-opposition~ defendants-appellants' motion for a stay of proceedings with respect to the individual police officer defendants is granted. We leave in effect, however, the district court's

Case 1:10-cv-10150-LTS Document 34 Filed 10/27/10 Page 2 of 2
denia1 of a stay with respect to the proceedings against the City of Boston. This order is without prejudice to the parties filing in the district court motions in favor of or in opposition to a partial or complete stay ofproceedings against the City ofBoston pending this appeal, and without prejudice
to the plaintiff-appellee moving to lift the stay of proceedings against the individual defendants on
the ground that the transcript of the hearing on the motion to dismiss (once produced) reveals that the appeal is frivolous.
So ordered. By the Court: /s/ Margaret Carter. Clerk.
cc: Howard Friedman David Milton Sarah R. Wunsch Lisa A. Skehill
Ian D. Prior

 
 Case 1:10-cv-10150-LTS Document 66 Filed 03/29/12 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 10-10150-LTS

__________________________________________

)

SIMON GLIK,

)

Plaintiff,

)

)

v.

)

)

JOHN CUNNIFFE, PETER J. SAVALIS and )

(FNU) HALL-BREWSTER, in their individual )

capacities, and the CITY OF BOSTON,

)

Defendants.

)

__________________________________________)

ALL PARTIES’ JOINT STIPULATION OF DISMISSAL OF ALL CLAIMS WITH PREJUDICE

All parties in the above-entitled action hereby jointly stipulate pursuant to Fed. R. Civ. P. 41(a)(1)(ii) to dismiss all counts an d claims as they relate to al l Defendants, the City of Boston, John Cunniffe, Peter J. Savalis, and Jerom e Hall-Brewster, in their indi vidual and official capacities, with prejudice, without costs and waiving all rights of appeal.

Respectfully submitted,

DEFENDANT, CITY OF BOSTON

By its attorney:

By

William F. Sinnott

Respectf

ully submitted, PLAINTIFF, SIMON GLIK
his attorneys:

/s/ Lisa Skehill Maki

/s/

Lisa Skehill Maki, BBO No. 675344

Assistant Corporation Counsel

City of Boston Law Department

One City Hall Plaza, Suite 615

Boston, MA 02116

(617)

(617) 635-4022

David Milton

David

Milton, BBO No. 668908

Howard Friedman, BBO No. 180080

90 Canal Street, 5th Floor

Boston, MA 02114

742-4100

/s/ Sarah Wunsch Sarah Wunsch, BBO No. 548767 ACLU of Massachusetts 211 Congress Street, 3d Floor Boston, MA 02110 617-482-3170

Case 1:10-cv-10150-LTS Document 66 Filed 03/29/12 Page 2 of 2

Respectfully submitted,

Respectf

DEFENDANT, PETER J. SAVALIS

and JEROME HALL-BREWSTER

By their attorney,

ully submitted, DEFENDANTS, JOHN CUNNIFFE By his attorney,

/s/ Hugh R. Curran

Hugh R. Curran, BBO #552623

Bletzer & Bletzer, P.C.

300 Market Street

Brighton, MA 02135

617-254-8900

401-331-6300

/s/ Ian D. Prior Ian D. Prior, BBO # 655704
Chisholm Chisholm & Kilpatrick LLP One Turks Head Place, Suite 1313 Providence, RI 02903

Date: March 29, 2012

CERTIFICATE OF SERVICE

I, Lisa Skehill Maki, do hereby certify that I filed a true copy of the attached documents via the CM/ ECF system on March 29, 2012.

/s/ Lisa Skehill Maki Lisa Skehill Maki

2

 
 Case: 1:10-cv-10150 As of: 09/09/2012 11:08 AM EDT 1 of 9
CLOSED,CONSENT
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:10−cv−10150−LTS

Glik v. Cunniffe et al Assigned to: Ch. Magistrate Judge Leo T. Sorokin related Case: 1:11−cv−11235−DPW
Case in other court: First Circuit, 10−01764 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/01/2010 Date Terminated: 03/06/2012 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Simon Glik

represented by Howard Friedman Law Offices of Howard Friedman, P.C. 90 Canal Street 5th Floor Boston, MA 02114−2022 617−742−4100 Fax: 617−742−5858 Email: hfriedman@civil−rights−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Milton Law Offices of Howard Friedman 90 Canal Street 5th Floor Boston, MA 02114−2022 617−742−4100 Fax: 617−742−5858 Email: dmilton@civil−rights−law.com ATTORNEY TO BE NOTICED

Sarah R. Wunsch ACLU of Massachusetts 3rd Floor 211 Congress Street Boston, MA 02110 617−482−3170 Fax: 617−451−0009 Email: swunsch@aclum.org ATTORNEY TO BE NOTICED

V.
Defendant
John Cunniffe in his individual capacity

represented by Lisa Skehill Maki City Of Boston Law Department One City Hall Plaza Room 615 Boston, MA 02201 617−635−4022 Email: lisa.maki@cityofboston.gov TERMINATED: 02/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raquel D. Ruano Attorney Raquel D. Ruano 373 South Huntington Avenue Suite 200 Boston, MA 02130

Case: 1:10-cv-10150 As of: 09/09/2012 11:08 AM EDT 2 of 9

617−963−9909 Email: attorneyruano@gmail.com TERMINATED: 02/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ian D. Prior City Of Boston Law Department One City Hall Plaza Room 615 Boston, MA 02201 617−635−4017 Fax: 617−635−3199 Email: iprior1177@gmail.com ATTORNEY TO BE NOTICED

Defendant
Peter J. Savalis in his individual capacity

represented by Lisa Skehill Maki (See above for address) TERMINATED: 02/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raquel D. Ruano (See above for address) TERMINATED: 02/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hugh R. Curran Bletzer and Bletzer, PC 300 Market Street Brighton, MA 02135 617−254−8900 Fax: 617−254−5522 Email: hcurran@bletzerlaw.com ATTORNEY TO BE NOTICED

Ian D. Prior (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jerome Hall−Brewster in his/her individual capactiy

represented by Lisa Skehill Maki (See above for address) TERMINATED: 02/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raquel D. Ruano (See above for address) TERMINATED: 02/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hugh R. Curran (See above for address) ATTORNEY TO BE NOTICED

Ian D. Prior (See above for address) ATTORNEY TO BE NOTICED

Case: 1:10-cv-10150 As of: 09/09/2012 11:08 AM EDT 3 of 9

Defendant City of Boston

represented by Ian D. Prior (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Skehill Maki (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raquel D. Ruano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Pro Se Party Richard Max Strahan

represented by Richard Max Strahan POB 383408 Cambridge, MA 617−233−3854 Email: esistoo@yahoo.com PRO SE

Mediator
Judith Gail Dein TERMINATED: 03/05/2012

Mediator
Judith G. Dein TERMINATED: 03/05/2012

Date Filed 02/01/2010 02/01/2010
02/01/2010
02/02/2010 02/02/2010 02/02/2010 02/03/2010

# Docket Text
1 COMPLAINT against all defendants Filing fee: $ 350, receipt number 01010000000002763457, filed by Simon Glik. # 1 Civil Cover Sheet, # 2 Category Sheet)(Friedman, Howard) (Entered: 02/01/2010)
ELECTRONIC NOTICE of Case Assignment. Judge Nancy Gertner assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Leo T. Sorokin (Cummings, Mary) (Entered: 02/01/2010)
2 Summons Issued as to John Cunniffe, Peter J. Savalis, [FNU] Hall−Brewster, City of Boston. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Cummings, Mary) (Entered: 02/01/2010)
3 NOTICE of Appearance by David Milton on behalf of Simon Glik (Milton, David) (Entered: 02/02/2010)
4 Judge Nancy Gertner: ORDER OF RECUSAL entered.(GAM) (Entered: 02/02/2010)
5 NOTICE of Appearance by Sarah R. Wunsch on behalf of Simon Glik (Wunsch, Sarah) (Entered: 02/02/2010)
Case Reassigned to Judge William G. Young. Judge Nancy Gertner no longer assigned to the case. (Cummings, Mary) (Entered: 02/03/2010)

Case: 1:10-cv-10150 As of: 09/09/2012 11:08 AM EDT 4 of 9

02/05/2010 02/11/2010 03/05/2010 03/10/2010 03/10/2010 03/10/2010
03/30/2010 03/31/2010 03/31/2010 04/22/2010 04/22/2010 04/28/2010
04/30/2010 05/04/2010
05/14/2010 06/08/2010

6 AMENDED COMPLAINT against all defendants, filed by Simon Glik.(Friedman, Howard) (Entered: 02/05/2010)
7 NOTICE of Appearance by Ian D. Prior on behalf of City of Boston (Prior, Ian) (Entered: 02/11/2010)
8 NOTICE of Appearance by Lisa A. Skehill on behalf of City of Boston (Skehill, Lisa) (Entered: 03/05/2010)
9 WAIVER OF SERVICE Returned Executed by Simon Glik. City of Boston waiver sent on 2/8/2010, answer due 4/9/2010. (Friedman, Howard) (Entered: 03/10/2010)
10 WAIVER OF SERVICE Returned Executed by Simon Glik. Peter J. Savalis waiver sent on 2/8/2010, answer due 4/9/2010. (Friedman, Howard) (Entered: 03/10/2010)
11 WAIVER OF SERVICE Returned Executed by Simon Glik. John Cunniffe waiver sent on 2/8/2010, answer due 4/9/2010. (Friedman, Howard) (Additional attachment(s) added on 3/19/2010: # 1 Non−Fillable Waiver as to John Cunniffe) (Paine, Matthew). (Entered: 03/10/2010)
12 MOTION for Extension of Time to April 23, 2010 to File Responsive Pleadings by City of Boston, John Cunniffe, Jerome Hall−Brewster, Peter J. Savalis.(Skehill, Lisa) (Entered: 03/30/2010)
Judge William G. Young: ELECTRONIC ORDER entered granting 12 MOTION for Extension of Time to April 23, 2010 to File Responsive Pleadings (Paine, Matthew) (Entered: 03/31/2010)
13 WAIVER OF SERVICE Returned Executed by Simon Glik. Jerome Hall−Brewster waiver sent on 2/8/2010, answer due 4/23/2010. (Friedman, Howard) (Entered: 03/31/2010)
14 MOTION to Dismiss by City of Boston, John Cunniffe, Jerome Hall−Brewster, Peter J. Savalis.(Skehill, Lisa) (Entered: 04/22/2010)
15 MEMORANDUM in Support re 14 MOTION to Dismiss filed by City of Boston, John Cunniffe, Jerome Hall−Brewster, Peter J. Savalis. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Skehill, Lisa) (Entered: 04/22/2010)
ELECTRONIC NOTICE Setting Hearing on Motion 14 MOTION to Dismiss : Motion Hearing set for 6/8/2010 02:00 PM in Courtroom 18 before Judge William G. Young. opposition is due by 5/6/10. Reply brief, if any, is due by 5/13/10(Smith, Bonnie) (Entered: 04/28/2010)
16 Assented to MOTION for Extension of Time to 5/14/10 to File Response/Reply as to 14 MOTION to Dismiss by Simon Glik.(Milton, David) (Entered: 04/30/2010)
Judge William G. Young: ELECTRONIC ORDER entered granting 16 Motion for Extension of Time to File Response/Reply re 16 Assented to MOTION for Extension of Time to 5/14/10 to File Response/Reply as to 14 MOTION to Dismiss Responses due by 5/14/2010 Replies due by 5/21/2010. (Smith, Bonnie) (Entered: 05/04/2010)
17 MEMORANDUM in Opposition re 14 MOTION to Dismiss filed by Simon Glik. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 05/14/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 6/8/2010 re 14 MOTION to Dismiss filed by Jerome Hall−Brewster, John Cunniffe, City of Boston, Peter J. Savalis ;The Court hears argument from the plaintiff and defendants. After hearing the Court rules denying 14 Motion to Dismiss; TheCourt holds a 16.1 conference and sets a schedule.( Final Pretrial Conference set for NO SOONER THAN 5/2/2011 02:00 PM before Judge William G. Young., Jury Trial set for RUNNING TRIAL LIST AS OF 6/6/2011 09:00 AM before Judge William G. Young.).The parties have 2 weeks to file a joint case management proposal. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Plaintiff's Counsel Milton, Freisman,Wunsch, Defendant's Counsel Skehill, Prior) (Smith, Bonnie) (Entered: 06/09/2010)

Case: 1:10-cv-10150 As of: 09/09/2012 11:08 AM EDT 5 of 9

06/18/2010 06/21/2010 06/22/2010 06/22/2010 06/22/2010 06/23/2010
06/23/2010 06/24/2010 06/25/2010 06/28/2010 06/29/2010 06/29/2010 06/29/2010 07/01/2010
07/08/2010 07/08/2010 07/08/2010

18 Assented to MOTION for Extension of Time to July 8, 2010 to Answer Complaint by City of Boston, John Cunniffe, Jerome Hall−Brewster, Peter J. Savalis.(Prior, Ian) (Entered: 06/18/2010)
Judge William G. Young: ELECTRONIC ORDER entered granting 18 Assented to MOTION for Extension of Time to July 8, 2010 to Answer Complaint. (Paine, Matthew) (Entered: 06/21/2010)
19 JOINT STATEMENT of counsel regarding Case Management. (Milton, David) (Entered: 06/22/2010)
20 CERTIFICATION pursuant to Local Rule 16.1 . (Milton, David) (Entered: 06/22/2010)
21 CERTIFICATION pursuant to Local Rule 16.1 . (Prior, Ian) (Entered: 06/22/2010)
22 NOTICE OF APPEAL as to Order on Motion to Dismiss, Motion Hearing, Set Hearings,,,,,,,,, by City of Boston, John Cunniffe, Jerome Hall−Brewster, Peter J. Savalis Fee Status: Y. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov/clerks/transcript.htm MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. Appeal Record due by 7/13/2010. (Skehill, Lisa) (Entered: 06/23/2010)
23 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 22 Notice of Appeal, (Ramos, Jeanette) (Entered: 06/23/2010)
USCA Case Number 10−1764 for 22 Notice of Appeal, filed by Jerome Hall−Brewster, John Cunniffe, City of Boston, Peter J. Savalis. (Ramos, Jeanette) (Entered: 06/24/2010)
Filing fee/payment: $ 455.00, receipt number BST018061 for 22 Notice of Appeal, (Russo, Patricia) (Entered: 06/25/2010)
24 MOTION to Stay District Court Proceedings Pending Appeal by City of Boston, John Cunniffe, Jerome Hall−Brewster, Peter J. Savalis.(Prior, Ian) (Entered: 06/28/2010)
Judge William G. Young: ELECTRONIC ORDER entered denying 24 MOTION to Stay District Court Proceedings Pending Appeal (Paine, Matthew) (Entered: 06/29/2010)
25 CONSENT by all parties to Jurisdiction by US Magistrate Judge by City of Boston, John Cunniffe, Simon Glik, Jerome Hall−Brewster, Peter J. Savalis.. (Paine, Matthew) (Entered: 06/29/2010)
Case Reassigned to Magistrate Judge Leo T. Sorokin. Judge William G. Young no longer assigned to the case. Counsel are directed to the Court's Standing Orders re: Electronic Case Filing. (Paine, Matthew) (Entered: 06/29/2010)
TRANSCRIPT ORDER ACKNOWLEDGMENT FORM received from USCA and addressed to Donald Womack re 22 Notice of Appeal,,, Transcript order form filed in USCA on July 1, 2010. Transcript ordered: 6/8/10 Motion to Dismiss Hearing. Transcript due by 8/30/2010. (Scalfani, Deborah) (Entered: 07/02/2010)
26 ANSWER to 6 Amended Complaint by City of Boston.(Prior, Ian) (Entered: 07/08/2010)
27 ANSWER to 6 Amended Complaint by Jerome Hall−Brewster.(Prior, Ian) (Entered: 07/08/2010)
28 ANSWER to 6 Amended Complaint by Peter J. Savalis.(Prior, Ian) (Entered: 07/08/2010)

Case: 1:10-cv-10150 As of: 09/09/2012 11:08 AM EDT 6 of 9

07/08/2010 07/12/2010
08/10/2010
08/10/2010 08/23/2010 09/08/2010
10/26/2010 10/27/2010 11/23/2010 12/10/2010 12/10/2010 12/10/2010 12/21/2010 12/21/2010

29 ANSWER to 6 Amended Complaint by John Cunniffe.(Prior, Ian) (Entered: 07/08/2010)
Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered. As suggested by the parties, the Court establishes the following dates to govern this litigation: Rule 26(a) disclosures by July 15, 2010, Initial written discovery by September 17, 2010, completion of all discovery by January 14, 2011, summary judgment motions, if any, filed by March 4, 2011 with oppositions by April 1, 2011, and replies, if any, not to exceed five pages, by April 15, 2010. The Court will hold a status conference in this case on January 18, 2011 at 3:00 p.m. In light of the parties' submissions to date, a formal scheduling conference appears unnecessary, however, if the parties believe such a conference, or a status conference generally, to be useful at this time either party may schedule such a conference now by contacting Ms. Simeone. ( Status Conference set for 1/18/2011 03:00 PM in Courtroom 24 before Magistrate Judge Leo T. Sorokin., Discovery to be completed by 1/14/2011., Motions due by 3/4/2011.)(Simeone, Maria) (Entered: 07/12/2010)
30 Transcript of Motion Hearing held on June 8, 2010, before Judge William G. Young. COA Case No. 10−1764. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 8/31/2010. Redacted Transcript Deadline set for 9/10/2010. Release of Transcript Restriction set for 11/8/2010. (Scalfani, Deborah) (Entered: 08/10/2010)
31 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 08/10/2010)
32 STIPULATION Re: Protective Order by City of Boston, John Cunniffe, Jerome Hall−Brewster, Peter J. Savalis. (Attachments: # 1 Exhibit)(Prior, Ian) (Entered: 08/23/2010)
Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered. ALLOWED except that notwithstanding paragraph 6, the parties shall file a motion to seal any documents they wish to file with the Court under seal. re 32 Stipulation filed by Jerome Hall−Brewster, John Cunniffe, City of Boston, Peter J. Savalis (Simeone, Maria) (Entered: 09/08/2010)
33 MOTION to Compel Police Reports by Simon Glik.(Milton, David) (Entered: 10/26/2010)
34 ORDER of USCA as to 22 Notice of Appeal, filed by Jerome Hall−Brewster, John Cunniffe, City of Boston, Peter J. Savalis. See Order for details. Order issued in the USCA 8/4/2010 (Ramos, Jeanette) (Entered: 10/27/2010)
Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered; The Motion to Compel (Dkt#33) is ALLOWED AS UNOPPOSED. re 33 Motion to Compel; (Simeone, Maria) (Entered: 11/23/2010)
35 MOTION to Compel Production of Documents from Defendant City of Boston by Simon Glik.(Milton, David) (Entered: 12/10/2010)
36 MEMORANDUM in Support re 35 MOTION to Compel Production of Documents from Defendant City of Boston filed by Simon Glik. (Milton, David) (Entered: 12/10/2010)
37 DECLARATION re 35 MOTION to Compel Production of Documents from Defendant City of Boston by Simon Glik. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Milton, David) (Entered: 12/10/2010)
38 Opposition re 35 MOTION to Compel Production of Documents from Defendant City of Boston filed by City of Boston. (Prior, Ian) (Entered: 12/21/2010)
39 Amended Opposition re 35 MOTION to Compel Production of Documents from Defendant City of Boston filed by City of Boston. (Prior, Ian) (Entered: 12/21/2010)

Case: 1:10-cv-10150 As of: 09/09/2012 11:08 AM EDT 7 of 9

12/23/2010 12/29/2010
12/29/2010 12/29/2010
01/18/2011
01/24/2011 01/27/2011 08/18/2011 08/29/2011 08/29/2011
09/12/2011 09/21/2011

40 Assented to MOTION for Leave to File a Reply by Simon Glik. (Attachments: # 1 Proposed Reply, # 2 Exhibit to Proposed Reply)(Milton, David) (Entered: 12/23/2010)
Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered ALLOWING the Plaintiff's Assented to Motion for Leave to File a Reply. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Chernetsky, James) (Entered: 12/29/2010)
41 REPLY to Response to 35 MOTION to Compel Production of Documents from Defendant City of Boston filed by Simon Glik. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 12/29/2010)
Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered ALLOWING the Plaintiff's Motion to Compel (Docket # 35). As the City concedes, the suit against it was not stayed by the First Circuit. The City has failed to meet its burden to establish that the investigatory privilege precludes all of the discovery the Plaintiff seeks. The Motion to Compel (docket #35) is ALLOWED and the City shall produce the requested discovery within fourteen days, subject to the terms of this Order. Because the First Circuit has stayed the Plaintiffs case against the individual defendant officers, the Parties need not disclose, and prior to February 28, 2011, the Plaintiff shall not disclose to the other parties in the case the discovery which is the subject of this Order. If the City believes further protection is warranted, it shall file a motion with appropriate supporting documentation prior to February 28, 2011. (Chernetsky, James) (Entered: 12/29/2010)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Leo T. Sorokin: Status Conference held on 1/18/2011; Court hears counsel on the status of the case; Case is currently stayed; counsel discuss extending the deadlines for discovery past a decision by the 1st circuit; court requests counsel file a motion with requested dates and a status report re the decision when received; (Court Reporter: Digital Recording.) (Simeone, Maria) (Entered: 01/19/2011)
42 Joint MOTION for Extension of Time to Complete Discovery by City of Boston, John Cunniffe, Simon Glik, Jerome Hall−Brewster, Peter J. Savalis.(Milton, David) (Entered: 01/24/2011)
Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 42 Motion for Extension of Time to Complete Discovery 90 days after the decision of the circuit (Simeone, Maria) (Entered: 01/27/2011)
Judge Douglas P. Woodlock: ELECTRONIC ORDER entered in case 1:10−cv−10150−LTS; denying (15) Motion for Reconsideration in case 1:11−cv−11235−DPW Associated Cases: 1:11−cv−11235−DPW, 1:10−cv−10150−LTS(Woodlock, Douglas) (Entered: 08/18/2011)
43 OPINION of USCA as to 22 Notice of Appeal, filed by Jerome Hall−Brewster, John Cunniffe, City of Boston, Peter J. Savalis. Opinion issued in the USCA 8/26/2011 (Ramos, Jeanette) (Entered: 08/29/2011)
44 USCA Judgment as to 22 Notice of Appeal, filed by Jerome Hall−Brewster, John Cunniffe, City of Boston, Peter J. Savalis. This cause came on to be heard on appeal from the United States District Court for the District of Massachusetts and was argued by counsel. Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The district court's order denying appellant's claim of qualified immunity is affirmed. Judgment issued in the USCA 8/26/2011 (Ramos, Jeanette) (Entered: 08/29/2011)
45 STATUS REPORT and Defendants' Assented−To Motion to Extend Discovery by City of Boston, John Cunniffe, Jerome Hall−Brewster, Peter J. Savalis. (Maki, Lisa) (Entered: 09/12/2011)
46 MANDATE of USCA as to 22 Notice of Appeal, filed by Jerome Hall−Brewster, John Cunniffe, City of Boston, Peter J. Savalis. Appeal 22 Terminated. Mandate issued in the USCA 9/20/2011 (Ramos, Jeanette) (Entered: 09/21/2011)

Case: 1:10-cv-10150 As of: 09/09/2012 11:08 AM EDT 8 of 9

09/30/2011 10/05/2011 10/05/2011 10/11/2011 10/11/2011 10/14/2011
10/19/2011 11/01/2011
11/07/2011 11/08/2011
01/10/2012 01/11/2012 01/17/2012 01/18/2012 01/19/2012 01/19/2012 01/19/2012 01/20/2012

47 NOTICE of Appearance by Raquel D. Ruano on behalf of City of Boston, John Cunniffe, Jerome Hall−Brewster, Peter J. Savalis (Ruano, Raquel) (Entered: 09/30/2011)
48 MOTION to Maintain Confidentiality of Certain Documents Produced Through Discovery by City of Boston.(Maki, Lisa) (Entered: 10/05/2011)
49 MEMORANDUM in Support re 48 MOTION to Maintain Confidentiality of Certain Documents Produced Through Discovery filed by City of Boston. (Maki, Lisa) (Entered: 10/05/2011)
50 NOTICE by Simon Glik − Opposition to Plaintiff Max Strahan's Motion to Consolidate (Milton, David) (Entered: 10/11/2011)
51 NOTICE by City of Boston, John Cunniffe, Jerome Hall−Brewster, Peter J. Savalis of Opposition to Plaintiff, Richard Strahan's Motion to Consolidate (Maki, Lisa) (Entered: 10/11/2011)
Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered. Allowed; Discovery deadline extended to 3/29/12. re 45 Status Report filed by Jerome Hall−Brewster, John Cunniffe, City of Boston, Peter J. Savalis, ( Discovery to be completed by 3/29/2012)(Simeone, Maria) (Entered: 10/14/2011)
52 Opposition re 48 MOTION to Maintain Confidentiality of Certain Documents Produced Through Discovery filed by Simon Glik. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 10/19/2011)
53 Magistrate Judge Leo T. Sorokin: ORDER entered. The City of Boston may, no later than November 10, 2011, submit evidence to support its assertion that the internal affairs investigation at issue is ongoing and may submit a supplemental memo, not to exceed five pages; re 48 MOTION to Maintain Confidentiality of Certain Documents Produced Through Discovery filed by City of Boston (Entered: 11/01/2011)
54 Supplemental MEMORANDUM in Support re 48 MOTION to Maintain Confidentiality of Certain Documents Produced Through Discovery filed by City of Boston. (Ruano, Raquel) (Entered: 11/07/2011)
Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered; The Motion to Maintain Confidentiality (#48) is DENIED except regarding the personal identifying information which the parties have agreed to redact.re 48 Motion to Maintain Confidentiality of Certain Documents Produced Through Discovery (Simeone, Maria) (Entered: 11/08/2011)
ELECTRONIC NOTICE of Hearing; A. Status Conference has been set for 4/4/2012 03:30 PM in Courtroom 24 before Magistrate Judge Leo T. Sorokin. (Simeone, Maria) (Entered: 01/10/2012)
55 NOTICE of Appearance by Ian D. Prior on behalf of John Cunniffe (Prior, Ian) (Entered: 01/11/2012)
56 NOTICE of Appearance by Hugh R. Curran on behalf of Jerome Hall−Brewster, Peter J. Savalis (Curran, Hugh) (Entered: 01/17/2012)
57 MOTION for Hearing (Status Conference) by Simon Glik.(Milton, David) (Entered: 01/18/2012)
58 REFERRING CASE to Alternative Dispute Resolution. The parties have requested a mediation with MJ Dein.(Simeone, Maria) (Entered: 01/19/2012)
Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 57 Motion for Hearing (Simeone, Maria) (Entered: 01/19/2012)
ELECTRONIC NOTICE of Hearing. A Status Conference has been set for 1/26/2012 10:30 AM in Courtroom 24 before Magistrate Judge Leo T. Sorokin. (Simeone, Maria) (Entered: 01/19/2012)
ELECTRONIC NOTICE of assignment to ADR Provider. Chief Magistrate Judge Judith G. Dein appointed. The Court will contact counsel with regard to scheduling. (Franklin, Yvonne) (Entered: 01/20/2012)

Case: 1:10-cv-10150 As of: 09/09/2012 11:08 AM EDT 9 of 9

01/23/2012
01/23/2012 01/24/2012 02/01/2012 02/01/2012 02/17/2012 02/17/2012 03/02/2012 03/05/2012
03/06/2012 03/06/2012 03/29/2012

ELECTRONIC NOTICE OF AND ORDER REGARDING ADR CONFERENCE: Mediation before Ch. Magistrate Judge Dein set for Monday, March 5, 2012, at 10:00AM in Courtroom #15 on the 5th Floor. Counsel are directed to be present with their clients or representatives thereof with full settlement authority. No later than three days before the conference, each party shall submit (by mail or hand delivery) to Judge Dein a brief memorandum marked "Confidential − Not for Docketing" addressing the party's position on the merits of the case and on settlement. If you believe the case is not ripe for mediation at this time, please notify opposing counsel and the court as soon as possible. (Dambrosio, Jolyne) (Entered: 01/23/2012)
59 Assented to MOTION to Continue Status Conference to after March 5, 2012 by Simon Glik.(Milton, David) (Entered: 01/23/2012)
Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 59 Motion to Continue; The Status Conference has been reset for 3/8/2012 03:00 PM in Courtroom 24 before Magistrate Judge Leo T. Sorokin. (Simeone, Maria) (Entered: 01/24/2012)
60 NOTICE of Withdrawal of Appearance by Lisa Skehill Maki on behalf of John Cunniffe, Peter J. Savalis, and Jerome Hall−Brewster (Maki, Lisa) (Entered: 02/01/2012)
61 NOTICE of Withdrawal of Appearance by Raquel D. Ruano (Ruano, Raquel) (Entered: 02/01/2012)
62 MOTION To Maintain Confidentiality of Certain Documents Produced Through Discovery by City of Boston.(Maki, Lisa) (Entered: 02/17/2012)
63 MEMORANDUM in Support re 62 MOTION To Maintain Confidentiality of Certain Documents Produced Through Discovery filed by City of Boston. (Maki, Lisa) (Entered: 02/17/2012)
64 Opposition re 62 MOTION To Maintain Confidentiality of Certain Documents Produced Through Discovery filed by Simon Glik. (Attachments: # 1 Exhibit 1)(Milton, David) (Entered: 03/02/2012)
ELECTRONIC REPORT OF ADR PROVIDER. Magistrate Judge Dein: On March 5, 2012, I conducted a mediation in this case. All parties were represented by counsel, and were present in person, by telephone or by authorized corporate officer. The case was settled. Your clerk should enter a 45−day order of dismissal. (Dambrosio, Jolyne) (Entered: 03/05/2012)
65 Ch. Magistrate Judge Leo T. Sorokin: ORDER entered. 45 SETTLEMENT ORDER OF DISMISSAL (Simeone, Maria) (Entered: 03/06/2012)
Civil Case Terminated. (Simeone, Maria) (Entered: 03/06/2012)
66 STIPULATION of Dismissal of all Claims With Prejudice by City of Boston, John Cunniffe, Simon Glik, Jerome Hall−Brewster, Peter J. Savalis. (Maki, Lisa) (Entered: 03/29/2012)

 
 Case: 10-1764 Document: 00116146365 Page: 1 Date Filed: 12/13/2010 Entry ID: 5511228
No. 10-1764
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
SIMON GLIK Plaintiff-Appellee,
v. JOHN CUNNIFFE, in his individual capacity; PETER SAVALIS, in his individual
capacity; JEROME HALL-BREWSTER, in his individual capacity; CITY OF BOSTON
Defendants-Appellants
On Appeal from the United States District Court For the District of Massachusetts Civil Action No. 10-cv-10150-LTS
BRIEF OF APPELLANTS JOHN CUNNIFFE, PETER SAVALIS, AND JEROME HALL-BREWSTER
William F. Sinnott Corporation Counsel
Ian D. Prior, BBO No. 655704 First Circuit Court of Appeals No. 1123736 Lisa Skehill Maki, BBO No. 675344 First Circuit Court of Appeals No. 1140641 Assistant Corporation Counsel City of Boston Law Department Room 615, City Hall Boston, MA 02201 (617) 635-4017 (Prior) (617) 635-4022 (Maki)

Case: 10-1764 Document: 00116146365 Page: 2 Date Filed: 12/13/2010 Entry ID: 5511228
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………...……...……………iv-vii
JURISDICTIONAL STATEMENT…………………………………………..……1
STATEMENT OF ISSUES PRESENTED FOR REVIEW……………..…………2
STATEMENT OF THE CASE……………………………………..……...…….3-5
STATEMENT OF FACTS…………………………………………….…………...6
STANDARD OF REVIEW………………………………………….......................7
SUMMARY OF THE ARGUMENT……………………………….……….…...8-9
ARGUMENT………………………………………………….….……….…..10-40
I. THE COURT SHOULD BEGIN ITS ANALYSIS WITH THE SECOND PRONG OF THE QUALIFIED IMMUNITY ANALYSIS - WHETHER THE RIGHTS AT ISSUE WERE CLEARLY ESTABLISHED AT THE TIME OF THE INCIDENT……………………………………….……10-15
II. THE OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY ON GLIK’S CLAIM THAT THEY VIOLATED HIS FIRST AMENDMENT RIGHTS……………………………..……………………………...….15-30
A. Neither The Supreme Court Nor The First Circuit Have Recognized A First Amendment Right To Record Police Officers Carrying Out Their Duties In A Public Place………………….…………………….….15-19
B. There Is No Consensus Of Cases Of Persuasive Authority Such That A Reasonable Officer Would Believe That His/Her Actions Were Unlawful…………..………………………………………..………19-30
i. The Third Circuit And The Fourth Circuit Have Both Held That There Is No Clearly Established First Amendment Right To Record Police Activities………………………………………..……...20-25
ii. The Western District Of Pennsylvania And The Eastern District Of
ii

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Louisiana Have Also Held That There Is No Clearly Established First Amendment Right To Record Police Activities….……...25-27 iii. The District Court Cases Relied Upon By Glik Are Not Analogous To His Case And Do Not Hold That There Is A Clearly Established Right To Record Police Activity……………………....…...….27-30 III. THE OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY ON GLIK’S CLAIM THAT THEY VIOLATED HIS FOURTH AMENDMENT RIGHTS…..........................................................................................….30-39 A. Glik’s Suggested Interpretation Of M.G.L. c. 272, § 99 Would Render The Statute Meaningless…………………………………….………….35-39 IV. GLIK’S MALICIOUS PROSECUTION CLAIM FAILS BECAUSE THE OFFICERS HAD PROBABLE CAUSE TO ARREST HIM FOR VIOLATING M.G.L. c. 272, § 99……………...………………………….40 CONCLUSION…………………………………...…………………………..…..41 CERTIFICATE OF COMPLIANCE……………………………………….……..42 CERTIFICATE OF SERVICE……………………………………………………43 ADDENDUM & ADDENDUM TABLE OF CONTENTS………………..…44-45 DOCUMENTS INCLUDED IN ADDENDUM…………………………...AD 1-40
iii

Case: 10-1764 Document: 00116146365 Page: 4 Date Filed: 12/13/2010 Entry ID: 5511228

TABLE OF AUTHORITIES

CASES

PAGE(S)

Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5 (1st Cir. 2004) …………………...31

Alliance to End Repression v. City of Chicago, 2000 U.S. Dist. LEXIS 6342 (N.D.

Ill. May 8, 2000) ……………………….……………………….…………22, 27-28

Ashcroft v. Iqbal, ---U.S. ----, 129 S. Ct. 1937 (2009) …………..………………..7

Baker v. Coxe, 230 F.3d 470, 475 (1st Cir. 2000)………………………………...15

Bell v. Mazza, 474 N.E.2d 1111 (Mass. 1985)……………..…………………….10

Bergeron v. Cabral, 560 F.3d 1 (1st Cir. 2009) ……………………………..……11

Buchanan v. Maine, 469 F.3d 158 (1st Cir. 2006) ………………………..……...13

Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634 (D.Minn. 1972) ………..…22, 28

Commonwealth v. Hyde, 750 N.E.2d 963 (Mass. 2001) …..…………32, 33, 36-39

Commonwealth v. Jackson, 349 N.E.2d 337 (Mass. 1974)……………….33, 36, 39

Connell v. Hudson, 733 F.Supp. 465 (D.N.H. 1990) …………………....……….22

Correllas v. Viveiros, 572 N.E.2d 7 (Mass. 1991) ……………………………….40

Demarest v. Athol/Orange Cmty. Television, Inc., 188 F.Supp.2d 82 (D.Mass.

2002) ……………………….…………………………………………..…21, 22, 27

Duarte v. Healy, 537 N.E.2d 1230 (Mass. 1989)…………………………………10

Foley v. Polaroid Corp., 508 N.E.2d 72 (Mass. 1987) ……………………….…..40

Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) ……………...21, 22, 28, 29

iv

Case: 10-1764 Document: 00116146365 Page: 5 Date Filed: 12/13/2010 Entry ID: 5511228
Giragosian v. Bettencourt, 614 F.3d 25 (1st Cir. 2010)…………………………..10 Gouin v. Gouin, 249 F.Supp.2d 62 (D.Mass. 2003) ……………..…………...33, 39 Gravolet v. Tassin, No. 08-3646, 2009 WL 1565864 (E.D.La. June 2, 2009)..26, 27 Harlow v. Fitzgerald, 457 U.S. 800 (1982) ………………………………………10 Hatch v. Department for Children Youth and Their Families, 274 F.3d 12 (1st Cir. 2001) ……………………….……………………….………………………...11, 16 Howcroft v. City of Peabody, 747 N.E.2D 729 (Mass.App.Ct. 2001)………....…10 Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) ………………………...11, 16-19 Jarrett v. Town of Yarmouth, 309 F.3d 54 (1st Cir. 2003)………………….……..7 Jennings v. Jones, 499 F.3d 2 (1st Cir.2007) ……………………….……….……11 Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010).………20-22, 24, 27, 28 Lambert v. Polk County, 723 F.Supp. 128 (S.D. Iowa 1989) ……………21, 22, 28 Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009)………………………..11, 13 Martinez-Rodriguez v. Colon-Pizarro, 54 F.3d 980 (1st Cir.1995)..…….....…….16 Matheny v. County of Allegheny, No. 09-1070, 2010 WL 1007859 (W.D.Pa. March 16, 2010) ……………………….………………………………………....26 Nieves v. McSweeney, 241 F.3d 46 (1st Cir. 2001) ……………………………..40 Owen v. City of Independence, 445 U.S. 622 (1980)….......………………………4 Pearson v. Callahan, 129 S. Ct. 808 (2009).………………………..8, 10, 12, 13, 14 Ricci v. Urso, 974 F.2d 5 (1st Cir. 1992)……………………………………....…31
v

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Rice v. Kempker, 374 F.3d 674 (8th Cir. 2004) ………………………….………28 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ……………..……18 Rivera v. Murphy, 979 F.2d 259 (1st Cir. 1992)………………………….………31 Rivera-Ramos v. Roman, 156 F.3d 276 (1st Cir. 1998)………………...………….1 Robinson v. Bibb, 840 F.2d 349 (6th Cir. 1988).……………………….………...11 Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009) ………………...………..7 Santiago v. Fenton, 891 F.2d 373 (1st Cir. 1989) ………………………………..40 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)………………………….15 Saucier v. Katz, 533 U.S. 194 (2001) ……………………….………………..12-14 Savard v. Rhode Island, 338 F.3d 23 (1st Cir. 2003) ……………..……………...25 Sheehy v. Town of Plymouth, 191 F.3d 15 (1st Cir.1999) ……………………….31 Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) ……….………...21-25 Sutliffe v. Epping Sch. Dist., 584 F.3d 314 (1st Cir.2009) …………………….….7 Szymecki v. Houck, 353 Fed.Appx. 852 (4th Cir. 2009) ………………...23, 24, 27 United States v. Kerley, 753 F.2d 617 (7th Cir.1985) ……………………………29 Uphoff Figueroa v. Alejandro, 597 F.3d 423 (1st Cir. 2010)……………..………..7 Velez-Diaz v. Vega-Irizarry, 421 F.3d 71 (1st Cir. 2006)………………………….1 Walden v. City of Providence, 596 F.3d 38 (1st Cir. 2010)……………..…………4 Wallace v. King, 626 F.2d 1157 (4th Cir. 1980)..………………………………...11 Wilson v. Layne, 562 U.S. 603 (1999) ……………………….………………11, 25
vi

Case: 10-1764 Document: 00116146365 Page: 7 Date Filed: 12/13/2010 Entry ID: 5511228
Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16 (2d Cir.1984) ……………………………………………………………….……………………29 Whiteland Woods v. Township of West Whiteland, 193 F.3d 177 (3rd Cir. 1999)………………………………………………………………………………29 Wynne v. Rosen, 464 N.E.2d 1348 (Mass. 1984) ……………………….……….40 CONSTITUTIONAL PROVISIONS U.S. Const., amend I…………………………………………………………...….15 U.S. Const., amend IV……………………………………………………….…....30 STATUTES 28 U.S.C. § 1331…………………………………………………………………...1 28 U.S.C. § 1367…………………………………………………………………...1 42 U.S.C. § 1983……………………………………………….4, 10, 17, 21, 23, 27 Massachusetts General Laws, Chapter 272, Section 99……….………3, 6, 8, 30-40 Massachusetts General Laws, Chapter 268, Section 17………………….……...3, 6 Massachusetts General Laws, Chapter 272, Section 53…………………….…...3, 6 Massachusetts General Laws, Chapter 39, Section 23B………………………....18 OTHER AUTHORITIES Fed. R. Civ. P. 12(b)(6) ………………………………………………………........7 Fed. R. App. P. 3…………………………………………………………………...1 Fed. R. App. P. 4……………………………………………………………….…..1
vii

Case: 10-1764 Document: 00116146365 Page: 8 Date Filed: 12/13/2010 Entry ID: 5511228
JURISDICTIONAL STATEMENT Pursuant to 28 U.S.C. §§ 1331 and 1367, the United States District Court for the District of Massachusetts had subject matter jurisdiction over the Appellee, Simon Glik’s (hereinafter “Glik”) Federal Civil Rights Act claim alleging violations of his First and Fourth Amendment rights, as well as his pendant state law claims under the Massachusetts Civil Rights Act and his malicious prosecution claim. See Joint Appendix, at page _ (hereinafter “JA _.”). The DefendantsAppellants, Boston Police Officers John Cunniffe (“Cunniffe”), Peter Savalis (“Savalis”), and Jerome Hall-Brewster (“Hall-Brewster”) (collectively referred to as the “Officers”), moved to dismiss Glik’s Complaint, which was denied by the District Court on June 9, 2010. See Appellants-Defendants’ Addendum, at page 1 (hereinafter “AD _.”) The Officers timely filed a notice of appeal on June 23, 2010. JA 21-22. The Appellate Court has jurisdiction based on 28 U.S.C. §§ 1291 and 1292, the “collateral order” doctrine, Rules 3 and 4 of the Federal Rules of Appellate Procedure, and this Court’s decisions in Velez-Diaz v. Vega-Irizarry, 421 F.3d 71, 77 (1st Cir. 2006) and Rivera-Ramos v. Roman, 156 F.3d 276, 279 (1st Cir. 1998), which permit an immediate interlocutory appeal of a District Court order denying qualified immunity.
1

Case: 10-1764 Document: 00116146365 Page: 9 Date Filed: 12/13/2010 Entry ID: 5511228
STATEMENT OF ISSUES PRESENTED FOR REVIEW 1. Whether the District Court erred in denying the Officers qualified
immunity by finding that there was a clearly established First Amendment right in the First Circuit to videotape police officers carrying out their public duties. 2. Whether the District Court erred in denying the Officers qualified immunity because reasonable police officers, similarly situated to the Officers, would not have understood that they were violating Glik’s clearly established First Amendment rights by arresting him for using a cellular phone to make an audio/visual recording of them. 3. Whether the District Court erred in denying the Officers qualified immunity because reasonable police officers, similarly situated to the Officers, would not have understood that they were violating Glik’s clearly established Fourth Amendment rights by arresting Glik for using a cellular phone camcorder to make an audio/visual recording of them without their knowledge or consent.
2

Case: 10-1764 Document: 00116146365 Page: 10 Date Filed: 12/13/2010 Entry ID: 5511228
STATEMENT OF THE CASE This case involves an incident that occurred in the Boston Common during the early evening hours of Monday, October 1, 2007, in which the Officers were attempting to arrest an individual for the distribution of illegal drugs. JA 9. Upon effecting the arrest of the drug suspect, Glik informed the Officers that he had been using a camcorder application in his cellular phone to make an audio and visual recording of them making the arrest. JA 10. Upon learning of this, Officer Savalis arrested Glik and charged him with (1) unlawfully intercepting oral communications in violation of the Massachusetts Wiretap Act, codified as Massachusetts General Laws, Chapter 272, Section 99; (2) aiding in the escape of a prisoner in violation of Massachusetts General Laws, Chapter 268, Section 17; and (3) disturbing the peace in violation of Massachusetts General Laws, Chapter 272, Section 53. JA 10-11. The prosecution for the Commonwealth of Massachusetts voluntarily dismissed the charge of aiding in the escape of a prisoner but went forward on the other two charges of disturbing the peace and unlawful interception of oral communications. JA 11. On February 1, 2008, the Boston Municipal Court dismissed the remaining two charges for lack of probable cause. JA 11. The Court reasoned that Glik’s recording of the arrest was not in violation of the Massachusetts Wiretap Act because Glik had openly held out his cellular phone
3

Case: 10-1764 Document: 00116146365 Page: 11 Date Filed: 12/13/2010 Entry ID: 5511228
while recording the Officers during their arrest of the drug suspect and thus, the recording was not secret. JA 11.
Glik subsequently filed this lawsuit on February 1, 2010. JA 1. Count I and II of his Complaint alleged that the Officers were liable under 42 U.S.C. § 1983 (the Federal Civil Rights Act) and M.G.L. c. 12, § 11I (the Massachusetts Civil Rights Act), respectively, for violating his First and Fourth Amendment Rights by arresting him for recording the Officers’ activities. JA 14-15. Count III of Glik’s Complaint asserted that the Officers are liable for malicious prosecution.1 JA 15.
On April 22, 2010, the Officers filed a motion to dismiss Glik’s Complaint. JA 2. As grounds for their motion, the Officers argued that they were entitled to qualified immunity as Glik did not have a clearly established First Amendment right to use a camcorder application in his cellular phone to record police activity. The Officers further argued that arrest of Glik was lawful under the Massachusetts Wiretap Act and thus did not violate his Fourth Amendment rights or, at the very least, were entitled to qualified immunity because they were reasonably mistaken in their arrest of Glik pursuant to the Massachusetts Wiretap Act.
On June 8, 2010, the District Court heard oral argument on the Officers’
1 Glik also brought a 42 U.S.C. § 1983 municipal liability claim against the City of Boston. JA 19. The City is not currently a party to this appeal as it does not have the right to an immediate interlocutory appeal on the basis of qualified immunity. Walden v. City of Providence, 596 F.3d 38, 55 n.23 (1st Cir. 2010) (citing Owen v. City of Independence, 445 U.S. 622, 638 (1980)).
4

Case: 10-1764 Document: 00116146365 Page: 12 Date Filed: 12/13/2010 Entry ID: 5511228
motion to dismiss. JA 3. Ruling from the bench, the Court held that the right to record police officers is a clearly established First Amendment right in the First Circuit. JA 3. Based on that finding, the District Court issued an Order on June 9, 2010 denying the Officers’ motion to dismiss. JA 3. The Court did not include a written decision with its June 9, 2010 Order.2 AD 1. The Officers appeal from the District Court’s June 9, 2010 Order denying their motion to dismiss. JA 21-22.
2 Because the District Court did not include a written opinion explaining its decision to deny the Officers’ motion to dismiss, the Officers will base their argument in the instant brief as if the District Court adopted the arguments advanced by Glik in his opposition to the Defendants’ motion to dismiss and at the motion to dismiss hearing.
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STATEMENT OF FACTS On October 1, 2007, while walking on the Tremont Street sidewalk between Park Street and Boylston Street, in Boston, Massachusetts, Glik observed the Officers engaged in the arrest of a drug suspect near a park bench in the Boston Common. JA 9. Upon seeing the arrest in progress, Glik took out his cellular phone and, while standing ten feet away from the officers, recorded the arrest using the camcorder application in his cellular phone. JA 9. Glik recorded three separate segments of the ongoing arrest. JA 9. At no time did Glik speak to the officers before the drug suspect was handcuffed. JA 9. After the drug suspect was placed in handcuffs, one of the Officers approached Glik and stated, “I think you have taken enough pictures,” to which Glik responded, “I am recording this. I saw you punch him.” JA 10. One of the other Officers then asked Glik if his phone was recording audio. JA 10. Glik confirmed that his phone had indeed been recording audio, and as a result, Officer Savalis placed Glik under arrest for: (1) unlawfully intercepting their oral communications in violation of Massachusetts General Laws, Chapter 272, Section 99; (2) aiding in the escape of a prisoner in violation of Massachusetts General Laws, Chapter 268, Section 17; and (3) disturbing the peace in violation of Massachusetts General Laws, Chapter 272, Section 53. JA 10-11.
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STANDARD OF REVIEW Whether an officer is entitled to qualified immunity is a question of law to be determined by the court. See Jarrett v. Town of Yarmouth, 309 F.3d 54, 61 (1st Cir. 2003). As this question is on appeal following the denial of the Officers’ motion to dismiss, this Court reviews the District Court’s decision de novo, “accepting as true all well-pleaded facts in the complaint and drawing all reasonable inferences in the plaintiff['s] favor.” Uphoff Figueroa v. Alejandro, 597 F.3d 423, 429 (1st Cir. 2010) (quoting Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.2009)). In order to survive a motion to dismiss under Rule 12(b)(6), Glik must “plead [ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir. 2009) (quoting Ashcroft v. Iqbal, ---U.S. ----, 129 S. Ct. 1937, 1949 (2009)). In other words, Glik must offer “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” in order to claim “a plausible entitlement to relief.” Id. (quoting Iqbal, 129 S. Ct. at 1949).
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SUMMARY OF THE ARGUMENT The District Court properly exercised its discretion under Pearson v. Callahan, 129 S. Ct. 808 (2009), by analyzing the facts under the second “clearly established” prong of the qualified immunity analysis without determining the existence of a constitutional violation. The District Court erred in denying Officers qualified immunity, by finding that there is a clearly established First Amendment right to record police officers carrying out their public duties. Not one First Circuit or Supreme Court case has held that such a clearly established constitutional right exists, nor has there been a consensus of circuit court cases to sufficiently alert the Officers of such a right. Moreover, in the event that such a right was clearly established at the time, the District Court erred by denying the Officers qualified immunity based on the fact that an officer facing similar circumstances would not reasonably be expected to understand that his actions violated that right. With respect to Glik’s Fourth Amendment claim, the District Court erred when it denied the Officers qualified immunity because a reasonable interpretation of the Massachusetts Wiretap Act, Massachusetts General Laws, Chapter 272, Section 99, and the cases interpreting it, would not have placed a reasonable officer facing similar circumstances on notice that his actions would violate an individual’s Fourth Amendment right. In particular, a reasonable officer facing a
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similar factual scenario would have believed that he had probable cause to arrest Glik for a violation of the Massachusetts Wiretap Act, or, at the very least, an officer facing similar circumstances would be reasonably mistaken in believing he had probable cause to arrest.
Based on the presence of probable cause under the Fourth Amendment to arrest Glik for violating the Massachusetts Wiretap Act, Glik’s malicious prosecution claim fails as a matter of law.
For all of these reasons, which are more thoroughly discussed within, this Court should reverse the decision of the District Court denying the Officers qualified immunity.
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ARGUMENT
I. THE COURT SHOULD BEGIN ITS ANALYSIS WITH THE SECOND PRONG OF THE QUALIFIED IMMUNITY ANALYSIS - WHETHER THE RIGHTS AT ISSUE WERE CLEARLY ESTABLISHED AT THE TIME OF THE INCIDENT.
Qualified immunity is a legal doctrine that shields government officials from liability from civil damages in a 42 U.S.C. § 1983 action3 “insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Thus, government officials are entitled to qualified immunity unless (1)
the facts that a plaintiff has alleged or shown make out a violation of a
constitutional right; and (2) the right at issue was clearly established at the time of
the defendant’s misconduct. Pearson v. Callahan, 129 S. Ct. 808, 816 (2009). “A
right is ‘clearly established’ if, at the time of the alleged violation, ‘[t]he contours
of the right * * * [were] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’” Giragosian v. Bettencourt,
3 Glik also brought a cause of action under the Massachusetts Civil Rights Act, Massachusetts General Laws, Chapter 12, Section 11I (hereinafter referred to as the “MCRA”). JA 14-15. The MCRA is coextensive with 42 U.S.C. § 1983. Bell v. Mazza, 474 N.E.2d 1111, 1114 (Mass. 1985). Like § 1983, it is not an independent cause of action, and does not create any substantive civil rights; it merely provides a mechanism whereby one can obtain relief from interference of rights conferred by federal or state law. Howcroft v. City of Peabody, 747 N.E.2d 729, 744-45 (Mass.App.Ct. 2001). Consequently, qualified immunity under the MCRA is analyzed and applied in the same manner as it is under 42 U.S.C. § 1983. Duarte v. Healy, 537 N.E.2d 1230 (Mass. 1989).
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614 F.3d 25, 29 (1st Cir. 2010) (quoting Maldonado v. Fontanes, 568 F.3d 263,
269 (1st Cir. 2009)).
A constitutional right is “clearly established if courts have ruled that
materially similar conduct was unconstitutional, or if there is a previously
identified general constitutional principle that applies with obvious clarity to
the specific conduct at issue.” Jennings v. Jones, 499 F.3d 2, 16 (1st Cir.2007)
(internal quotations omitted). In order to show that an asserted right was clearly
established, a plaintiff must look to cases from this circuit and other circuits and
“must identify ‘cases of controlling authority * * * at the time of the incident * * *
[or] a consensus of cases of persuasive authority such that a reasonable officer
could not have believed that his actions were lawful.’” Bergeron v. Cabral, 560 F.3d 1, 11 (1st Cir. 2009) (quoting Wilson v. Layne, 562 U.S. 603, 617 (1999)).4
Traditionally, the application of the qualified immunity analysis was done in
4 This Court has looked to federal district court decisions from this circuit and others to help answer the question of whether a consensus of cases of persuasive authority exists. See Hatch v. Dep’t for Children Youth and Their Families, 274 F.3d 12, 23 (1st Cir. 2001). This Circuit has not yet directly held, as the Sixth and Fourth Circuits have, that courts should look to the decisions of the state’s highest court to determine whether a right is clearly established. See Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir. 1988); Wallace v. King, 626 F.2d 1157, 1161 (4th Cir. 1980). Nevertheless, in Iacobucci v. Boulter, 193 F.3d 14, 24 (1st Cir. 1999), this Court relied on decisions from the Massachusetts Supreme Judicial Court to determine whether a right was clearly established. Thus, in this brief, the Officers will also look to decisions of that Supreme Judicial Court for aid in determining whether the Constitutional right asserted by Glik has been clearly established.
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sequential order, with the requirement that courts first decide whether an official’s
alleged conduct violated a Constitutional right. Pearson, 129 S. Ct. at 816 (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001)). In Pearson, however, the Supreme
Court unanimously acknowledged that in many cases the strict sequential analysis
mandated by Saucier was unworkable. Id. at 819. Specifically, the Court noted
that in cases where constitutional questions are heavily fact-bound, the discussion
of the first prong in a qualified immunity analysis would result in a “substantial
expenditure of scarce judicial resources on difficult questions that have no effect
on the outcome of the case” and have little if any precedential value for future
cases.5 Id. at 818-19. Consequently, while preserving the substance of the
5 In his opposition to the Defendants’ motion to dismiss, Glik argued that the Court should apply the qualified immunity analysis in the Saucier sequential order. AD 22. In support of that premise, he quoted Pearson for the assertion that “the development of constitutional precedent” * * * is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.” AD 22. Glik, however, neglected to provide the proper context for that quotation (Glik also mistakenly cited to page 821; the quotation is actually located on page 818). AD 22. Read in its full context, it is evident that while the Supreme Court maintains that Saucier may still have some value, it also held that the Saucier analysis was unwieldy and should no longer be mandatory. The Court also went on to allay fears that without the first prong of Saucier there would be a dearth of constitutional law by highlighting that the development of constitutional law is not entirely dependant on § 1983 actions where qualified immunity is available, because constitutional law is developed in criminal cases and in § 1983 municipal liability cases. Pearson, 129 S. Ct. at 821-22. Moreover, any development of constitutional law through individual § 1983 actions is so factspecific that any constitutional development is insignificant. Id. at 819. (and cases cited).
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qualified immunity analysis, the Supreme Court held that the rigid sequential order of analysis required by Saucier was no longer mandatory and that the district courts should be permitted wide discretion in deciding which of the questions to address first. Id. at 818.
Moreover, in making the order of the two-part test permissive in nature, the Supreme Court specifically highlighted the utility in bypassing the first prong of the qualified immunity analysis where the defense is asserted at the pleadings stage. Id. at 819. This Court has also recognized such an advantage in skipping the first prong, noting that “where the answer to the first prong of the immunity question may depend on the further development of the facts, it may be wise to avoid the first step.” Maldonado, 568 F.3d at 270 (citing Buchanan v. Maine, 469 F.3d 158, 168 (1st Cir.2006)).6
The instant case is a compelling example of why this Court should bypass the constitutional question of the first prong of the qualified immunity analysis and begin its analysis instead, on the “clearly established” prong. There are three reasons for this.
First, it appears from the motion to dismiss hearing transcript that the 6 In further support of his argument that the Court should apply the qualified immunity analysis in the Saucier sequential order, Glik argued that such an application was warranted because “the defendants have moved to dismiss for failure to state a cognizable claim.” This argument is diametrically opposed to the Supreme Court’s advice in Pearson and this Court’s suggestion in Maldonado that it is advantageous to bypass the first prong early in the pleadings stage.
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District Court decided the issue by limiting its inquiry to the second question of whether the constitutional right asserted was clearly established. AD 8. As this decision was within the District Court’s discretion, this Court should confine its analysis to whether the District Court’s second prong analysis was correct— whether Glik’s asserted Constitutional right was clearly established—not whether the District Court made the proper decision in starting its analysis with the second prong.
Second, this case has yet to pass the pleadings stage and the answer to whether there was a constitutional violation would depend on further development of the facts. This case exemplifies the scenario in which both this Court and the Supreme Court foresaw the need to bypass the first prong.
Finally, beginning its inquiry by proceeding directly to the question of whether the right was clearly established would allow the Court to circumvent the more difficult and fact-dependent question of whether a constitutional violation existed. This option would be more judicially efficient and would eliminate the risk of creating constitutional precedent that may be confusing or of little value to future cases—the very problems that Pearson cautioned against when abandoning the rigid Saucier test.
Accordingly, the Court should begin and end its analysis of the Officers’ qualified immunity defense with the second prong. As demonstrated further
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below, the application of this analysis will make it abundantly clear that the Officers’ activities did not violate Glik’s clearly established constitutional rights, thereby obviating the need to ever consider the first prong.
II. THE OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY ON GLIK’S CLAIM THAT THEY VIOLATED HIS FIRST AMENDMENT RIGHTS.
Glik asserts that his October 1, 2007 arrest “was a direct interference with [his] right to observe and document the conduct of law enforcement officers carrying out their duties in a public place.”7 AD 19.
Contrary to Glik’s position, his recording of the Officers was not protected by the First Amendment, and alternatively, this asserted constitutional right has not been clearly established by this Court, nor is there a consensus of cases of persuasive authority such that a reasonable officer would have believed that his or her actions were unlawful.
7 The First Amendment provides that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const., amend., I. The First Amendment applies to the states and their political subdivisions under the Due Process Clause of the Fourteenth Amendment. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000).
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A. Neither The Supreme Court Nor The First Circuit Have Recognized A First Amendment Right To Record Police Officers Carrying Out Their Duties In A Public Place.
The first step in determining whether Glik had a clearly established First Amendment right to record the Officers’ police activities is to look to precedent from the Supreme Court and this Circuit that existed at the time of the alleged incident—October 1, 2007. See Hatch v. Dep't for Children, Youth and Their Families, 274 F.3d 12, 20 (1st Cir.2001); Martinez-Rodriguez v. Colon-Pizarro, 54 F.3d 980, 988 (1st Cir.1995). There was not then, nor is there now, any Supreme Court or First Circuit case that clearly establishes Glik’s asserted First Amendment right. Seemingly, Glik recognized this fact in his argument to the District Court as he did not cite a single Supreme Court or First Circuit case that held there to be a First Amendment right to record police officers carrying out their duties in a public place. AD 11-31.
Unable to unearth a Supreme Court or First Circuit decision to support his assertion that there is a First Amendment right to record police officers carrying out their official responsibilities, Glik argued that this Court’s decision in Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) recognized a right to record matters of public concern and that such a right encompassed, with obvious clarity, Glik’s conduct on October 1, 2007. AD 19-20.
Glik’s reliance on Iacobucci is misplaced. In that case, the plaintiff,
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Iacobucci, attempted to videotape an open meeting of the Pembroke Historic District Commission for the purpose of a weekly news program that he produced and broadcasted via a cable television outlet. Id. at 17. During the meeting, the chairman of the commission asked Iacobucci to move his camera from an occupied conference table to a spot across the room or be subject to possible arrest. Id. When Iacobucci refused to do so, he was arrested and charged with disorderly conduct and disrupting a public assembly. Id. at 18. The criminal charges were ultimately dismissed, and subsequently Iacobucci brought a § 1983 action alleging false arrest and excessive force. Id. The case reached this Court after the defendant appealed a jury verdict in favor of Iacobucci. Id.
In addressing whether there was a valid false arrest clam for disorderly conduct, this Court relied on precedent from the Massachusetts Supreme Judicial Court and held that disorderly conduct can never encompass activities implicating a lawful exercise of First Amendment rights. Id. at 24. This Court went on to state that Iacobucci was exercising his First Amendment right and was effectively falsely arrested for disorderly conduct. Id. In that case, however, Iacobucci was engaging in a First Amendment right because he was acting within his rights as conferred by the Massachusetts Open Meetings Law, Massachusetts General Law, Chapter 39, Section 23B, which requires that ‘“[a]ll meetings of a governmental body * * * be open to the public,’ and confers a right to videotape such meetings
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on ‘any person in attendance.’” Id. (quoting M.G.L. c. 39, § 23B). Further, as this Court made clear, the right to videotape is not unfettered, it must be done within the mandates of the statute, and it does not apply to chance or social meetings. Id.
Glik appears to assume that the First Amendment right that protected Iacobucci from arrest for disorderly conduct was the right to videotape a matter of public concern. AD 19-21. There is absolutely nothing in this Court’s opinion that even implies such a right. A plain reading of the opinion makes clear that Iacobucci’s lawful exercise of a First Amendment right concerned his right of access to a place open to the public, as was the meeting of the Pembroke Historic District Commission. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980) (holding that the right of access to places open to the public is grounded in the rights of free assembly and of a free press).
Iacobucci’s right to videotape the meeting, however, was an additional statutory right provided by Massachusetts General Laws, Chapter 39, Section 23B. See Iacobucci, 193 F.3d at 24 (noting that “entitlement to videotape a public meeting” is conferred by the Open Meeting Law). Thus, accessing the meeting was done in the exercise of Iacobucci’s First Amendment rights and videotaping the meeting was done in the exercise of his statutory rights. As a result, the officers had no probable cause to arrest Iacobucci, thus their actions constituted a violation of the Fourth Amendment. This is a far cry from Glik’s supposition that
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the Court held that Iacobucci had a clearly established First Amendment right to record the meeting.8
In sum, contrary to Glik’s assertion, Iacobuccu, does nothing to advance his
contention that he had a clearly established First Amendment right to record the
Officers. It is evident that, to date, there is no clearly established First Amendment
right to record police officers carrying out their public duties in this Circuit. The
District Court erred when it denied the Officers’ qualified immunity defense and
found that there was a clearly established First Amendment right in this Circuit to
record the activities of police officers conducting public business. Accordingly,
the decision of the District Court must be reversed.
B. There Is No Consensus of Cases of Persuasive Authority Such That A Reasonable Officer Would Believe That His/Her Actions Were Unlawful.
Glik is unable to show that there is a consensus of cases of persuasive
authority, beyond the decisions of the Supreme Court and First Circuit, that hold
8 Glik’s misinterpretation of Iacobucci highlights the fact that he has blurred his First Amendment argument with his Fourth Amendment argument. AD 14-21. There is no dispute that Glik had a First Amendment right to be in the Boston Common just as Iacobucci had a right to be at the meeting. Glik’s asserted right to use his cell phone to record the Officers, if such a right existed, would have to be provided statutorily, as was the case in Iacobucci. Thus, the appropriate inquiry in this case is whether Glik’s recording of the Officers was allowed under Massachusetts Wiretap Act, Massachusetts General Laws, Chapter 272, Section 99, and the case law interpreting its meaning. This is a Fourth Amendment inquiry and will be further discussed infra, in Section III of this brief.
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that there is a First Amendment right to videotape police officers performing their duties in a public place. Further, Glik’s assertion that there is a general “right to record matters of public concern” is itself not clearly established and certainly not contoured enough to defeat the Officers’ defense of qualified immunity.
i. The Third Circuit and the Fourth Circuit Have Both Held That There Is No Clearly Established First Amendment Right to Record Police Activities.
Not one federal circuit case supports Glik’s theory that a First Amendment right to record police activity in a public place has been clearly established. On the other hand, the Officers’ position is amply supported by two recent cases from other federal circuits that hold that such a right is not clearly established.
In Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), the Third Circuit held that it was not clearly established that a citizen had a First Amendment right to videotape police officers exercising their duties in a public place. In Kelly, the plaintiff was arrested on May 24, 2007 (less than five months before Glik was arrested) for videotaping a police officer who had pulled over the vehicle in which Kelly, the plaintiff, was a passenger. Id. at 252. The officers charged Kelly with violating the Pennsylvania Wiretapping Act. Id. After the local district attorney dropped the charges, Kelly filed a § 1983 action against the individual officers and the town, alleging that the officers violated his First and Fourth Amendment rights when they arrested him. Id. The officers moved for summary judgment on
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qualified immunity grounds,9 and the district court granted their motion, holding that the officer was entitled to qualified immunity on Kelly’s § 1983 claim. Id. at 252-53.
The Third Circuit Court of Appeals affirmed the district court’s decision. Kelly, 622 F.3d at 253. When analyzing whether Kelly had a clearly established First Amendment right to record the officer, the Third Circuit looked to its own decisions, as well as the decisions from other federal circuits and federal district courts. Id. at 260. In affirming the district court’s finding that there was no clearly established First Amendment right to videotape police officers performing their duties in public, the Third Circuit conducted an in-depth review of the following cases: Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); Demarest v. Athol/Orange Cmty. Television, Inc., 188 F.Supp.2d 82 (D.Mass. 2002); and Lambert v. Polk County, 723 F.Supp. 128 (S.D. Iowa 1989). Based on its review, the Third Circuit determined that, while those cases recognized a general right to record matters of public concern, they did so only in passing. Id. at 261. Further, the Court held that such a general right was “insufficiently analogous” to a right to videotape a police officer in the performance of his duties such that he would be on notice of a clearly
9 The town also moved for, and was granted, summary judgment, but as that is not relevant to the discussion of qualified immunity, the Officers do not address that portion of the decision.
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established right. Id. at 262. Noteworthy is that, in support of his assertion that he had a clearly
established First Amendment right to record the Officers within his opposition to Defendants’ motion to dismiss, Glik relied on Smith, Fordyce, Demarest, and Lambert,10 the very cases that the Third Circuit examined and then dismissed as holding that there is a clearly established First Amendment right to videotape police officers in the performance of their duties. The Third Circuit’s decision in Kelly provides compelling persuasive value as the facts are strikingly similar to the present case—a private citizen videotaping an on-duty police officer—and the Third Circuit conducted an exhaustive review of the cases cited and relied upon by Glik in support of his theory.
Similarly, in Szymecki v. Houck, 353 Fed.Appx. 852 (4th Cir. 2009), the Fourth Circuit explicitly held that there is no clearly established First Amendment right to record police activity on public property. The facts of that case are as
10 Glik also relied on Alliance to End Repression v. City of Chicago, 2000 U.S. Dist. LEXIS 6342 (N.D. Ill. May 8, 2000); Cornell v. Hudson, 733 F.Supp. 465 (D.N.H. 1990); and Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634 (D.Minn. 1972) to support his theory that there is a First Amendment right to videotape the police. AD 11-31.
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follows. 11 On June 10, 2007 Szymecki, the Plaintiff, was using her cellular phone to record a police officer who was arresting her husband for carrying a handgun at a local festival. AD 33. The officer told Szymecki to put the phone away or that she would go to jail. AD 33. He then ordered her to leave the festival grounds, which she did. AD 33. Following the incident, Szymecki filed a § 1983 action against the officer alleging that he had violated her First Amendment right to videotape the actions of police officers. AD 34. The district court granted summary judgment on the grounds that the officer was entitled to qualified immunity based on the absence of a clearly established First Amendment right to videotape police officers. AD 40. Remarkably, the Fourth Circuit dispensed with oral arguments in affirming the district court’s decision. Szymecki, 353 Fed.Appx. at 853.
Finally, the Eleventh Circuit is the only other federal circuit that has addressed the issue of whether there is a clearly established First Amendment right to record police activity. Smith, 212 F.3d at 1333. In Smith, the plaintiff claimed that the defendant police officers violated his First Amendment right to videotape police activities. Id. The district court granted the officers’ motion for summary judgment and the Eleventh Circuit affirmed. Id. In doing so, however, the Court 11 The Fourth Circuit did not include a description of the facts in its opinion. Therefore, in order to provide the Court with the pertinent factual background, the Officers refer to their addendum, which contains the unpublished district court opinion that the Fourth Circuit affirmed. AD 32-40.
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did acknowledge a “First Amendment right subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct.” Id. Nevertheless, the Court found that the officers did not violate Smith’s rights. Id.
As stated supra, the Third Circuit’s decision in Kelly considered and discussed the Smith decision at length. Indeed, the Third Circuit correctly pointed out that “the Eleventh Circuit provided few details regarding the facts of the case, making it difficult to determine the context of the First Amendment right it recognized.” Kelly, 622 F.3d at 260.12
Moreover, while the Fourth Circuit did not discuss the Smith decision, the Szymecki Court did. Specifically, it noted that while Smith may have found that “an individual might have a right to video record police conduct, subject to reasonable time, place, and manner restrictions, [that] does not mean that the Court found that this specific right was clearly established.” AD 40.
Thus, Glik’s reliance on Smith is unavailing. To the extent that the Eleventh Circuit recognized a First Amendment right, the contours of the right were not sufficiently clear such that a reasonable official would understand that what he is doing violates that right. Moreover, if the Third Circuit Court of Appeals could not glean from Smith the parameters of the declared First Amendment right, it
12 Indeed, not only does the Eleventh Circuit provide scant factual information, but there is no published district court opinion nor are the lower court filings and orders readily available on PACER.
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would be unreasonable to expect a police officer to do so. Wilson v. Layne, 562 U.S. 603, 618 (1999) (officers not liable for choosing “wrong side” of federal circuit court split). Furthermore, the fact that one federal circuit may recognize an ill-defined right does not mean that there is a consensus that such a right exists— especially where there is a clear split in authority, as exists here. See Savard v. Rhode Island, 338 F.3d 23, 32 (1st Cir. 2003) (constitutional right not clearly established where there is a split in authority).
Given the split amongst the federal circuits that have addressed the issue and the Third and Fourth Circuit holdings that there is no clearly established First Amendment right to record police activities, it would be unreasonable to require the Officers to understand that such a right is clearly established. Consequently, there can be no doubt that the Officers are entitled to qualified immunity on Glik’s First Amendment claim.
ii. The Western District Of Pennsylvania And The Eastern District Of Louisiana Have Also Held That There Is No Clearly Established First Amendment Right To Record Police Activities.
The absence of a clearly established First Amendment right to videotape police officers carrying out public duties is further recognized by several recent federal district court opinions involving similar factual scenarios in which an individual videotaped a police officer with a cell phone.
In Matheny v. County of Allegheny, No. 09-1070, 2010 WL 1007859
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(W.D.Pa. March 16, 2010), the Court held that there was no clearly established First Amendment right to videotape or record police activity in the course of their official duties. The facts of that case are nearly identical to the facts in this one. On April 29, 2009 Matheny, the plaintiff, used his cellular phone to record a conversation between the defendant police officer and a third party. Id. at * 1. The officer asked Matheny if he had recorded him and, more specifically, whether he had made both audio and visual recording of the incident. Id. When Matheny stated that he had, the officer arrested him for violating the Pennsylvania Wiretapping Act. Id. Matheny sued the police officer alleging that he violated his clearly established First Amendment right to record police activities. Id. at *4. In allowing the officer’s motion to dismiss on the basis of qualified immunity, the Court held that the right to videotape police activities was neither clearly established by controlling authority, nor was there a consensus of cases that would lead a reasonable officer to believe that the right was clearly established. Id. at *5.
Likewise, in Gravolet v. Tassin, No. 08-3646, 2009 WL 1565864 (E.D.La. June 2, 2009), the Court found that there was no clearly established right to videotape police officers. In that case, Tassin, the defendant police officer, arrested Gravolet for drunk driving on May 26, 2007. Id. at *1. Angry about his arrest, Gravolet videotaped Tassin while on duty on three separate occasions the following month. Id. After Tassin noticed Gravolet videotaping her while
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conducting a traffic stop, she arrested him for stalking. Id. Gravolet filed a § 1983 suit, alleging that Tassin had violated his First Amendment right to videotape her. Id. In allowing Tassin’s motion for summary judgment, the Court held that the right to videotape police activities was not clearly established in the Fifth Circuit and found that “given the uncertainty in the caselaw and the lack of guidance from the Fifth Circuit, this Court is unable to find as a matter of law that there was a ‘clearly established right to videotape police officers’ at the time of the arrest under these circumstances.” Id. at *4.
The inclusion of these federal district court decisions within the legal landscape of Kelly and Szymecki further bolsters the Officers’ argument that Glik’s asserted right was not clearly established and as such, the Officers are entitled to qualified immunity.
iii. The District Court Cases Relied Upon By Glik Are Not Analogous To His Case And Do Not Hold That There Is A Clearly Established Right To Record Police Activity.
In opposition to the Officer’s motion to dismiss, Glik referenced the following district court cases that have recognized a general right to record matters of public interest: Demarest, supra page 22 (subject to time, place, and manner restrictions, there is a general First Amendment right to record matters of public concern); Alliance to End Repression v. City of Chicago, 2000 U.S. Dist. Lexis 6342 (N.D. Ill. May 8, 2000) (photographing the police may be First Amendment
27

Case: 10-1764 Document: 00116146365 Page: 35 Date Filed: 12/13/2010 Entry ID: 5511228
conduct); Connell v. Hudson, 733 F.Supp. 465 (D.N.H. 1990) (recognizing that, subject to reasonable restrictions, the media had a First Amendment right to gather news); Lambert, supra page 22 (dicta in parenthetical stating that there is a general right to “videotape events”); and Channel 10, Inc. supra page 24 (holding member of the media had First Amendment right of access to public places to gather news, write about, and photograph the events that occur in those places). AD 11-31.
As the Third Circuit held in Kelly, however, the general right to document matters of public concern is not sufficiently analogous to a right to videotape a police officer in the performance of his duties such that he would be on notice of a clearly established right. 622 F.3d at 262. Although there may be a broad First Amendment right to document matters of public interest, the contours of that right have not been defined by the Supreme Court or any other federal circuit courts in such a way as to explicitly include videotaping police officers within that broader right.
Furthermore, despite the Ninth Circuit’s decision in Fordyce and the handful of district court cases relied upon by Glik, the majority of federal circuit courts of appeal have held that there is no general right to videotape matters of public concern. Compare Rice v. Kempker, 374 F.3d 674, 678 (8th Cir. 2004) (“neither the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the
28

Case: 10-1764 Document: 00116146365 Page: 36 Date Filed: 12/13/2010 Entry ID: 5511228
public.”); and Whiteland Woods v. Township of West Whiteland, 193 F.3d 177, 184 (3rd Cir.1999) (holding that public has no right to videotape planning commission meetings that were required to be public); and United States v. Kerley, 753 F.2d 617, 621 (7th Cir.1985) (holding that public has no right to videotape a trial even when the defendant wishes it to be videotaped); and Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16, 23 (2d Cir.1984) (“There is a long leap, however, between a public right under the First Amendment to attend trial and a public right under the First Amendment to see a given trial televised.”); with Fordyce, 55 F.3d at 439 (recognizing general First Amendment right to film matters of public concern).
Moreover, the fact that the Massachusetts Wiretap Act proscribes audio/visual recordings that are done without the consent or knowledge of another, regardless of whether the person recorded is a public official carrying out her public duties, lends further credence that there is no clearly established First Amendment right to videotape police officers carrying out their public duties.
Based on the wealth of federal circuit court of appeals’ decisions that hold, unequivocally, that there is no clearly established right to videotape matters of public concern, it would stretch the bounds of reason to suggest that there is a clearly established sub-right to specifically videotape police activity. If there is no First Amendment right to videotape quintessential matters of public discourse,
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such as Supreme Court arguments, criminal trials, or public meetings, then it must follow that there is no First Amendment right to videotape unassuming police officers engaged in an arrest.
Based on the absence of a clearly established First Amendment right to record police officers in carrying out their public duties, the Officers are entitled to qualified immunity. In the alternative, the Officers are entitled to qualified immunity on the grounds that if there is held to be such a clearly established constitutional right, the Officers were reasonably mistaken in their belief that their actions would not have violated that right.
III. THE OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY ON GLIK’S CLAIM THAT THEY VIOLATED HIS FOURTH AMENDMENT RIGHTS.
The Officers are also entitled to qualified immunity of Glik’s Fourth Amendment13 claim as a reasonable police officer in the Officers’ position would have believed that there was probable cause to arrest Glik for violating the Massachusetts Wiretap Act, Massachusetts General Laws, Chapter 272, Section 99 (hereinafter referred to as the “M.G.L. c. 272, § 99”).
Police officers are entitled to qualified immunity if an objectively reasonable
13 The Fourth Amendment protects “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend., IV.
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officer would have believed that there was probable cause to arrest a suspect for a criminal offense. See Rivera v. Murphy, 979 F.2d 259, 262 (1st Cir. 1992). “Probable cause to arrest exists where the facts and circumstances within the police officer's knowledge and of which she had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the arrestee had committed or was committing an offense.” Sheehy v. Town of Plymouth, 191 F.3d 15, 19 (1st Cir.1999). This test “does not require the officers' conclusion to be ironclad, or even highly probable. Their conclusion that probable cause exists need only be reasonable.” Id. (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 11 (1st Cir.2004)). The officers are therefore entitled to qualified immunity “so long as the presence of probable cause is at least arguable.” Ricci v. Urso, 974 F.2d 5, 7 (1st Cir.1992). Consequently, police officers are protected by qualified immunity from reasonable mistakes as to whether probable cause exists. Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992) (internal citation omitted).
In this case, whether the Officers are entitled to qualified immunity requires an analysis of the cases interpreting M.G.L. c. 272, § 99, which provides, in relevant part:
Except as otherwise specifically provided in this section any person who willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or
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imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.
The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein. (emphasis added).
The Massachusetts Supreme Judicial Court’s decision in Commonwealth v.
Hyde, 750 N.E.2d 963 (Mass. 2001) provides guidance on what actions constitute
a criminal violation of M.G.L. c. 272, § 99. In that case Hyde, the criminal
defendant, was pulled over by two Abington police officers for a routine traffic
stop. Id. at 964. During the stop, and unbeknownst to the officers, Hyde had
activated a hand-held tape recorder and recorded the entire encounter. Id. at 965.
The exchange between Hyde and the police officers became heated, but eventually
the officers let Hyde go without a citation. Id. Six days later, Hyde went to the
Abington Police Department and filed a formal complaint for what he believed to
be unprofessional treatment during the traffic stop. Id. To substantiate his
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complaint, he produced the tape he had made during the stop. Id. As a result of the recording, Hyde was arrested and prosecuted on the grounds that he violated M.G.L. c. 272, § 99. Id. Hyde was tried and convicted by a jury. Id.
On appeal, the Supreme Judicial Court held that M.G.L. c. 272, § 99 prohibited all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge.” Id. at 967. (emphasis added). Because Hyde had recorded the police officers without their knowledge or permission, the Court determined that Hyde had indeed violated the statute. Id.
The Court also noted that had Hyde “simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight * * * his recording would not have been secret, and so would not have violated [M.]G.L. c. 272, § 99.” Id. at 971. In support of that statement, the Hyde Court cited and relied on its earlier decision in Commonwealth v. Jackson, which held that a recording is secret and violates M.G.L. c. 272, § 99 unless the party being recorded has “actual knowledge of the recording.” 349 N.E.2d 337, 340 (Mass. 1974) (emphasis added). See also Gouin v. Gouin, 249 F.Supp.2d 62, 79 (D.Mass. 2003) aff’d 07-1604 (1st Cir. 2007) (recording police officers without their knowledge is a violation of M.G.L. c. 272, § 99). Therefore, it is clear that a police officer has probable cause to arrest an individual for recording another
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individual when (1) he has not received permission to do so, or (2) the person who is being recorded does not have actual knowledge of the recording.
Based on the allegations made in the Complaint in this case, a reasonable police officer would think that there was probable cause to arrest Glik. According to Glik, he did not take any steps, other than holding his phone away from his body, to alert the Officers that he was recording them. JA 9. Glik further admits that he recorded them from ten feet away while they were struggling with a criminal suspect. JA 9. Once the Officers had completed that arrest, one of the Officers approached Glik and stated, “I think you have taken enough pictures,” to which Glik responded, “I am recording this. I saw you punch him.” JA 10. One of the other Officers then asked if Glik’s phone was recording audio, to which Glik answered yes. Based on that answer, Officer Savalis placed Glik under arrest. JA 10.
It should be abundantly clear from these facts that Glik willfully made an audio recording of the Officers without their actual knowledge. According to Glik’s own assertions, he stood quietly behind three police officers who were engaged in a difficult arrest. JA 9. Other than hold his cellular phone away from his body, Glik did nothing to inform the Officers of the recording. JA 9. Thus, Glik willfully recorded them without their knowledge in violation of M.G.L. c. 272, § 99.
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Like Hyde, Glik could have simply announced his intent to record, effectively placing the officers on notice of the recording, which would have made it lawful. Instead, based on Glik’s actions, or lack thereof, and the use of a cellular phone with an unapparent recording feature, Officers initially thought he was photographing them.14 JA 10. He was not placed under arrest at that point. JA 10. Indeed, the Officers did not place Glik under arrest until after he told the Officers that he had been recording them. JA 10. Based on that exchange, there is no doubt that the Officers did not have actual knowledge of Glik’s audio recording until after he had completed it. By that point, he had already violated M.G.L. c. 272, § 99.
Consequently, the Officers had probable cause to believe that Glik had violated M.G.L. c. 272, § 99. Alternatively, the officers were reasonably mistaken as to believe they had probable cause to arrest Glik based on their belief that it was a violation of M.G.L. c. 272, § 99 to record them without their knowledge or consent. In either circumstance, the Officers are entitled to qualified immunity.
14 Any contention that Glik’s recording was not a “willful interception,” as defined by M.G.L. c. 272, § 99, simply because Glik admitted to making the recording when asked by the Officers is inconsequential. The Officers needed only probable cause to believe that Glik willfully recorded them without their knowledge or consent, they were not required to ascertain, with certainty, Glik’s specific intent in order to have probable cause to arrest.
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A. Glik’s Suggested Interpretation Of M.G.L. c. 272, § 99 Would Render The Statute Meaningless.
In his opposition to the Defendants-Appellants’ motion to dismiss, Glik claimed that he was not secretly recording the Officers because he was holding his cellular phone out in plain view. AD 15. According to Glik, “[o]penly holding up a machine that transmits oral communications is no different, for purposes of state wiretapping law, than openly holding up a machine that record[s] [sic].” AD 18. Not only does this notion want for a single case in support, but it also cuts directly against the very foundation of the Massachusetts Wiretap Act—to prevent secret recordings with high-tech recording devices. Hyde, 750 N.E.2d at 974 (noting Legislature’s remark that the “uncontrolled development and unrestricted use of modern electronic devices” posed grave dangers to the “privacy of all citizens of the commonwealth.”) (emphasis added).
Glik attempts to hang his hat on the premise that his case is different than Hyde because unlike Hyde, who concealed his tape recorder, Glik held his recording device in plain view. AD 15. Glik’s recording, however, was akin to Hyde’s because in both cases the police officers were unaware of the fact that they were being recorded. Where the cases diverge is the way in which Hyde could have avoided criminal liability, but Glik could not—by holding his recording device in plain view. That is because holding a tape recorder, while sitting in the drivers’ seat of a car inches away from a police officer who is looking directly into
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that car with a flashlight, is diametrically opposed to holding out a cellular phone (in 2007), while standing ten feet behind police officers whose attention is focused solely on struggling with a suspected drug dealer who is attempting to swallow a plastic bag of heroin in a crowded public park. Quite simply, the “plain view” exception announced in Hyde presumes that whoever is being recorded will actually see the recording device which will in turn alert them to the fact he or she is being recorded. To interpret the Hyde decision any other way would be absurd.
Furthermore, the primary function of a tape recorder is to make audio recordings. That is common knowledge, and has been since M.G.L. c. 272, § 99 was written. Hyde, 750 N.E.2d at 974 n.7 (stating hand-held tape recorders were commonly used in 1967 when M.G.L. c. 272 § 99 was drafted). The primary function of a cellular phone, even in 2010, is undoubtedly to make phone calls. Obviously, nowadays, there are several other secondary functions that many cellular phones can perform—text messaging, video games, web surfing, emailing, visual phone calls, photography, video recording, audio recording, and audio/video recording, etc.
Holding a cellular phone in plain view may indicate that the holder is making an audio recording, but there are countless other reasons that an individual may hold out a cell phone. That person could be taking a photograph, searching for a cellular signal, reading text messages, making a video without sound, holding
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up the phone to allow someone on the other end of the phone to see or hear something, straining to view the screen due to far-sightedness, and countless other possibilities.
Glik avers that, despite the clear requirement of actual knowledge as set forth in Jackson and Hyde, that requiring subjective knowledge is an impracticable way to interpret M.G.L. c. 272 § 99. AD 16-17. That argument ignores the very purpose behind the statute’s origin—which was to prevent recordings that may occur in plain view, but in reality are clandestine. Hyde, page 974, supra. Glik refuses to acknowledge the fact that technology has advanced to such a degree in the past several decades that recording devices can be embedded in virtually anything – pens, glasses, watches, keychains, hats, etc. Any single one of those items can be used to record someone, be in plain sight of that individual, and yet still be secret.
Based on Glik’s suggested interpretation of M.G.L. c. 272, § 99, holding in plain view any device that can record is the same as holding in plain view a device that only records. AD 18-19. Moreover, it dispenses with any requirement that the person being recorded has to actually see the device and know of its recording feature. As such, Glik argues that it is irrelevant whether a person has actual knowledge that he or she is being recorded. In essence, this interpretation would eviscerate the protections of M.G.L. c. 272, § 99, as people would be able to record
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others, without their actual knowledge, by utilizing a device with unapparent recording capabilities as long as that device remains in plain view.
Certainly, despite Glik’s proffered interpretation of M.G.L. c. 272, § 99, he would not be agreeable to police officers utilizing such sophisticated recording devices, in plain view of course, with indistinct recording capabilities in their own investigations. Under Glik’s interpretation, Massachusetts police officers would be able to record civilians with state of the art recording technology that can be held in plain view without alerting citizens of its recording capabilities and thus, avoid the warrant requirements of M.G.L. c. 272, § 99.15
In sum, the proper interpretation of M.G.L. c. 272, § 99 is clear as set forth by Jackson, Hyde, and Gouin – it is a violation of that statute to make an audio recording of someone if that person does not have actual knowledge of the recording. It is clear from the face of the Complaint that Officers did not have actual knowledge of the recording until after it had been made. Consequently, the Officers had a reasonable basis to find probable cause, or at the very least were reasonably mistaken as to their finding of probable cause, to arrest Glik and are thus entitled to qualified immunity on Glik’s Fourth Amendment claim of false arrest. 15 M.G.L. c. 272, § 99 allows law enforcement officers to record others without their knowledge as long as they have reasonable suspicion that the individual they are recording is engaged in a designated offense with a nexus to organized crime. Under Glik’s suggested interpretation, this requirement would be obsolete.
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IV. GLIK’S MALICIOUS PROSECUTION CLAIM FAILS BECAUSE THE OFFICERS HAD PROBABLE CAUSE TO ARREST HIM FOR VIOLATING M.G.L. c. 272, § 99.
Glik also failed to plead a viable state law malicious prosecution claim. The elements of a common law cause of action for malicious prosecution are: (1) the commencement or continuation of a criminal proceeding against the eventual plaintiff at the behest of the eventual defendants; (2) the termination of the proceedings in favor of the accused; (3) an absence of probable cause for the charges; and (4) actual malice. Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001) (citing Correllas v. Viveiros, 572 N.E.2d 7, 10 (Mass. 1991)); See also Santiago v. Fenton, 891 F.2d 373 (1st Cir. 1989); Foley v. Polaroid Corp., 508 N.E.2d 72, 82-83 (Mass. 1987). An essential element of Glik’s malicious prosecution claim, therefore, is that the Officers lacked probable cause to arrest him. See Wynne v. Rosen, 464 N.E.2d 1348, 1350 ((Mass. 1984).
As discussed supra, in Section III, the Officers had probable cause to bring a criminal proceeding against Glik and he is therefore unable to prove the essential element of his malicious prosecution claim.
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CONCLUSION For the reasons stated within the above Argument, the DefendantsAppellants, John Cunniffe, Peter Savalis, and Jerome Hall-Brewster respectfully request that this Court reverse the District Court’s denial of their Motion to Dismiss and enter judgment as a matter of law in their favor on the basis of qualified immunity.

Date December 13, 2010

Respectfully submitted, DEFENDANTS, JOHN CUNNIFFE, PETER SAVALIS, and JEROME HALLBREWSTER By their attorneys:
William F. Sinnott Corporation Counsel
/s/ Ian D. Prior Ian D. Prior, BBO No. 655704 First Circuit Court of Appeals No. 1123736 Lisa Skehill Maki, BBO No. 675344 First Circuit Court of Appeals No. 1140641 Assistant Corporation Counsel City of Boston Law Department Room 615, City Hall Boston, MA 02201 (617) 635-4017 (Prior) (617) 635-4022 (Maki)

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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP.P. 32(a)(7)(C)
I, Lisa Skehill Maki, as counsel for the Defendants-Appellants John Cunniffe, Peter Savalis, and Jerome Hall-Brewster hereby certify, pursuant to Fed. R. App. P. 32(a)(7)(C), that the foregoing Brief of Appellants complies with the type-volume limitations as set forth within the requirements of Fed. R. Civ. P. 28.1(e)(2). Specifically, in reliance on the word count function of Microsoft Word, the word processing software used to create this Brief, excluding those portions of the Brief exempted from the count by Fed. R. App. P. 32(a)(7)(B)(iii), the Brief contains 8,603 words.

Date: December 13, 2010

/s/ Lisa Skehill Maki Lisa Skehill Maki (1st Cir. No. 1140641) Ian D. Prior (1st Cir. No. 1123736) Assistant Corporation Counsel City of Boston Law Department Room 615, City Hall Boston, MA 02201 (617) 635-4017 (Prior) (617) 635-4022 (Maki)

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CERTIFICATE OF SERVICE

I, Lisa Skehill Maki, counsel for the Defendants-Appellants, hereby certify

that on the below entered date, I served via electronic filing one (1) copy of the

Brief of Defendants-Appellants John Cunniffe, Peter Savalis, and Jerome Hall-

Brewster upon the Court. I further certify that I served one copy of the Brief of

Defendants-Appellants John Cunniffe, Peter Savalis, and Jerome Hall-Brewster

upon all attorneys of record for the Plaintiff-Appellee via electronic mail to,

DMilton@civil-rights-law.com,

Hfriedman@civil-rights-law.com,

and

swunsch@aclum.org.

Date: December 13, 2010

/s/ Ian D. Prior Ian D. Prior
/s/ Lisa Skehill Maki Lisa Skehill Maki

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No. 10-1764
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
SIMON GLIK Plaintiff-Appellee,
v. JOHN CUNNIFFE, in his individual capacity; PETER SAVALIS, in his individual
capacity; JEROME HALL-BREWSTER, in his individual capacity; CITY OF BOSTON
Defendants-Appellants
On Appeal from the United States District Court For the District of Massachusetts Civil Action No. 10-cv-10150-LTS
ADDENDUM TO BRIEF OF APPELLANTS JOHN CUNNIFFE, PETER SAVALIS, and JEROME HALL-BREWSTER

Case: 10-1764 Document: 00116146365 Page: 52 Date Filed: 12/13/2010 Entry ID: 5511228

ADDENDUM TABLE OF CONTENTS

DOCUMENTS

PAGE(S)

Electronic Order Denying Defendants’ Motion to Dismiss………………………………………………………………........AD 1

Transcript of June 8, 2010 Hearing on Defendants’ Motion to Dismiss……………………………………………………………………AD 2-10

Plaintiff’s Opposition to Defendants’ Motion to Dismiss……………………………………………………………………AD 11-31

Szymecki v. Houck No. 2:08-cv-142 (E.D.Va. December 17, 2008)………………………………………………………………………AD 32-40

ii

Case: 10-C17a6se4 1:D1o0c-cuvm-1e0n1t:500011N61E4F6f3o6r5DoPckaegteE: 5n3try DaFteileFdile0d6:/0182//21031/20010PagEent1ryoIfD1: 5511228

MIME−Version:1.0 From:ECFnotice@mad.uscourts.gov To:CourtCopy@madlei.mad.uscourts.gov Message−Id:3391185@mad.uscourts.gov Subject:Activity in Case 1:10−cv−10150−WGY Glik v. Cunniffe et al Order on Motion to Dismiss
Content−Type: text/html
United States District Court
District of Massachusetts
Notice of Electronic Filing

The following transaction was entered on 6/9/2010 at 3:14 PM EDT and filed on 6/8/2010

Case Name:

Glik v. Cunniffe et al

Case Number: Filer:

1:10−cv−10150−WGY

Document Number: No document attached

Docket Text: ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 6/8/2010 re [14] MOTION to Dismiss filed by Jerome Hall−Brewster, John Cunniffe, City of Boston, Peter J. Savalis ;The Court hears argument from the plaintiff and defendants. After hearing the Court rules denying [14] Motion to Dismiss; TheCourt holds a 16.1 conference and sets a schedule.( Final Pretrial Conference set for NO SOONER THAN 5/2/2011 02:00 PM before Judge William G. Young., Jury Trial set for RUNNING TRIAL LIST AS OF 6/6/2011 09:00 AM before Judge William G. Young.).The parties have 2 weeks to file a joint case management proposal. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Plaintiff's Counsel Milton, Freisman,Wunsch, Defendant's Counsel Skehill, Prior) (Smith, Bonnie)

1:10−cv−10150−WGY Notice has been electronically mailed to: Howard Friedman hfriedman@civil−rights−law.com, carmengk@civil−rights−law.com, hfriedman@rcn.com Sarah R. Wunsch swunsch@aclum.org Ian D. Prior ian.prior@cityofboston.gov David Milton dmilton@civil−rights−law.com, carmengk@civil−rights−law.com Lisa A. Skehill lisa.skehill@cityofboston.gov 1:10−cv−10150−WGY Notice will not be electronically mailed to:

AD1

Case: 10-1764CaDseoc1u:1m0e-ncvt:-10015106-1L4T6S365DoPcuamgee:n5t430 DaFtieledFi0le8d/:1102/1/103/2P0a1g0e 1 Eonf t9ry I1D: 5511228

1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

2

Civil Action

3

No. 10-10150-WGY

4

5 **************

SIMON GLIK,

*

6

*

Plaintiff,

*

7

*

v.

*

8

*

JOHN CUNNIFFE, et al.,

*

9

*

Defendants.. *

10 * * * * * * * * * * * * * *

MOTION HEARING

11

12

BEFORE: The Honorable William G. Young,

District Judge

13

14

APPEARANCES:

15

LAW OFFICES OF HOWARD FRIEDMAN, P.C.

16

(By David Milton, Esq. and Howard Friedman, Esq.)

90 Canal Street, 5th Floor, Boston, Massachusetts

17

02114-2022

- and -

18

SARAH R. WUNSCH, ESQ., American Civil

Liberties Union of Massachusetts, 211 Congress

19

Street, 3rd Floor, Boston, Massachusetts 02110,

on behalf of the Plaintiff

20

CITY OF BOSTON LAW DEPARTMENT (By Lisa A.

21

Skehill and Ian D. Prior, Assistant Corporation

Counsel), One City Hall Plaza, Room 615, Boston,

22

Massachusetts 02201, on behalf of the Defendants

23

1 Courthouse Way

24

Boston, Massachusetts

25

June 8, 2010

AD2

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1

THE CLERK: Calling Civil Action 10-10150, Glik v.

2

Boston.

3

THE COURT: Would counsel identify themselves.

4

MR. MILTON: David Milton, Law Offices of Howard

5

Friedman, for the plaintiff.

6

MR. FRIEDMAN: Howard Friedman for the plaintiff.

7

MS. WUNSCH: Sarah Wunsch for the plaintiff.

8

MS. SKEHILL: Lisa Skehill for the City of Boston,

9

John Cunniffe, Jerome Hall-Brewster, and Peter Savalis.

10

MR. PRIOR: Your Honor, Ian Prior for the

11

defendants.

12

THE COURT: All right. This is a motion to

13

dismiss. I think where you come closest is on qualified

14

immunity because their allegations, I have to take these

15

allegations as true.

16

MS. SKEHILL: Taking --

17

THE COURT: Go ahead.

18

MS. SKEHILL: Taking the plaintiff's allegations as

19

true, your Honor --

20

THE COURT: Which I have to do.

21

MS. SKEHILL: -- I think it shows, it demonstrates

22

that the plaintiff has no reasonable expectation to prove

23

that he was deprived of a constitutional right here. Under

24

Commonwealth v. Jackson, an SJC decision, it stated that

25

nonsecret recordings, the only way that they can be

AD3

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1

nonsecret is if the person being recorded has actual

2

knowledge.

3

Now, I stumbled upon this case last night and

4

there's nothing that the plaintiff has pled in his complaint

5

or that we believe that he would be able to prove that any

6

of the people that he recorded had actual knowledge.

7

THE COURT: Well, they arrested him thinking that

8

they were being recorded.

9

MS. SKEHILL: After a period of recording without

10

their actual knowledge. Once he admitted that he was in

11

fact recording them he admitted that he had violated the

12

anti-wiretapping statute. But prior to that they had no

13

actual knowledge whatsoever that he was recording them as

14

the facts in the complaint state as such.

15

THE COURT: All right. Now, suppose they get by

16

that. We'll just assume they get by that. What do you say

17

to qualified immunity?

18

MS. SKEHILL: At the very least the defendants are

19

entitled to qualified immunity because there is no clearly

20

established right to openly record individuals without

21

either their consent or actual knowledge.

22

THE COURT: Well, isn't that established here in

23

the First Circuit?

24

MS. SKEHILL: I don't believe so.

25

THE COURT: There may be some --

AD4

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1

MS. SKEHILL: To openly record? No, I don't

2

believe it characterizes openly record. In fact, the First

3

Circuit just upheld a decision of the district court, Gouin

4

v. Gouin, in 2005 that awarded the City of Boston damages in

5

which a civil rights plaintiff tape recorded the officers

6

while they were arresting him with a mini-handheld tape

7

recorder that was held out in the open. They thought

8

initially that it was a cell phone and did not realize that

9

it was a tape recorder until they got back to the booking

10

station, and they were awarded damages because they did not

11

know at the time that there was recording going on. So, the

12

defendants were awarded damages on their counterclaim and

13

that decision was upheld by the First Circuit in 2007.

14

THE COURT: All right, let's hear from the

15

plaintiffs. What do you say to that?

16

MR. MILTON: The First Circuit's opinion of Gouin

17

v. Gouin was not cited in the defendants' brief, nor in any

18

event is it apposite. The cases that we cite, there's a

19

laundry list of cases including First Circuit and District

20

of Massachusetts, Massachusetts cases upholding a First

21

Amendment right to record matters of public concern in a

22

public place where you have the right to be in as long as

23

you're doing so unobtrusively and in a nondisruptive manner.

24

So I think that --

25

THE COURT: So in effect, in effect, I have to

AD5

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1

declare the state statute unconstitutional as applied?

2

MR. MILTON: No, your Honor, because the state

3

statute does not apply. And that --

4

THE COURT: And why not?

5

MR. MILTON: And that is crystal clear from the

6

Commonwealth v. Hyde decision which held that the state

7

statute reaches secret recording of police officers, but in

8

explaining that holding the SJC said the outcome would have

9

been different and there would not have been a violation of

10

the statute had Michael Hyde held the recording device in

11

plain sight. Had he done so, the SJC said, the recording

12

would not have been secret. And Simon Glik did exactly what

13

the SJC had ruled six years earlier was permitted, he held

14

his recording device in plain sight. And he did not --

15

nothing he did was secret.

16

And if I can address the issue of actual knowledge.

17

The SJC has made clear both in Hyde and in the Rivera case

18

from 2005 that actual knowledge can be -- actual knowledge

19

is not the standard. The standard is whether or not the

20

recording is done secretly. In the Rivera case four

21

justices of the SJC said that a surveillance camera in a

22

convenience store that is recording audio and video is not a

23

violation of the wiretap statute regardless of whether the,

24

in this case the gun robber holding up a convenience store

25

is aware, regardless of whether he has actual knowledge,

AD6

Case: 10-1764CaDseoc1u:1m0e-ncvt:-10015106-1L4T6S365DoPcuamgee:n5t930 DaFtieledFi0le8d/:1102/1/103/2P0a1g0e 6 Eonf t9ry I6D: 5511228

1

that this video camera in plain sight is recording him.

2

THE COURT: Let me ask counsel for the city. Have

3

you got this case that's not in your brief?

4

MS. SKEHILL: I'm sorry, the Commonwealth v.

5

Jackson case? Yes.

6

THE COURT: Well, that and the other --

7

MS. SKEHILL: The Gouin v. Gouin case. I have them

8

both.

9

THE COURT: The Gouin case. May I see them.

10

MS. SKEHILL: Yes.

11

(Pause in proceedings.)

12

THE COURT: Well, this Gouin case is simply the

13

orders of the magistrate judge, it doesn't give you the

14

factual recitation. Where is --

15

MS. SKEHILL: I gave you a copy of the motion for

16

summary judgment.

17

THE COURT: Yes. Where is the --

18

MS. SKEHILL: I have the First Circuit docket.

19

THE COURT: The First Circuit docket?

20

MS. SKEHILL: Upholding the decision of the

21

magistrate judge's allowance of the defendant's motion for

22

summary judgment.

23

MR. MILTON: Neither of these were cited in the

24

brief and we would like a copy.

25

THE COURT: I understand that but I -- well, I have

AD7

Case: 10-1764CaDseoc1u:1m0e-ncvt:-10015106-1L4T6S365DoPcuamgee:n6t030 DaFtieledFi0le8d/:1102/1/103/2P0a1g0e 7 Eonf t9ry I7D: 5511228

1

no way to reason from these cases, or from Gouin anyway,

2

because I have no, I have no framework.

3

MS. SKEHILL: I apologize, your Honor. I just

4

discovered them yesterday.

5

THE COURT: Oh, I appreciate that. I appreciate

6

that.

7

It seems to me at least with respect to a motion to

8

dismiss that the plaintiff has the better of it here. And

9

it also seems to me that in the First Circuit, not

10

nationwide, in the First Circuit this right, this First

11

Amendment right publicly to record the activities of police

12

officers on public business is established.

13

MS. SKEHILL: Your Honor, if I may, the cases cited

14

by the plaintiff are narrowly stated as videotaping or

15

photographing. There's nothing that has been expanded to

16

say that there's established First Amendment right to record

17

the oral communications of others.

18

Now, his cite to Commonwealth v. Hyde, when the SJC

19

says that he could have held it out in plain sight, I think

20

what they were trying to say is holding it out in plain

21

sight when police officers are looking into a car and

22

there's just one person sitting in the driver's seat and he

23

holds out a tape recorder, it would have given them actual

24

knowledge that they were being taped.

25

THE COURT: I don't think actual knowledge is --

AD8

Case: 10-1764CaDseoc1u:1m0e-ncvt:-10015106-1L4T6S365DoPcuamgee:n6t130 DaFtieledFi0le8d/:1102/1/103/2P0a1g0e 8 Eonf t9ry I8D: 5511228

1

they're presumed to know if someone is holding the device

2

out. The motion to dismiss is denied.

3

Now, we need to figure out when the case is going

4

to go to trial, and I'll give you two weeks to file a joint

5

proposed case management schedule.

6

When do you want to go to trial? Plaintiff?

7

MR. MILTON: One year.

8

THE COURT: That will take us to June 2011.

9

Satisfactory to the city?

10

MS. SKEHILL: Yes, your Honor.

11

THE COURT: All right. It's on the running trial

12

list, June 2011, and two weeks to file a joint proposed case

13

management schedule.

14

MR. MILTON: Thank you, your Honor.

15

THE COURT: That's the order.

16

(Whereupon the matter concluded.)

17

18

19

20

21

22

23

24

25

AD9

Case: 10-1764CaDseoc1u:1m0e-ncvt:-10015106-1L4T6S365DoPcuamgee:n6t230 DaFtieledFi0le8d/:1102/1/103/2P0a1g0e 9 Eonf t9ry I9D: 5511228

1

C E R T I F I C A T E

2

3

4

I, Donald E. Womack, Official Court Reporter for

5

the United States District Court for the District of

6

Massachusetts, do hereby certify that the foregoing pages

7

are a true and accurate transcription of my shorthand notes

8

taken in the aforementioned matter to the best of my skill

9

and ability.

10

11

12

13

/S/ DONALD E. WOMACK 8-10-2010

14

____________________________

DONALD E. WOMACK

15

Official Court Reporter

P.O. Box 51062

16

Boston, Massachusetts 02205-1062

womack@megatran.com

17

18

19

20

21

22

23

24

25

AD10

Case: 10-176C4 asDeo1c:u1m0-ecnvt-:1000115106-1L4T6S36D5ocPuamgen: t6137 DFaitledF0ile5d/1:41/21/013/P2a0g1e0 1 oEfn2tr1y ID: 5511228 AD11

Case: 10-176C4 asDeo1c:u1m0-ecnvt-:1000115106-1L4T6S36D5ocPuamgen: t6147 DFaitledF0ile5d/1:41/21/013/P2a0g1e0 2 oEfn2tr1y ID: 5511228 AD12

Case: 10-176C4 asDeo1c:u1m0-ecnvt-:1000115106-1L4T6S36D5ocPuamgen: t6157 DFaitledF0ile5d/1:41/21/013/P2a0g1e0 3 oEfn2tr1y ID: 5511228 AD13

Case: 10-176C4 asDeo1c:u1m0-ecnvt-:1000115106-1L4T6S36D5ocPuamgen: t6167 DFaitledF0ile5d/1:41/21/013/P2a0g1e0 4 oEfn2tr1y ID: 5511228 AD14

Case: 10-176C4 asDeo1c:u1m0-ecnvt-:1000115106-1L4T6S36D5ocPuamgen: t6177 DFaitledF0ile5d/1:41/21/013/P2a0g1e0 5 oEfn2tr1y ID: 5511228 AD15

Case: 10-176C4 asDeo1c:u1m0-ecnvt-:1000115106-1L4T6S36D5ocPuamgen: t6187 DFaitledF0ile5d/1:41/21/013/P2a0g1e0 6 oEfn2tr1y ID: 5511228 AD16

Case: 10-176C4 asDeo1c:u1m0-ecnvt-:1000115106-1L4T6S36D5ocPuamgen: t6197 DFaitledF0ile5d/1:41/21/013/P2a0g1e0 7 oEfn2tr1y ID: 5511228 AD17

Case: 10-176C4 asDeo1c:u1m0-ecnvt-:1000115106-1L4T6S36D5ocPuamgen: t7107 DFaitledF0ile5d/1:41/21/013/P2a0g1e0 8 oEfn2tr1y ID: 5511228 AD18

Case: 10-176C4 asDeo1c:u1m0-ecnvt-:1000115106-1L4T6S36D5ocPuamgen: t717 DFaitledF0ile5d/1:41/21/013/P2a0g1e0 9 oEfn2tr1y ID: 5511228 AD19

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t7127 DFailetedF0i5le/d1:41/120/13P/2a0g1e010 Eonf t2r1y ID: 5511228 AD20

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t7137 DFailetedF0i5le/d1:41/120/13P/2a0g1e011 Eonf t2r1y ID: 5511228 AD21

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t7147 DFailetedF0i5le/d1:41/120/13P/2a0g1e012 Eonf t2r1y ID: 5511228 AD22

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t7157 DFailetedF0i5le/d1:41/120/13P/2a0g1e013 Eonf t2r1y ID: 5511228 AD23

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t7167 DFailetedF0i5le/d1:41/120/13P/2a0g1e014 Eonf t2r1y ID: 5511228 AD24

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t7177 DFailetedF0i5le/d1:41/120/13P/2a0g1e015 Eonf t2r1y ID: 5511228 AD25

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t7187 DFailetedF0i5le/d1:41/120/13P/2a0g1e016 Eonf t2r1y ID: 5511228 AD26

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t7197 DFailetedF0i5le/d1:41/120/13P/2a0g1e017 Eonf t2r1y ID: 5511228 AD27

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t8107 DFailetedF0i5le/d1:41/120/13P/2a0g1e018 Eonf t2r1y ID: 5511228 AD28

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t8117 DFailetedF0i5le/d1:41/120/13P/2a0g1e019 Eonf t2r1y ID: 5511228 AD29

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t8127 DFailetedF0i5le/d1:41/120/13P/2a0g1e020 Eonf t2r1y ID: 5511228 AD30

Case: 10-176C4asDeo1c:1u0m-ecvn-t1: 0105101-6L1T4S636D5ocPumageen:t8137 DFailetedF0i5le/d1:41/120/13P/2a0g1e021 Eonf t2r1y ID: 5511228 AD31

Case: 10-1C7a6s4e 2D:0o8c-ucmv-e0n0t1: 4020-1H1C61M4-6T3E6M5 DPaogcuem: 8e4nt 1D0a2te Filed:1122//1173//028010PagEen1tryofID9: 5511228 AD32

Case: 10-1C7a6s4e 2D:0o8c-ucmv-e0n0t1: 4020-1H1C61M4-6T3E6M5 DPaogcuem: 8e5nt 1D0a2te Filed:1122//1173//028010PagEen2tryofID9: 5511228 AD33

Case: 10-1C7a6s4e 2D:0o8c-ucmv-e0n0t1: 4020-1H1C61M4-6T3E6M5 DPaogcuem: 8e6nt 1D0a2te Filed:1122//1173//028010PagEen3tryofID9: 5511228 AD34

Case: 10-1C7a6s4e 2D:0o8c-ucmv-e0n0t1: 4020-1H1C61M4-6T3E6M5 DPaogcuem: 8e7nt 1D0a2te Filed:1122//1173//028010PagEen4tryofID9: 5511228 AD35

Case: 10-1C7a6s4e 2D:0o8c-ucmv-e0n0t1: 4020-1H1C61M4-6T3E6M5 DPaogcuem: 8e8nt 1D0a2te Filed:1122//1173//028010PagEen5tryofID9: 5511228 AD36

Case: 10-1C7a6s4e 2D:0o8c-ucmv-e0n0t1: 4020-1H1C61M4-6T3E6M5 DPaogcuem: 8e9nt 1D0a2te Filed:1122//1173//028010PagEen6tryofID9: 5511228 AD37

Case: 10-1C7a6s4e 2D:0o8c-ucmv-e0n0t1: 4020-1H1C61M4-6T3E6M5 DPaogcuem: 9e0nt 1D0a2te Filed:1122//1173//028010PagEen7tryofID9: 5511228 AD38

Case: 10-1C7a6s4e 2D:0o8c-ucmv-e0n0t1: 4020-1H1C61M4-6T3E6M5 DPaogcuem: 9e1nt 1D0a2te Filed:1122//1173//028010PagEen8tryofID9: 5511228 AD39

Case: 10-1C7a6s4e 2D:0o8c-ucmv-e0n0t1: 4020-1H1C61M4-6T3E6M5 DPaogcuem: 9e2nt 1D0a2te Filed:1122//1173//028010PagEen9tryofID9: 5511228 AD40

Case: 10-1764 Document: 00116146367 Page: 1 Date Filed: 12/13/2010 Entry ID: 5511228

United States Court of Appeals
For the First Circuit

No. 10-1764

SIMON GLIK

Plaintiff - Appellee

v.

JOHN CUNNIFFE, in his individual capacity; PETER J. SAVALIS, in his individual capacity;
JEROME HALL-BREWSTER, in his individual capacity; CITY OF BOSTON

Defendants - Appellants

APPELLEE’S BRIEFING NOTICE Issued: December 13, 2010

Appellee’s brief must be filed by January 17, 2011.
The deadline for filing appellant’s reply brief will run from service of appellee’s brief in accordance with Fed. R. App. P. 31 and 1st Cir. R. 31.0. Parties are advised that extensions of time are not normally allowed without timely motion for good cause shown.
Presently, it appears that this case may be ready for argument or submission at the coming April, 2011 session.
The First Circuit Rulebook, which contains the Federal Rules of Appellate Procedure, First Circuit Local Rules and First Circuit Internal Operating Procedures, is available on the court’s website at www.ca1.uscourts.gov. Please note that the court’s website also contains tips on filing briefs, including a checklist of what your brief must contain.
Failure to file a brief in compliance with the federal and local rules will result in the issuance of an order directing the party to file a conforming brief and could result in the appellee not being heard at oral argument. See 1st Cir. R. 3 and 45.
Margaret Carter, Clerk

Case: 10-1764 Document: 00116146367 Page: 2 Date Filed: 12/13/2010 Entry ID: 5511228
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT John Joseph Moakley United States Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210 Case Manager: Christine Preytis - (617) 748-9026
cc: Howard Friedman David Milton Ian D. Prior Lisa A. Skehill Sarah R. Wunsch

 
 Case: 10-1764 Document: 00116159851 Page: 1 Date Filed: 01/18/2011 Entry ID: 5519712
No. 10-1764
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
_________________________________
SIMON GLIK, Plaintiff-Appellee,
v. JOHN CUNNIFFE, in his individual capacity; PETER SAVALIS, in his individual capacity; JEROME HALL-BREWSTER, in his individual capacity;
CITY OF BOSTON, Defendants-Appellants. _________________________________
Appeal from the U.S. District Court for the District of Massachusetts Civil Action No. 10-cv-10150-LTS
_________________________________
BRIEF OF PLAINTIFF-APPELLEE SIMON GLIK _________________________________

Sarah Wunsch ACLU of Massachusetts 211 Congress Street, 3rd floor Boston, MA 02110 (617) 482-3170, ext. 323

Howard Friedman David Milton Law Offices of Howard Friedman, P.C. 90 Canal Street, 5th Floor Boston, MA 02114-2022 (617) 742-4100

Case: 10-1764 Document: 00116159851 Page: 2 Date Filed: 01/18/2011 Entry ID: 5519712
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... iii
JURISDICTIONAL STATEMENT .........................................................................1
STATEMENT OF ISSUES PRESENTED FOR REVIEW................................2
STATEMENT OF THE CASE.................................................................................3
STATEMENT OF FACTS .........................................................................................5
SUMMARY OF THE ARGUMENT .......................................................................6
ARGUMENT ................................................................................................................8
I. PROPER DEVELOPMENT OF THE LAW REQUIRES THAT THE COURT RULE ON THE IMPORTANT, RECURRENT CONSTITUTIONAL QUESTION PRESENTED......8
II. THE DISTRICT COURT CORRECTLY DENIED DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDMENT CLAIM .................................................................11
A. Defendants Violated the First Amendment by Arresting Plaintiff for Openly Recording Police Officers Carrying Out Their Duties in a Public Place....................................................11
B. This Court’s Decision in Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999), and a Wealth of Other Authority Had Clearly Established the Right to Record Matters of Public Interest, Including Police Officers in the Course of Their Duties, at the Time of Plaintiff’s Arrest. ..........................................17
1. Iacobucci recognized a First Amendment right to record public officials on public property. ......................18
2. A consensus of persuasive authority within and outside this circuit had clearly established the right to record matters of public interest at the time of Plaintiff’s arrest. ........................................................................19
i

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3. Cases decided after Plaintiff’s arrest, from outside the First Circuit, finding that the law is not clearly established in other circuits, have no bearing on this case. ............................................................................................20
a. The cases cited by Defendants do not hold that there is no First Amendment right to record the police . .........................................................20
b. Post-2007 cases do not affect what a reasonable police officer would have known in 2007 . ..............21
c. The Third Circuit’s analysis of the “right to videotape police officers during traffic stops” in Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), is inapplicable and unpersuasive. .................................................................22
III. THE DISTRICT COURT PROPERLY DENIED DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDMENT CLAIM . ............................................................................................................25
A. Plaintiff States a Fourth Amendment Claim Because Holding a Cellphone in Plain View Did Not Give Rise to Probable Cause to Arrest Him for “Secretly” Recording ..............................26
B. The Officers Had Fair Warning That They Could Not Lawfully Arrest Plaintiff for Violating the Massachusetts Wiretap Statute. ....................................................................................32
IV. THIS COURT LACKS JURISDICTION TO CONSIDER DEFENDANTS’ APPEAL AS TO PLAINTIFF’S STATE LAW MALICIOUS PROSECUTION CLAIM. ..................................................34
CONCLUSION. .........................................................................................................34
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ................................36
CERTIFICATE OF SERVICE ...............................................................................37
ii

Case: 10-1764 Document: 00116159851 Page: 4 Date Filed: 01/18/2011 Entry ID: 5519712

TABLE OF AUTHORITIES

CASES

Page(s)

Alliance to End Repression v. City of Chicago, Nos. 74 C 3268, 75 C 3295, 2000 U.S. Dist. LEXIS 6342, (N.D. Ill. May 8, 2000) .................................................................................. 13, 20

Beck v. Ohio, 379 U.S. 89 (1964) ................................................................................................26

Bergeron v. Cabral, 560 F.3d 1 (1st Cir. 2009) ....................................................................................18

Branzburg v. Hayes, 408 U.S. 665 (1972) ..............................................................................................12

Brosseau v. Haugen, 543 U.S. 194 (2004) ..............................................................................................21

Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634 (D. Minn. 1972) ......................................................................13

City of Houston v. Hill, 482 U.S. 451 (1987) ....................................................................................... 12, 17

Commonwealth v. Ennis, 439 Mass. 64, 785 N.E.2d 677 (2003)................................................ 8, 27-28, 33

Commonwealth v. Hyde, 434 Mass. 594, 750 N.E.2d 963 (2001) ......................................8, 25, 26-27, 33

Commonwealth v. Jackson, 370 Mass. 502, N.E.2d 337 (1976) .....................................................................29

Commonwealth v. Rivera, 445 Mass. 119, N.E.2d 1113 (2005) .......................................................28-29, 33

Connell v. Hudson, 733 F. Supp. 465 (D.N.H. 1990) ............................................................13, 23-24

iii

Case: 10-1764 Document: 00116159851 Page: 5 Date Filed: 01/18/2011 Entry ID: 5519712
Demarest v. Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82, 94 (D. Mass. 2002) .........................................13, 15, 23, 24
DeMayo v. Nugent, 517 F.3d 11 (1st Cir. 2008) ........................................................................... 23, 24
First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978) ..............................................................................................12
Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) ....................................................................13, 23, 24
Garnier v. Rodriguez, 506 F.3d 22 (1st Cir. 2007) ..............................................................................1, 34
Garrison v. Louisiana, 379 U.S. 64 (1964) ................................................................................................11
Gentile v. State Bar of Nev., 501 U.S. 1030 (1991) ............................................................................................12
Gouin v. Gouin, 249 F. Supp. 2d 62 (D. Mass. 2003) ...................................................................30
Gravolet v. Tassin, No. 08-3646, 2009 U.S. Dist. LEXIS 45876 (E.D. La. June 2, 2009) ... 21, 24
Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508 (1st Cir. 2009) ................................................................................18
Hall v. Ochs, 817 F.2d 920 (1st Cir. 1987) ................................................................................32
Hatch v. Dep't for Children, 274 F.3d 12 (1st Cir. 2001) ..................................................................................21
Hope v. Pelzer, 536 U.S. 730 (2002) ..............................................................................................22
iv

Case: 10-1764 Document: 00116159851 Page: 6 Date Filed: 01/18/2011 Entry ID: 5519712
Hustler Magazine v. Falwell, 485 U.S. 46 (1988) ................................................................................................11
Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) .....................................6, 7, 12-13, 17-19, 21, 32-33
Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) ....................................................................21, 22-24
Lambert v. Polk County, 723 F. Supp. 128 (S.D. Iowa 1989) ............................................................. 13, 23
Limone v. Condon, 372 F.3d 39 (1st Cir. 2004) .................................................................................20
Maldonodo v. Fontanes, 568 F.3d 263 (1st Cir. 2009) ......................................................................... 17, 20
Matheny v. County of Allegheny, No. 09-1070, 2010 U.S. Dist. Lexis 24189 (W.D. Pa. Mar. 16, 2010) ... 21, 24
Newman v. Massachusetts, 884 F.2d 19 (1st Cir. 1989) ..................................................................................21
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009) ...........................................................6, 9-10
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) ................................................................................................14
Rice v. Kempker, 374 F.3d 675 (8th Cir. 2004) ...............................................................................14
Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa. 2005) .................................................................16
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) ..............................................................................................17
Rotkiewicz v. Sadowsky, 431 Mass. 748, 730 N.E.2d 282 (2000) .............................................................16
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Case: 10-1764 Document: 00116159851 Page: 7 Date Filed: 01/18/2011 Entry ID: 5519712
Santiago v. Fenton, 891 F.2d 373 (1st Cir. 1989) ................................................................................26
Saucier v. Katz, 533 U.S. 194 (2001) ................................................................................................9
Schell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969) ...................................................................... 13, 20
Scott v. Harris, 550 U.S. 372 (2007) ..............................................................................................15
Sheehy v. Town of Plymouth, 191 F.3d 15 (1st Cir. 1999) ..................................................................................32
Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) ................................................... 7, 11, 12, 13, 20
Stanley v. Georgia, 394 U.S. 557 (1969) ...............................................................................................12
Suboh v. Dist. Attorney's Office, 298 F.3d 81 (1st Cir. 2002) ......................................................................18, 24-25
Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009) ............................................................ 21, 24
Tarus v. Borough of Pine Hill, 189 N.J. 497, 916 A.2d 1036 (2007) ...................................................................15
United States v. Kerley, 753 F.2d 617 (7th Cir. 1985) ...............................................................................14
United States v. Lanier, 520 U.S. 259 (1997) ..............................................................................................23
Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16 (2d Cir. 1984) ...................................................................................14
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Case: 10-1764 Document: 00116159851 Page: 8 Date Filed: 01/18/2011 Entry ID: 5519712
Whiteland Woods, L.P., v. Twp. of West Whiteland, 193 F.3d 177 (3d Cir. 1999) ......................................................................... 14, 15
CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES
42 U.S.C. § 1983 ........................................................................................................1, 3 Mass. Gen. Laws. ch. 12, § 11I....................................................................................3 Mass. Gen. Laws ch. 268, § 17 ...............................................................................3, 5 Mass. Gen. Laws ch. 272 § 53 .................................................................................3, 5 Mass. Gen. Laws ch. 272, § 99 .....................................................2, 3, 5, 8, 25-27, 31
OTHER AUTHORITIES
Jim Dwyer, Videos Challenge Hundreds of Convention Arrests, N.Y. Times, April 12, 2005, at A1 ...........................................................................16 Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335 (2011) ........................9, 15 Lisa A. Skehill, Note: Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 43 Suffolk U. L. Rev. 981, 1012 (2009) ...................................................................30
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Case: 10-1764 Document: 00116159851 Page: 9 Date Filed: 01/18/2011 Entry ID: 5519712
JURISDICTIONAL STATEMENT Plaintiff agrees with Defendants that this Court has jurisdiction over the interlocutory appeals of the individual police officers, Defendants-Appellants Cunniffe, Savalis, and Hall-Brewster (the “individual Defendants”), from the district court’s denial of their motion to dismiss Plaintiff’s First and Fourth Amendment claims on qualified immunity grounds. However, this Court lacks jurisdiction to review the district court’s denial of the individual Defendants’ motion to dismiss Plaintiff’s state law malicious prosecution claim, which is a nonappealable interlocutory order. See Garnier v. Rodriguez, 506 F.3d 22, 25 (1st Cir. 2007). The Court should dismiss Defendants’ appeal concerning the malicious prosecution claim. The Court should also dismiss for lack of jurisdiction Defendant City of Boston’s appeal. Defendants incorrectly state that the City is not a party to this appeal. Defs.’ Br. 4 n.1. The City filed a notice of appeal in the district court, J.A. 3, and has appeared in this Court. Defendants now acknowledge the Court lacks jurisdiction to review the denial of the City’s motion to dismiss Plaintiff’s municipal liability claim under 42 U.S.C. § 1983. Defs.’ Br. 4 n.1.
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STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1. Should this Court follow the traditional two-step sequence for
determining qualified immunity and rule first on the merits of the important, recurrent constitutional question of whether individuals have the right to openly record the police in public? 2. Did the district court correctly deny Defendants’ motion to dismiss Plaintiff’s First Amendment claim on qualified immunity grounds, because (a) the complaint states a claim for violation of the First Amendment right to openly record police officers in public acting in the course of their duties and (b) this right was clearly established in the First Circuit at the time of Plaintiff’s arrest? 3. Did the district court correctly deny Defendants’ motion to dismiss Plaintiff’s Fourth Amendment claim for false arrest on qualified immunity grounds, because a reasonable police officer would have been aware that holding a cellphone in plain sight to make an audiovisual recording on Boston Common did not constitute “secretly record[ing]” in violation of the Massachusetts wiretap statute, Mass. Gen. Laws ch. 272, § 99(B)(4)?
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STATEMENT OF THE CASE On October 1, 2007, Plaintiff Simon Glik held out his cellphone and made an audiovisual recording of three Boston police officers, Defendants John Cunniffe, Peter J. Savalis, and Jerome Hall-Brewster, making an arrest on Boston Common. J.A. 7. Though Plaintiff held the cellphone in plain view and did not interfere with the arrest, Defendants arrested Plaintiff for violating the Massachusetts wiretap statute, Mass. Gen. Laws ch. 272, § 99, as well as aiding the escape of a prisoner, Mass. Gen. Laws ch. 268, § 17, and disturbing the peace, Mass. Gen. Laws ch. 272 § 53. J.A. 9-11. The Commonwealth voluntarily dismissed the aiding the escape charge, and the Boston Municipal Court dismissed the remaining two charges by written decision dated February 1, 2008. J.A. 11, 17-20. Plaintiff brought suit under 42 U.S.C. § 1983 against the three officers and the City of Boston on February 1, 2010. J.A. 1. The complaint alleges that the individual Defendants violated the First and Fourth Amendments by arresting him for openly recording police officers carrying out their duties in public, and that the City’s policies and customs caused these violations. J.A. 1, 14-15. The complaint also brings state law claims against the individual officers for malicious prosecution and violation of the Massachusetts Civil Rights Act, Mass. Gen. Laws. ch. 12, § 11I. J.A. 14-15.
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All Defendants moved to dismiss the complaint in its entirety on April 22, 2010. J.A. 2. Defendants argued that the complaint failed to state a claim for violation of the First Amendment because no right to document police conduct exists. Defs.’ Mem. Supp. Mot. Dismiss 5. The individual Defendants also asserted qualified immunity on the grounds that any such First Amendment right was not clearly established. Id. at 9. Defendants also argued for qualified immunity with respect to Plaintiff’s Fourth Amendment claim on the grounds that there was probable cause to arrest him under the wiretap statute, id. at 6, or in the alternative, a reasonable officer could have mistakenly believed there was, id. at 14.
The district court denied the motion in its entirety from the bench on June 8, 2010. Defs.’ Br. AD 9. The court stated that “in the First Circuit, this First Amendment right publicly to record the activities of police officers on public business is clearly established.” Defs.’ Br. AD 8. The court rejected Defendants’ argument that a violation of the Massachusetts wiretap statute occurs unless the person being recorded has “actual knowledge” of the recording, stating that he or she is “presumed to know if someone is holding the [recording] device out.” Defs.’ Br. AD 8-9.
All Defendants filed a notice of appeal. J.A. 3. The City of Boston now concedes that the Court lacks jurisdiction over its appeal. Defs.’ Br. 4 n.1.
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Case: 10-1764 Document: 00116159851 Page: 13 Date Filed: 01/18/2011 Entry ID: 5519712
STATEMENT OF FACTS On October 1, 2007, Plaintiff Simon Glik, an attorney, was walking on Tremont Street from Park Street toward Boylston Street, on the sidewalk next to the Boston Common. J.A. 8, 9. He saw three Boston police officers, Defendants John Cunniffe, Peter J. Savalis, and Jerome Hall-Brewster, arresting a young man near a park bench. J.A. 9. Plaintiff heard another young man standing nearby say something like, “You are hurting him, stop.” J.A. 9. Plaintiff was concerned the officers were using excessive force. J.A. 9. Plaintiff stopped near the bench and took out his cell phone so that he could document the conduct of the police officers. J.A. 9. His phone recorded video with sound. J.A. 7, 10. Plaintiff stood about ten feet away and recorded the incident. J.A. 9. He did not interfere with the officers’ actions. J.A. 9. After the suspect was in handcuffs, one of the Defendants said to Plaintiff, “I think you have taken enough pictures.” J.A. 10. Plaintiff responded, “I am recording this. I saw you punch him.” J.A. 10. One of the Defendants then approached Plaintiff and asked if the phone recorded audio. J.A. 10. Plaintiff said that it did. J.A. 10. Defendants arrested Plaintiff and took him into custody. J.A. 10. Plaintiff was charged with violating the wiretap statute, Mass. Gen. Laws ch. 272, § 99, aiding the escape of a prisoner, Mass. Gen. Laws ch. 268, § 17, and disturbing the peace, Mass. Gen. Laws ch. 272 § 53. J.A. 11. The
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Commonwealth voluntarily dismissed the aiding an escape charge for lack of probable cause. J.A. 11.
On February 1, 2008, a judge of the Boston Municipal Court dismissed the remaining charges for lack of probable cause. J.A. 11. The court dismissed the illegal wiretapping charge because the statute and case law require that the unlawful recording be secret and the police officers admitted Mr. Glik was publicly and openly recording them. J.A. 11, 18-19. The court dismissed the charge of disturbing the peace, ruling that while the “officers were unhappy they were being recorded during an arrest . . . their discomfort does not make a lawful exercise of a First Amendment right a crime.” J.A. 11, 20.
SUMMARY OF ARGUMENT 1. In this qualified immunity appeal, the Court should exercise its discretion under Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009), to decide first whether the complaint alleges a First Amendment violation. Assuming arguendo that Plaintiff’s First Amendment right to openly record the police carrying out their duties in public was not clearly established, the Court should affirm the existence of such a right in order to provide guidance to individuals and the police. 2. The complaint states a First Amendment claim. A long line of cases, including this Court’s opinion in Iacobucci v. Boulter, 193 F.3d 14, 25 (1st
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Case: 10-1764 Document: 00116159851 Page: 15 Date Filed: 01/18/2011 Entry ID: 5519712
Cir. 1999), has recognized the First Amendment right to document, through photography and video, the activities of public officials on public property. Because Plaintiff openly recorded police officers in a public place where he had a right to be, and he did not interfere with any police activities, the First Amendment protected his recording.
Defendants arrested Plaintiff for videotaping them because they were concerned that his footage would portray them in a bad light. By punishing Plaintiff because of the content of his recording, and because of his perceived criticism of them, Defendants violated the First Amendment.
Denial of qualified immunity was proper because the First Amendment right to openly record the police in public was clearly established at the time of Plaintiff’s arrest. In Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999), this Court stated that an individual had a First Amendment right to film a group of public officials engaged in conversation in a public area of a public building. Several other circuit courts and numerous district courts had also recognized a right to record matters of public interest, including the right to videotape the police. See, e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).
Recent decisions from other jurisdictions, decided after Plaintiff’s arrest, finding that the law is not clearly established in other circuits, have no bearing on the state of the law in the First Circuit at the time of Plaintiff’s arrest.
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3. The complaint states a claim for false arrest. Defendants lacked probable cause to arrest Plaintiff because holding a cellphone in plain sight to make a recording does not violate the Massachusetts wiretap statute, which prohibits only “secret[]” recording. Mass. Gen. Laws ch. 272, § 99(B)(4); see Commonwealth v. Hyde, 434 Mass. 594, 605, 750 N.E.2d 963, 971 (2001). Nor was there probable cause to believe that Plaintiff – who openly held out his cellphone on Boston Common – had “willfully” made a secret recording, another element of the crime. Mass. Gen. Laws ch. 272, § 99(C)(1); see Commonwealth v. Ennis, 439 Mass. 64, 68-69, 785 N.E.2d 677, 681 (2003).
The district court properly denied qualified immunity on Plaintiff’s Fourth Amendment claim because Hyde and Ennis, and the wide body of First Amendment law discussed in Section II, gave fair warning to Defendants that arresting Plaintiff for openly recording them on Boston Common was unlawful.
ARGUMENT I. PROPER DEVELOPMENT OF THE LAW REQUIRES THAT
THE COURT RULE ON THE IMPORTANT, RECURRENT CONSTITUTIONAL QUESTION PRESENTED The complaint raises the important and recurrent constitutional issue of whether individuals have the First Amendment right to openly record the police in public. Recording the police is commonplace given the proliferation
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of handheld videotaping devices, including cellphones.1 Assuming arguendo there is no settled constitutional rule to guide police and individuals in this area, it is important to establish one.
Defendants urge this Court to skip the first part of the test for qualified immunity, namely, whether the allegations of the complaint state a constitutional violation. Defendants seek a ruling limited to a finding that the First Amendment right in question was not clearly established. None of the reasons advanced by Defendants for refusing to decide the constitutional issue is persuasive.
Even though the Supreme Court in Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009), gave courts discretion to decide first whether the alleged violation of law was clearly established, the Court reaffirmed that that the sequence set forth in Saucier v. Katz, 533 U.S. 194 (2001), is “often appropriate” and “promotes the development of constitutional precedent.” Pearson, 129 S. Ct. at 818. Defendants cite to four recent opinions bypassing the “violation” question and granting qualified immunity based on a finding that the right to record the police, as defined in those cases, was not clearly established. Defs.’
1 See, e.g., Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 350 (2011) (“[P]olice abuse captured by the cameras of bystanding videographers, followed by public broadcast of the footage, has become a regular feature of our public life and the underpinning for effective demands for redress.”)(collecting examples).
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Br. 20, 22, 25-26. If other courts were to continue in this vein, the right would never be clearly established.
The district court in this case reached the issue. Judge Young stated, “[I]n the First Circuit, this First Amendment right publicly to record the activities of police officers on public business is established.” Defs.’ Br. AD 8. Implicit in this statement is that the complaint states a claim for violation of this right. If it did not, the district court would have been obliged to grant Defendants’ motion to dismiss.
Although this case is at the pleadings stage, it is not a case “where the precise factual basis for the plaintiff’s claim or claims [is] hard to identify.” Pearson, 129 S. Ct. at 819. The complaint details the factual basis for Plaintiff’s claims with specificity, describing the encounter between Plaintiff and Defendants from beginning to end. J.A. 10-11.
Because people commonly videotape the police, this is not a case “where the constitutional questions presented are heavily fact-bound, minimizing their precedential value.” Maldonodo v. Fontanes, 568 F.3d 263, 270 (1st Cir. 2009). Defendants concede as much by citing to cases with facts they claim are “strikingly similar,” Defs.’ Br. 22, and “nearly identical,” Defs.’ Br. 26, to the facts of this case.
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Because the complaint raises a recurrent First Amendment issue with significance beyond this case, this Court should decide the constitutional question first. II. THE DISTRICT COURT CORRECTLY DENIED
DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDMENT CLAIM A. Defendants Violated the First Amendment by Arresting
Plaintiff for Openly Recording Police Officers Carrying Out Their Duties in a Public Place Plaintiff had a First Amendment right to openly make an audiovisual recording of what he perceived to be police misconduct on Boston Common. Protecting citizens’ ability to scrutinize the actions of public servants lies at the heart of the First Amendment. For this reason, a long line of cases has recognized the First Amendment right “to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). Many of these cases involved photographing or videotaping police. The Supreme Court has repeatedly emphasized “the paramount public interest in a free flow of information to the people concerning public officials, their servants.” Garrison v. Louisiana, 379 U.S. 64, 77 (1964); accord, e.g., Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988) (recognizing the “fundamental importance of the free flow of ideas and opinions on matters of public interest and concern”). The flow of information concerning alleged government
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wrongdoing receives special protection as a core value of the First Amendment. See e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1034-35 (1991) (noting heightened protection for “dissemination of information relating to alleged government misconduct”); City of Houston v. Hill, 482 U.S. 451, 462-63 (1987) (“The 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.”).
The Court has also recognized the right to gather news and receive information. See, e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978) (“[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”); Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (“[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated.”); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“The Constitution protects the right to receive information and ideas”).
From these basic principles, numerous lower courts, including the First Circuit and several other circuit courts, have recognized the right to record matters of public interest. See, e.g., Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999) (filming public officials having a conversation in a public area of a public building “was done in the exercise of [Plaintiff’s] First Amendment rights”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing
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“First Amendment right, subject to reasonable time, manner and place
restrictions, to photograph or videotape police conduct”); Fordyce v. City of
Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing “First Amendment right to
film matters of public interest”); Schell v. City of Chicago, 407 F.2d 1084, 1086
(7th Cir. 1969) (recognizing constitutional protection for photography of 1968
Democratic Convention and “attendant street activities”); Demarest v.
Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82, 94 (D. Mass. 2002) (“At
base, plaintiffs had a constitutionally protected right to record matters of public
interest.”).2 Many of these cases, including Iacobucci, Smith, Schell, and Demarest,
involved videotaping or photographing public officials in general or police
officers in particular. Several involved videotape with audio. See Iacobucci, 193
F.3d at 18; Fordyce, 55 F.3d at 439; Demarest, 188 F. Supp. 2d at 86.
The cases cited by Defendants upholding prohibitions on videotaping
certain government proceedings are inapposite. Defs.’ Br. 28-29. None of those
2 See also Alliance to End Repression v. City of Chicago, 2000 U.S. Dist. LEXIS 6342, at *63 (N.D. Ill. May 8, 2000) (recognizing “taking photographs of the police” as protected by the First Amendment); Connell v. Hudson, 733 F. Supp. 465, 47071 (D.N.H. 1990) (“According to principles of jurisprudence long respected in this nation, Chief Brackett could not lawfully interfere with Nick Connell's picture-taking activities unless Connell unreasonably interfered with police and emergency functions.”); Lambert v. Polk County, 723 F. Supp. 128, 133 (S.D. Iowa 1989) (“It is not just news organizations... who have First Amendment rights to make and display videotapes of events – all of us ... have that right.”); Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 638 (D. Minn. 1972) (recognizing “constitutional right to have access to and to make use of the public streets, roads and highways ... for the purpose of observing and recording in writing and photographically the events which occur therein”).
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cases involved restrictions on expressive activity in a traditional public forum. See Rice v. Kempker, 374 F.3d 675, 678 (8th Cir. 2004) (no right to videotape an execution); Whiteland Woods, L.P., v. Twp. of West Whiteland, 193 F.3d 177, 184 (3d Cir. 1999) (planning commission meeting); United States v. Kerley, 753 F.2d 617, 621 (7th Cir. 1985) (criminal trial), and Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984) (civil trial). In traditional public fora like streets and parks, the government has the highest burden to justify limitations on speech. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). Courts in the public proceedings cases have identified a number of government interests weighing against videotaping. See, e.g., Westmoreland, 752 F.2d at 23 (describing various administrative and due process concerns raised by televising trials); Kerley, 753 F.2d at 622 (noting judges’, jurors’, and witnesses’ “interest in decorum and concentration”). These concerns do not exist on the streets and in other unconfined areas that “time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Perry Educ. Ass'n, 460 U.S. at 45. Further, courts upholding prohibitions on the right to videotape public proceedings have found, based on the records before them, that such bans do not substantially interfere with the public’s ability to gain accurate information about the proceedings. E.g., Whiteland Woods, 193 F.3d at 183; Kerley, 753 F.2d at
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621-22; but see Tarus v. Borough of Pine Hill, 189 N.J. 497, 511-12, 916 A.2d 1036, 1045 (2007).
By contrast, a ban on openly videotaping in streets and parks and other public areas would dramatically curtail the public’s and the media’s ability to gain information about matters of public interest.3 While stenotypes, pen and paper, and artists’ sketch pads may adequately document court proceedings, they are inadequate to capture the sights and sounds of outdoor public forums. History speaks eloquently of the “uniquely valuable” information, Whiteland Woods, 193 F.3d at 183, provided by videotapes of spontaneous events. See, e.g., Demarest, 188 F. Supp. 2d at 96 (noting that recording ban at issue would have prevented the filming of the “Bloody Sunday” attack in Selma, Alabama, in 1965, footage of which “touched a nerve deeper than anything that had come before”) (citation omitted).4 The unique quality of video has led courts to recognize its importance as evidence in cases concerning police-citizen encounters. See, e.g., Scott v. Harris, 550 U.S. 372, 378 (2007) (relying on videotape of car chase to determine reasonableness of officer’s conduct);
3 The rights of the institutional media to gather newsworthy information are no greater than those of the general public. See Smith, 212 F.3d at 1333. Thus any restriction on an individual’s right to film matters of public interest would apply equally to a television news crew, for example. 4 Spontaneously captured videos provided essential images of 9/11, the shootings at Virginia Tech, and the death of Saddam Hussein. Kreimer, supra note 1, at 349.
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Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005) (“Videotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence.”).5
The First Amendment protects the right to openly record the police because the behavior of police officers is a matter of great public concern. Police officers are vested with substantial powers, including the authority to use force and to deprive individuals of their freedom. While most police officers act lawfully, police abuse of authority carries great potential for harm. See Rotkiewicz v. Sadowsky, 431 Mass. 748, 754, 730 N.E.2d 282, 288-89 (2000) (stressing importance of public discussion about police officers for this reason). Protecting individuals’ right to document police activities through videotape helps ensure that police remain accountable to the public they serve.
As public servants performing public functions in a public area, whose actions and words were perceptible to everyone who passed by, Defendants cannot reasonably claim any harm from being recorded. On the contrary, the allegations of the complaint require the inference that Defendants arrested Plaintiff solely because of the content of his recording and because of his perceived criticism of them. J.A. 10 ¶ 17 (“I am recording this. I saw you punch him.”). It is apparent that Defendants would not have arrested Plaintiff if he
5 See also, e.g., Jim Dwyer, Videos Challenge Hundreds of Convention Arrests, N.Y. Times, April 12, 2005, at A1.
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had videotaped one of the officers making a heroic rescue or receiving an award, or if Plaintiff had said of their actions in this case, “I am recording this. You did a great job.” Such content- and viewpoint-based discrimination against protected expression violates core First Amendment principles. E.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”); see also 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.”).
Because Plaintiff openly recorded Defendants’ public actions in a public place where he had a right to be, and did not interfere with any police activities or otherwise violate any law, his arrest for this recording violated the First Amendment.
B. This Court’s Decision in Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999), and a Wealth of Other Authority Had Clearly Established the Right to Record Matters of Public Interest, Including Police Officers in the Course of Their Duties, at the Time of Plaintiff’s Arrest
Under the “clearly established” step of the qualified immunity analysis, “the salient question is whether the state of the law at the time of the alleged violation gave the defendant fair warning that his particular conduct was unconstitutional.” Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). The
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inquiry into the state of the law “encompasses not only Supreme Court precedent, but all available case law,” Suboh v. Dist. Attorney's Office, 298 F.3d 81, 93 (1st Cir. 2002), including “authorities both in circuit and out of circuit.” Bergeron v. Cabral, 560 F.3d 1, 11 (1st Cir. 2009). “The law is considered clearly established either if courts have previously ruled that materially similar conduct was unconstitutional, or if a general constitutional rule already identified in the decisional law [applies] with obvious clarity to the specific conduct at issue.” Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 527 (1st Cir. 2009) (citation and quotation marks omitted).
1. Iacobucci recognized a First Amendment right to record public officials on public property
In Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999), this Court stated that an individual had a First Amendment right to videotape a group of public officials engaged in conversation in a public area of a public building. Id. at 25. Because the Massachusetts disorderly conduct statute does not apply to expressive activities “implicating the lawful exercise of a First Amendment right,” id. at 24, the Court held that it did not provide a basis to arrest the plaintiff for filming officials talking in the hallway outside the public meeting room, id. at 25. The Court stated that “Iacobucci’s activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights.” Id. (emphasis added).
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Defendants misread the opinion, arguing that it merely recognized the plaintiff’s First Amendment right of access to the public meeting and his statutory right to videotape the meeting. Defs.’ Br. 18. The filming the Court is describing in the above statement did not occur during a public meeting, but in what the Court called the “hallway episode” outside the meeting room. Id. at 24. The Court’s recognition of the plaintiff’s First Amendment right to film the hallway conversation is separate from the plaintiff’s First Amendment right of access to the public meeting, which the Court did not discuss. Nor does the First Amendment right to record depend on the plaintiff’s statutory rights under the Massachusetts Open Meeting Law.
Iacobucci, decided eight years before Plaintiff’s arrest, gave fair warning to Defendants that they could not arrest Plaintiff for videotaping them on Boston Common. Like the plaintiff in Iacobucci, Plaintiff here “was in a public area….; he had a right to be there; he filmed the group from a comfortable remove; and he neither spoke to nor molested them in any way.” Iacobucci, 193 F.3d at 25.
2. A consensus of persuasive authority within and outside this circuit had clearly established the right to record matters of public interest at the time of Plaintiff’s arrest
Iacobucci is supported by a wide body of authority. As the cases cited in Section IIA demonstrate, numerous courts had recognized a First Amendment right to record matters of public interest at the time of Plaintiff’s arrest in 2007.
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See Section IIA, supra, at 12-13 & n.2 (citing cases from the Eleventh, Ninth,
and Seventh Circuits, the district courts of Massachusetts and New Hampshire,
and from three other district courts). Several of these cases recognized a right
to videotape or photograph the police in the performance of their duties. Smith,
212 F.3d at 1333; Schell, 407 F.2d at 1086; Alliance to End Repression, 2000 U.S.
Dist. LEXIS 6342, at *63.
This authority gave the officers fair warning that it was unlawful to arrest
someone for peacefully filming them engaging in their official duties in a public
park.6
3. Cases decided after Plaintiff’s arrest, from outside the First Circuit, finding that the law is not clearly established in other circuits, have no bearing on this case
a. The cases cited by Defendants do not hold that there is no First Amendment right to record the police
None of the cases cited by Defendants held that the First Amendment
does not protect the right to record police officers in the course of their duties.
6 Except for a single conclusory sentence, Defs.’ Br. 30, Defendants do not separately address the second aspect of the second prong of the qualified immunity test, whether a reasonable defendant would have understood, in the specific factual context of this case, that his conduct violated Plaintiff’s constitutional rights. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). Given the facts alleged in the complaint, nothing in the record would support a finding that the officers could have reasonably believed their actions were lawful. See Limone v. Condon, 372 F.3d 39, 48 (1st Cir. 2004) (“On an appeal from an order denying a motion to dismiss – a situation in which the court of appeals is required to credit the allegations of the complaint – the first two steps [of the qualified immunity test] will frequently go a long way toward resolving the third.”).
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All of the cases, which were decided post-Pearson, determined only that any such right, as they defined it, was not clearly established within their respective circuits. Kelly v. Borough of Carlisle, 622 F.3d 248, 263 (3d Cir. 2010), Szymecki v. Houck, 353 Fed. Appx. 852, 853 (4th Cir. 2009)(per curiam), Matheny v. County of Allegheny, No. 09-1070, 2010 U.S. Dist. Lexis 24189, at *12-13 & n.3 (W.D. Pa. Mar. 16, 2010), and Gravolet v. Tassin, No. 08-3646, 2009 U.S. Dist. LEXIS 45876, at *12 (E.D. La. June 2, 2009). These cases do not create a “circuit split,” Defs.’ Br. 25, on the substance of the First Amendment question.
In any event, such a split would be irrelevant to the “clearly established” inquiry in this case, since Iacobucci clearly established the law in this circuit. See Newman v. Massachusetts, 884 F.2d 19, 25 (1st Cir. 1989) (finding constitutional right at issue clearly established in First Circuit despite split in authority among other circuits).
b. Post-2007 cases do not affect what a reasonable police officer would have known in 2007
Kelly, Szymecki, Matheny, and Gravolet are additionally irrelevant to the “clearly established” inquiry in this case because they were all decided after Plaintiff’s arrest in 2007. Subsequent legal developments have no bearing on what a reasonable official should have known at the time he or she acted. Brosseau v. Haugen, 543 U.S. 194, 200 n.4 (2004) (per curiam); Hatch v. Dep't for Children, 274 F.3d 12, 22 (1st Cir. 2001).
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c. The Third Circuit’s analysis of the “right to videotape police officers during traffic stops” in Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), is inapplicable and unpersuasive
The Third Circuit’s opinion in Kelly did not hold, as Defendants argue, that there was no clearly established “First Amendment right to videotape police officers exercising their duties in a public place.” Defs.’ Br. 20. The court repeatedly worded its holding more narrowly, stating that what was not clearly established was the “right to videotape police officers during a traffic stop.” Kelly, 622 F.3d at 262 (stating this twice), 263 (“right to videotape police officers during traffic stops”); see also id. at 262 (finding no clear rule “to obtain information by videotaping under the circumstances presented here”). By its own carefully limited terms, Kelly does not apply to the arrest of Plaintiff, which did not occur during a traffic stop.
More fundamentally, the court’s narrow definition of the right at issue contravenes its own recognition that “[i]n determining whether a right is clearly established, it is not necessary that the exact set of factual circumstances has been considered previously.” Id. at 259 (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). The First Circuit has repeatedly heeded the Supreme Court’s instruction that “general statements of the law are not inherently incapable of giving fair and clear warning, and . . . a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific
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conduct in question.” DeMayo v. Nugent, 517 F.3d 11, 18 (1st Cir. 2008) (citing United States v. Lanier, 520 U.S. 259, 271 (1997), and collecting First Circuit cases finding a right clearly established despite the novel factual context of the violation at issue).
In this case, the clearly established right at issue is the right to observe and document matters of public concern in a public place, a right that applies with obvious clarity to the right to videotape police officers making an arrest on Boston Common. The clarity of the right derives from the long line of Supreme Court decisions emphasizing the fundamental importance of the free flow of information and from the numerous cases around the country recognizing the right to peacefully record matters of public interest, including the activities of police officers.
The Third Circuit’s cursory dismissal of several of these cases as “insufficiently analogous” to the videotaping of a traffic stop misses the point. Kelly, 622 F.3d at 261 (citing Fordyce, Demarest, and Lambert). While these cases did not involve recording police officers, nothing in Fordyce, Demarest, or Lambert suggests that the courts’ recognition of the right to videotape matters of public concern was limited to their specific factual contexts. On the contrary, courts’ recognition of a First Amendment right to record in a variety of factual contexts suggests the deep-seated nature of the right. Cf. Connell v. Hudson, 733 F. Supp. 465, 470-71 (D.N.H. 1990) (finding right to photograph
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accident scene “[a]ccording to principles of jurisprudence long respected in this
nation”). So does the fact that “many of these cases recognize such a right only
in passing.” Kelly, 622 F.3d at 261. If the right were not obvious, it would
require more discussion. 7
The fact that the right to record matters of public concern is subject to
time, place, and manner restrictions, and that there may be situations in which
the recording is not constitutionally protected, does not vitiate the core of
authority protecting the right. The First Circuit has repeatedly recognized this
principle. E.g., DeMayo, 517 F.3d at 18; Suboh, 298 F.3d 97. In DeMayo, the
Court found that a warrantless entry into a home violated clearly established
law despite the defendants’ claim that “the precise quantum or nature of
evidence that gives rise to exigent circumstances is not fully fleshed out in the
case law.” 517 F.3d at 18. The Court found that the evolving contours of the
right in question did not undermine its core protections. Id.; see also Suboh, 298
7 The other cases city by Defendants failed to consider the body of authority relevant to the “clearly established” inquiry in this case and are otherwise distinguishable. Szymecki held only that the right to record police activities was not clearly established in the Fourth Circuit, based on a qualified immunity test more restrictive than the First Circuit’s. 353 Fed. Appx. at 853. In Gravolet, the district court found probable cause to arrest the plaintiff for stalking a female police officer, and it properly held that the plaintiff’s use of a video camera did not immunize him from this charge. 2009 U.S. Dist. LEXIS 45876, at *9. The Matheny court made an arbitrary and unwarranted distinction between audio and video, 2010 U.S. Dist. LEXIS 24189, at *15, which is at odds with the later rulings in Iacobucci, Fordyce, and Demarest, all of which involved audiovisual recordings of nonconsenting speakers. See Iacobucci, 193 F.3d at 18, Fordyce, 55 F.3d at 439, and Demarest, 188 F. Supp. 2d at 86.
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F.3d at 97 (finding that “[w]hatever the exact contours of the right [in question], this case falls well within the area of clarity”) (internal citation omitted).
In this case, nothing in the record on Defendants’ motion to dismiss suggests any basis for arresting Plaintiff for filming the officers. Whatever the exact boundaries of the “broad First Amendment right to document matters of public interest” that Defendants appear to acknowledge, Defs.’ Br. 28, it surely protects peacefully and openly filming the police engaging in potential misconduct in broad daylight on Boston Common.
III. THE DISTRICT COURT PROPERLY DENIED DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDMENT CLAIM Qualified immunity does not shield Defendants from liability under the
Fourth Amendment because no reasonable officer could have believed Plaintiff violated the Massachusetts wiretap statute, Mass. Gen. Laws ch. 272, § 99, by openly recording them with his cellphone on Boston Common. The statute forbids only “secret” recording, id. § 99(B)(4), which does not include holding a recording device in plain sight and does not turn on the subjective awareness of the individual being recorded. Decisions of the Massachusetts Supreme Judicial Court (“SJC”), including Commonwealth v. Hyde, 434 Mass. 594, 605, 750 N.E.2d 963, 971 (2001), confirm this common sense understanding of the statute. In any event, the complaint alleges that Defendants were aware that they were
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being recorded. J.A. 11, 18. On this motion to dismiss, the Court must disregard Defendants’ assertions to the contrary.
A. Plaintiff States a Fourth Amendment Claim Because Holding a Cellphone in Plain View Did Not Give Rise to Probable Cause to Arrest Him for “Secretly” Recording
An arrest without probable cause violates the Fourth Amendment. Beck v. Ohio, 379 U.S. 89, 91 (1964); Santiago v. Fenton, 891 F.2d 373, 383 (1st Cir. 1989).
In this case, there was no probable cause to believe that Plaintiff had violated the Massachusetts wiretap statute, Mass. Gen. Laws ch. 272, § 99. By its plain terms, the statute prohibits only secret audio recording. The statute makes it a crime to “secretly hear [or] secretly record … the contents of any wire or oral communication.” Id. § 99(B)(4)(emphasis added).8 The statute further requires that such secret hearing or recording be done “willfully.” Id. § 99 (C)(1).
In 2001, the SJC confirmed that the language of the statute means what it says. Commonwealth v. Hyde, 434 Mass. 594, 750 N.E.2d 963 (2001). The court affirmed that the statute prohibited “secret electronic recording” and held that it made no exception for surreptitious recording of police officers. Id. at 595, 750
8 To fall within the statute, the hearing or recording must be done with an “intercepting device,” which is “any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication.” Id. § 99(B)(3).
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N.E.2d at 964 (emphasis added). In upholding Michael Hyde’s conviction for secretly recording his conversation with the police during a traffic stop, the court stated that “the problem here could have been avoided if … the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.” Id. at 605, 750 N.E.2d at 971 (emphasis added). As the court explained, “[h]ad he done so, his recording would not have been secret, and so would not have violated G.L. c. 272 § 99.” Id.
Simon Glik did exactly what the SJC in Hyde said was permitted: he held his recording device in plain sight. There was nothing secret about the recording. The police officers admitted that the recording was done openly and publicly. J.A. 11, 18. Under the circumstances, there was no probable cause to believe that Mr. Glik had “secretly” recorded the officers.
Nor was there probable cause to believe that Plaintiff had “willfully” committed an interception, another element of the crime. Mass. Gen. Laws ch. 272, § 99(C)(1); see Commonwealth v. Ennis, 439 Mass. 64, 68-69, 785 N.E.2d 677, 681 (2003) (offense requires that recording be done secretly and “willfully”). The fact that Plaintiff was holding the recording device in plain view, on a busy public sidewalk – along Boston Common, a quintessentially public place – and that he readily acknowledged that he was recording sound when asked, negate probable cause to believe that he willfully made a secret recording of any of the
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officers’ communications. See Ennis, 439 Mass. at 69-70, 785 N.E.2d at 682 (party making recording did not act willfully where there was no evidence of intent to conceal the fact that the call was being recorded; “Certainly the department did not ‘secretly record’ any part of the resulting conversation willfully.”).
There is no merit to Defendants’ argument that the recording was “secret” because they supposedly “did not have actual knowledge of Glik’s audio recording until he had completed it.” Defs.’ Br. 35. Besides being an inappropriate factual assertion on a motion to dismiss, the officers’ claimed lack of subjective knowledge is irrelevant. By holding the recording device in plain view, Plaintiff did not act secretly (much less willfully so). After Hyde, a majority of the justices of the SJC confirmed that whether a recording is secret does not depend on the subjective awareness of the party being recorded. In Commonwealth v. Rivera, 445 Mass. 119, 833 N.E.2d 1113 (2005), four members of the court, including Justice Greaney, the author of Hyde, separately concurred to clarify that a store surveillance camera in plain view of anyone in the store does not violate the statute even though it records sound as well as images. See id. at 134, 833 N.E.2d at 1125 (Cowin, J., concurring) (“That the defendant did not know the camera also included an audio component does not convert this otherwise open recording into the type of ‘secret’ interception prohibited by the Massachusetts wiretap statute.”); id. at 142, 833 N.E.2d at
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1130 (Cordy, J., concurring, joined by Greaney and Ireland, JJ.) (“Just because a robber with a gun may not realize that the surveillance camera pointed directly at him is recording both his image and his voice does not, in my view, make the recording a ‘secret’ one within the meaning and intent of the statute.”).9
Commonwealth v. Jackson, 370 Mass. 502, 349 N.E.2d 337 (1976), is not to the contrary. In that case, the SJC held that recording a telephone conversation is “secret” within the meaning of the statute unless the caller being recorded has “actual knowledge” that the call is being taped. Id. at 507, 349 N.E.2d at 340. Because the recording took place during a telephone call, the caller in Jackson – unlike the officers in this case – could not have seen the intercepting device. Id. at 504, 349 N.E.2d at 339. Even still, the court did not require that the recorded party be explicitly informed of the recording, but held that knowledge may be implied by “objective factors” rather than by “speculating as to the caller’s subjective state of mind.” Id. at 507, 349 N.E.2d at 341. Justice Cowin’s concurrence in Rivera relied on Jackson for this point, reasoning that because “audio recording devices were part of video cameras within plain view of any person entering the store, including the defendant[,] [t]he defendant can be presumed to have had actual awareness of the existence of the devices and that he was under surveillance.” Rivera, 445 Mass. at 134, 833 N.E.2d at 1125 9 The three remaining justices signed only the court’s main opinion, which disposed of the case on another ground and did not address whether the audio recording was lawful. Id. at 123, 833 N.E.2d at 1117-18.
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(Cowin, J., concurring). The district court in this case also held that knowledge is presumed when the recording device is in plain view. Def. Br. AD 8-9. 10
Defendants’ interpretation of the statute would lead to absurd results. If subjective knowledge were required, then a news crew using a ten-foot boom microphone to record sound at a public event such as a fire would be committing a felony merely because one of the firefighters had his or her back turned to the microphone. Under Defendants’ view, unless every firefighter on the scene and all passersby saw the microphone, the news crew would be subject to arrest for illegal wiretapping. 11 Such a sweeping restriction on the right of the media and the public at large to gather information violates the First Amendment and basic principles of a free society. See Section IIA, supra.
Even assuming, arguendo, that the subjective knowledge of the party being recorded were required to avoid violating the statue, this would not provide grounds to grant Defendants’ motion to dismiss. The complaint alleges
10 Defendants’ citation to Gouin v. Gouin, 249 F. Supp. 2d 62, 79 (D. Mass. 2003), is also unavailing. Defs.’ Br. 33. In denying the plaintiff’s motion to dismiss the defendant officers’ counterclaim for a civil violation of the wiretap statute, the court had to accept as true the allegation that the recording was done secretly. Id. 11 Further, if the statute turned on police officers’ subjective knowledge of the recording, then police would have “a strong incentive to deny knowledge of a recording when an instance of police misconduct occurred.” Lisa A. Skehill, Note: Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 43 Suffolk U. L. Rev. 981, 1012 (2009).
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that the police officers admitted that the recording was done openly and publicly. J.A. 11. Read in the light most favorable to Plaintiff, the complaint does not concede that Defendants lacked knowledge that Plaintiff was recording sound. J.A. 10. At a minimum, Defendants’ assertion of ignorance raises factual questions inappropriate for resolution at this stage.
Defendants’ contention that because “the primary function of a cellular phone … is undoubtedly to make phone calls,” Defs.’ Br. 37, Plaintiff’s use of his cellphone to make an audiovisual recording was “in reality clandestine,” Defs.’ Br. 38, lacks merit. As Defendants concede, the capability of cellphones to make audio and audiovisual recordings is “obvious[],” a fact that negates any contention that Plaintiff’s use of this capability was secretive. Defs.’ Br. 37. It also negates the comparison of cellphones to “pens, glasses, watches, keychains, hats” or other objects that may have an embedded sound-recording device. Defs.’ Br. 38. Unlike the recording capabilities of a cellphone, any such capabilities that may exist in hats and watches are not ubiquitous and wellknown.
Defendants’ purported distinction between the “primary function” of a cellphone and its recording capabilities is irrelevant under Massachusetts wiretap law. The statute prohibits secret “hear[ing]” as well as secret recording. Mass. Gen. Laws ch. 272, § 99(B)(4). Cellphones, like all phones, transmit sound from one place to another: they permit “hearing” of oral
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communications. Thus, it makes no difference whether an individual in Plaintiff’s shoes was using his phone to make an audiovisual recording of the officers or whether he was holding it out “to allow someone on the other end of the phone” to hear the sounds of the arrest. Defs.’ Br. 37-38. Either use of the phone would be an illegal interception if it were done secretly, but since holding such a device in plain sight is not secret, neither use violates the statute.
Because Plaintiff’s audio recording was not secret, there was no probable cause to arrest him for illegal wiretapping. The complaint thus states a claim for false arrest.
B. The Officers Had Fair Warning That They Could Not Lawfully Arrest Plaintiff for Violating the Massachusetts Wiretap Statute
No reasonable officer could have believed, under the circumstances alleged in the complaint, that probable cause existed to arrest Plaintiff for illegal wiretapping. It was clearly established by 2007 that recording audio while holding a recording device in plain view did not violate the Massachusetts wiretapping statute.
Reasonable police officers must know the law. See Hall v. Ochs, 817 F.2d 920, 924 (1st Cir. 1987). This includes criminal statutes as well as decisional law interpreting those statutes. See, e.g., Iacobucci, 193 F.3d at 24-25; Sheehy v. Town of Plymouth, 191 F.3d 15, 22-23 (1st Cir. 1999). In Iacobucci, the First Circuit held
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that a reasonable police officer would have been aware of the caselaw regarding disorderly conduct as well as the statutory language of the state’s open meeting law. 193 F.3d at 24-25. The Court denied qualified immunity because these authorities made it sufficiently clear that the plaintiff could not be arrested for disorderly conduct. Id. at 24.
In this case, a reasonable police officer would have understood, in light of Hyde, Ennis, and Rivera, that there was no probable cause to believe Plaintiff violated the wiretap law. The opinion of the Boston Municipal Court, which easily concluded that “[t]his was not a secret recording,” J.A. 19, supports a finding that the law was clearly established at the time of Plaintiff’s arrest. The wide body of First Amendment law recognizing the right to record the actions of public officials on public property gave the officers further notice that they could not arrest Plaintiff for filming them unless he interfered with them in some way. The criminal court readily recognized this as well. J.A. 19-20.
Because Defendants had fair warning that Plaintiff’s recording was lawful and constitutionally protected, they are not entitled to qualified immunity with respect to Plaintiff’s Fourth Amendment false arrest claim.
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IV. THIS COURT LACKS JURISDICTION TO CONSIDER DEFENDANTS’ APPEAL AS TO PLAINTIFF’S STATE LAW MALICIOUS PROSECUTION CLAIM Because qualified immunity is not an available defense to Plaintiff’s
malicious prosecution claim under Massachusetts law, the district court’s denial of Defendants’ motion to dismiss this claim is not appealable. See Garnier v. Rodriguez, 506 F.3d 22, 25 (1st Cir. 2007) (“[W]hen presented with an interlocutory appeal from an order denying summary judgment on the ground of qualified immunity, we have so far refrained from endorsing any form of pendent appellate jurisdiction over otherwise nonappealable interlocutory orders.”)(citation omitted). The Court should dismiss the appeal as to this claim. In the alternative, the Court should affirm the district court’s denial of Defendants’ motion on the grounds that Defendants lacked probable cause to initiate criminal proceedings against Plaintiff. See Section IIIA, supra.
CONCLUSION For the foregoing reasons, the Court should affirm the order of the district court denying the individual Defendants’ motion to dismiss Plaintiff’s First Amendment and Fourth Amendment claims; dismiss these Defendants’ appeal as to Plaintiff’s malicious prosecution claim, and the entire appeal of Defendant City of Boston, for lack of jurisdiction; and remand the case to the district court for further proceedings.
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RESPECTFULLY SUBMITTED, For the Plaintiffs, /s/David Milton Howard Friedman, First Circuit No. 70615 David Milton, First Circuit No. 125026 Law Offices of Howard Friedman, P.C. 90 Canal Street, Fifth floor Boston, MA 02114-2022 617-742-4100 hfriedman@civil-rights-law.com dmilton@civil-rights-law.com /s/Sarah Wunsch Sarah Wunsch, First Circuit No. 28628 American Civil Liberties Union of
Massachusetts 211 Congress Street, 3rd floor Boston, MA 02110 617-482-3170, ext. 323 swunsch@aclum.org
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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C)
I, David Milton, as counsel for the Plaintiff-Appellee Simon Glik, hereby certify, pursuant to Fed. R. App. P. 32(a)(7)(C), as follows:
(1) This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 7,467 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
(2) This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Garamond 14-point type.

Dated: January 18, 2011

Attorney for Plaintiff-Appellee,

/s/ David Milton

.

David Milton, First Circuit No. 125026

Law Offices of Howard Friedman P.C.

90 Canal Street, 5th Floor

Boston, MA 02114-2022

617-742-4100

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CERTIFICATE OF SERVICE I certify that on this day I caused the above document to be served upon the attorneys of record for Defendants – Lisa Skehill Maki and Ian Prior -- via Notice of Docket Activity generated by the Court’s electronic filing system. All attorneys of record for Defendants are ECF Filers and will receive service via their respective email addresses, which are lisa.maki@cityofboston.gov and ian.prior@cityofboston.gov.

Dated: January 18, 2011

Attorney for Plaintiff-Appellee,

/s/ David Milton

.

David Milton, First Circuit No. 125026

Law Offices of Howard Friedman P.C.

90 Canal Street, 5th Floor

Boston, MA 02114-2022

T (617) 742-4100

37

 
 Case: 10-1764 Document: 00116168880 Page: 1 Date Filed: 02/09/2011 Entry ID: 5524981

IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 10-1764 _____________________________________________
SIMON GLIK, Plaintiff-Appellee, v.
JOHN CUNNIFFE, in his individual capacity; PETER SAVALIS, in his individual capacity; JEROME HALL-BREWSTER, in his individual capacity; CITY OF BOSTON, Defendants-Appellants _____________________________________________
On Appeal from a Judgment of the United States District Court for the District of Massachusetts, Hon. William G. Young
_____________________________________________
CORRECTED BRIEF OF AMICI CURIAE, BERKELEY COPWATCH, COMMUNITIES UNITED AGAINST POLICE BRUTALITY, JUSTICE
COMMITTEE, MILWAUKEE POLICE ACCOUNTABILITY COALITION, NODUTDOL FOR KOREAN COMMUNITY DEVELOPMENT, AND PORTLAND COPWATCH
IN SUPPORT OF PLAINTIFF-APPELLEE SIMON GLIK AND AFFIRMANCE OF THE RULING BELOW
_________________________________________________

Dated: February 8, 2011

Anjana Samant CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 (212) 614-6464 Attorney for the Amici Curiae

Case: 10-1764 Document: 00116168880 Page: 2 Date Filed: 02/09/2011 Entry ID: 5524981
STATEMENT PURSUANT TO FED. R. APP. P. 29(c)(5) Pursuant to Fed. R. App. P. 29(c)(5), the amici curiae state as follows: no party’s counsel authored this brief in whole or in part; no party or party’s counsel contributed money that was intended to fund preparation or submission of the brief; and no person other than counsel for amici curiae contributed money that was intended to fund preparation or submission of the brief.
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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, counsel for proposed amici curiae makes the following disclosures: (1) Amici curiae are all nonprofit organizations whose purposes are to document and publicize incidents of police misconduct, including through videotaped or audio recordings in public, train communities in how to engage in such projects, and inform communities of their rights vis a vis the police; (2) Amici curiae are not publicly held entities; and (3) None of the amici curiae are parent, subsidiary, or affiliate of, or a trade association representing, a publicly held corporation, or other publicly held entity. No parent companies or publicly held companies have a 10% or greater ownership in amici curiae.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES..................................................................................... v I. INTERESTS OF AMICI................................................................................. 1 II. SUMMARY OF ARGUMENT ...................................................................... 4 III. ARGUMENT.................................................................................................. 5
A. THE RIGHT TO GATHER INFORMATION ON MATTERS OF PUBLIC CONCERN IS A CORE FIRST AMENDMENT RIGHT THAT INCLUDES THE RIGHT TO RECORD POLICE ACTIVITY IN PUBLIC............................................................................ 5
B. THE RIGHT TO RECORD POLICE CONDUCT PROMOTES CIVIC PARTICIPATION AND DEMOCRATIC GOVERNANCE........................................................................................ 8
C. THE RIGHT TO RECORD POLICE CONDUCT HELPS HOLD LAW ENCORCEMENT ACCOUNTABLE TO THE PUBLIC AND HELPS DETER POLICE MISCONDUCT..................................... 13
D. THE RIGHT TO RECORD POLICE ACTIVITY SERVES THE INTERESTS OF JUSTICE AND IMPROVES THE JUDICIAL PROCESS.................................................................................................. 19
IV. CONCLUSION............................................................................................... 23
iv

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FEDERAL CASES

TABLE OF AUTHORITIES

Citizens United v. FEC, __ U.S. __, 130 S. Ct. 876 (2010) ....................... 7, 8

Colon v. City of New York, No. 1:09-cv-00008, 2009 U.S. Dist. LEXIS 110520, *4 (E.D.N.Y. Nov. 25, 2009) ............................................. 15

First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978) ....................................... 6, 8

Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) ................................. 6

Garrison v. Louisiana, 379 U.S. 64 (1964) .................................................... 6

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)..................... 6

Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) .......................................... 6

Mills v. Alabama, 384 U.S. 214 (1966) .......................................................... 5

Roth v. United States, 354 U.S. 476 (1957).................................................... 5

Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) ........................... 6

OTHER AUTHORITIES

Daniel A. Begun, NYPD wants Your Videos to help fight Crime, hothardware.com, Aug. 1, 2008, http://hothardware.com/News/NYPD-Wants-YourVideos-to-Help-Fight-Crime/. ...................................................................... 19

CITY OF BOSTON, ANNUAL REPORT OF COMMUNITY OMBUDSMAN OVERSIGHT PANEL 6 (2009) available at
http://www.cityofboston.gov/Images_Documents/COOP_Annual_Report_2009_tcm3-9870.pdf................................................ 16

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Case: 10-1764 Document: 00116168880 Page: 6 Date Filed: 02/09/2011 Entry ID: 5524981
Demian Bulwa, BART told to reinstate Officer; Oscar Grant Shooting; Probe That led to Her Firing was Flawed, Arbitrator Says, S.F. CHRONICLE, Dec. 18, 2010, at C1 ......... 14
Demian Bulwa, Mehserle convicted - Protests, Looting; Verdict: Jury finds Former BART Officer Guilty on Involuntary Manslaughter Charge, S.F. CHRONICLE, July 9, 2010, at A1... 15
Demian Bulwa, Student's Video given to Police considered Best Look at Killing; Evidence, S.F. CHRONICLE, May 18, 2009, at A5.......................................................... 14
Morgan Cloud, The Dirty Little Secret, 43 EMORY L.J. 1311 (1994)........... 20
ALAN M. DERSHOWITZ, THE ABUSE EXCUSE (Hachette Book Group 1994)........................................................................ 20
ALAN M. DERSHOWITZ, THE BEST DEFENSE (Random House 1983) .................................................................................. 20
David N. Dorfman, Proving the Lie: Litigating Police Credibility, 26 AM. J. CRIM. L. 455 (1999). ..................................................................... 22
Jim Dwyer, Videos Challenge Accounts of Convention Arrest, N.Y. TIMES, Apr. 12, 2005, available at
http://www.nytimes.com/2005/04/12/nyregion/12video.html. ................. 21
Bob Elgeko & Marisa Lagos, Lawyer tells Why Cop hit Oscar Grant; BART Shooting, S.F. CHRONICLE, Feb. 1, 2009, at B1. ......... 14
John Eligon & Colin Moynihan, Police Officer Seen on Tape shoving a Bicyclist is Indicted, N.Y. TIMES, Dec. 16, 2008, at A33............. 17
David Kocieniewski, Perjury Dividend-A Special Report, N.Y. TIMES, Jan. 5, 1997, at A1 .................................................................... 20
Marisa Lagos, Video shows Another BART Cop Apparently Striking Oscar Grant, S.F. CHRONICLE, Jan. 25, 2009, at B2....................... 14
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Case: 10-1764 Document: 00116168880 Page: 7 Date Filed: 02/09/2011 Entry ID: 5524981
Henry K. Lee, 3 charged in Shooting Protest; Misdemeanor Counts could Still be lodged against Dozens More, S.F. CHRONICLE, Jan. 10, 2009, at A4........................................................... 14
Trymaine Lee, Police Officer Who Shoved A Bicyclist is Off the Job, N.Y. TIMES, Feb. 20, 2009, at A24. ........................ 23
LETTER FROM JAMES MADISON TO W. T. BARRY (Aug. 4, 1822), in 9 THE WRITINGS OF JAMES MADISON, 1819-1836 (Gaillard Hunt ed.) (1900), available at http://oll.libertyfund.org/title/1940 on 2011-01-21. ....................................... 7
Joseph D. McNamara, Has the Drug War created an Officer Liars' Club?, L.A. TIMES, Feb. 11, 1996, at M1 .............................. 20
Amy Mayron, No Charges Filed Against Officers in Fatal Shooting / Mentally Ill Man Was Killed as He Drove Toward Police in Alley, Saint Paul Pioneer Press (Minnesota) May 17, 2001, Thursday City Edition, at B3 ........................... 11
Jim Newton, 2 Officers Guilty, 2 Acquitted; Guarded Calm follows Verdicts in King Case; Trial: Federal Jury Finds that Stacey Koon and Laurence Powell violated Beating Victim’s Civil Rights. Sentencing is set for Aug. 4, L.A. TIMES, Apr. 18, 1993, at A1 ................................................................. 14
Wendy Ruderman, 4 Cops fired for Beating, PHILADELPHIA DAILY NEWS, May 20, 2008, at 3.......................................... 19
Jerome H. Skolnick, Deception by Police, CRIM. JUST. ETHICS, Summer/Fall 1982, at 40 ............................................. 20
Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037 (1996)................................ 20
Lie Detectors Could Curb Police Perjury, USA TODAY, Aug. 1, 1996, (Magazine), at 13 ............................................. 20
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Edward T. Walker, Contingent Pathways from Joiner to Activist: The Indirect Effect of Participation in Voluntary Associations on Civic Engagement, 23 SOCIOLOGICAL FORUM 116, 118 (2008)..................................................... 9 Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 CONN. L. REV. 425 (1996) .............................................. 20 Video: Critical Mass Bicyclist assaulted by NYPD,
http://www.youtube.com/watch?v=oUkiyBVytRQ .................................. 22
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I. INTERESTS OF AMICI BERKELEY COPWATCH (Berkeley, CA) began in 1990 as an all-volunteer
organization dedicated to monitoring police actions and educating and encouraging community members in asserting their rights in a non-violent manner. Berkeley Copwatch does not attempt to interfere in police activity or to resist police misconduct physically. The organization’s mission is to work to reduce police violence, empower and unite communities, and encourage people to exercise their right to document police conduct and advocate for each other. Their copwatch trainings and methodology have served as model practices for others interested in similar police accountability mechanisms. As a result, Berkeley Copwatch has trained hundreds of individuals and groups nationwide on their rights vis a vis the police and has hosted international observers and members of law enforcement interested in learning more about their copwatch program.
COMMUNITIES UNITED AGAINST POLICE BRUTALITY (Minneapolis, MN) Communities United Against Police Brutality (CUAPB) was founded in 2000 in the aftermath of an incident of police brutality in which an unarmed man was shot 35 times in the alleyway behind his home. Despite intense efforts by the community, there was no justice in that case. Historically and currently, the Minneapolis Police Department’s Internal Affairs Unit and the Minneapolis Civilian Review Authority have provided little relief or accountability
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in incidents of police violence. CUAPB was formed in response to this lack of accountability, on the belief that addressing day-to-day abuse will reduce more egregious incidents. An all-volunteer organization, CUAPB provides a 24-hour hotline and other referral and advocacy services for people dealing with the effects of police brutality. CUAPB also operates copwatch and courtwatch programs, engages in litigation, works to change policies and practices that facilitate police brutality, and educates the community on their rights while dealing with police.
Founded in 2005, the JUSTICE COMMITTEE (JC) is a Latina/Latino-led organization dedicated to building a movement against police violence and systemic racism in New York City. In 2008 JC launched its Cop Watch project, a tactic through which the Justice Committee seek to hold the police accountable by patrolling neighborhoods and documenting police misconduct with video cameras. The Justice Committee’s Cop Watch team does not interfere in police activities. The JC Cop Watch project seeks to educate community members on their rights when approached by law enforcement, document police interactions with community members, and minimize police harassment, attacks and killings by non-violently observing.
The MILWAUKEE POLICE ACCOUNTABILITY COALITION (MPAC) was founded in 2003. The coalition involves local, state, and national organizations and is driven by families who have lost loved ones at the hands of
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the police. MPAC has committed itself to organizing communities and finding solutions to Milwaukee’s police brutality crisis--particularly in communities of color where a disproportionate amount of police misconduct takes place. MPAC unites the many voices of families and individuals who have been victimized by police violence into effectively addressing Milwaukee’s police brutality crisis.
Founded in 1999, NODUTDOL FOR KOREAN COMMUNITY DEVELOPMENT (Nodutol) is a grassroots organization dedicated to empowering the Korean people locally and globally and working for justice for immigrant and people of color communities in New York City. As an organization that opposes militarization at home as well as abroad, Nodutdol joined Peoples’ Justice for Community Control and Police Accountability in order to help this coalition of grassroots organizations build a network of autonomous Cop Watch teams through out New York City. Nodutdol members have provided leadership and capacity by joining Cop Watch Network teams, conducting Know Your Rights and Cop Watch trainings, and developing educational public art about New Yorkers rights when approached by law enforcement and the need for Cop Watch as a grassroots strategy for police accountability.
PORTLAND COPWATCH (Portland, OR) is an outgrowth of the People Overseeing Police Study Group, a grassroots group founded in 1992 to promote police accountability through citizen action, to empower victims of police
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misconduct and prevent future such incidents, and to educate the public about their rights and responsibilities when dealing with law enforcement. Since its formation, Portland Copwatch has consulted dozens of groups and individuals locally and nationwide on the issue of civilian review of the police, assembled a broad range of reports, articles, interviews, and other resources. Portland Copwatch regularly participates in community forums on police accountability, including meetings of Portland’s civilian complaint review board (the Citizens Review Committee of the Independent Police Review Division) and the Police Chief’s forum. Since its inception, Portland Copwatch has maintained an incident report hotline for monitoring police conduct, provided know-your-rights trainings, conducted police monitoring in various neighborhoods and at demonstrations/protests, and trained community members on how to engage in police monitoring with or without video or other recording devices.
II. SUMMARY OF ARGUMENT Amici submit this brief in support of Plaintiff-Appellee Simon Glik and of
affirmance of the District Court’s ruling below. As the lower court explained, “in the First Circuit, this First Amendment right publicly to record the activities of police officers on public business is clearly established.” Amici are groups that have exercised this right – and who have trained or educated others about their
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rights in police encounters – to increase direct police accountability to communities, participate in police reform and oversight, encourage civic participation by community members, and promote justice and transparency. In the experience of amici, the protection and exercise of the right to record police activity in public places has been necessary to further their goals and to realize the aims and principles underlying the First Amendment’s guarantees against government misconduct through civic engagement.
III. ARGUMENT A. THE RIGHT TO GATHER INFORMATION ON MATTERS OF PUBLIC CONCERN IS A CORE FIRST AMENDMENT RIGHT THAT INCLUDES THE RIGHT TO RECORD POLICE ACTIVITY IN PUBLIC.
One of the central purposes of the First Amendment is to promote the open exchange of ideas, especially those critical of the government, by among other things protecting free speech, an independent press, freedom of assembly, and the right to petition the government. Mills v. Alabama, 384 U.S. 214, 218 (1966) (“a major purpose of [the First Amendment] was to protect the free discussion of governmental affairs.”); see also Roth v. United States, 354 U.S. 476, 484 (1957) (“The protection given free speech and the press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”). Indeed the Supreme Court has explained that “speech concerning public affairs is more than self-expression; it is the essence of self-government.”
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Case: 10-1764 Document: 00116168880 Page: 14 Date Filed: 02/09/2011 Entry ID: 5524981
First Nat'l Bank v. Bellotti, 435 U.S. 765, 777 n.12 (1978) (citing Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)); see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982) (First Amendment guarantees “serve[] to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.”). To give meaning to the guarantees expressly stated in the First Amendment, some rights, though not specifically enumerated, nonetheless flow from the general principles and purpose animating the provision. Globe Newspaper, 457 U.S. at 604. The gathering of information about government affairs or matters of public concern – including by photographing or otherwise recording police activity – is one such right. E.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (finding that plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” (emphasis added)); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (First Amendment guarantees include right to film public officials’ conduct in public space.); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (First Amendment protects “right to film matters of public interest.”).
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As a practical matter, the photographing or other audio/visual documentation
of police conduct in public places is a real-life manifestation of the conduct and values promoted and protected by the First Amendment.1 To properly “protect the
free discussion of governmental affairs” and give teeth to the checks on
government authority enshrined in the First Amendment, the public must have
access to information concerning and the ability to disseminate information about
government conduct. As James Madison explained, “[a] popular Government,
without popular information, or the means of acquiring it, is but a Prologue to a
Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance:
And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”2
The right to photograph or otherwise record police activity in public places
promotes civic participation in matters of governance, is a vital tool in achieving
1 That modern technologies permit individuals to gather and disseminate information concerning matters public concern in ways not contemplated at the writing of the Bill of Rights has little bearing on whether a specific form of conduct is protected by the Constitution. Citizens United v. FEC, __ U.S. __, 130 S. Ct. 876, 906 (2010) (“The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.”). 2 LETTER FROM JAMES MADISON TO W. T. BARRY (Aug. 4, 1822), in 9 THE WRITINGS OF JAMES MADISON, 1819-1836 (Gaillard Hunt ed.) (1900), available at http://oll.libertyfund.org/title/1940 on 2011-01-21 (follow “1822: To W. T. Barry Mad. Mss.” hyperlink).
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government accountability, aids in the exercise of the right to petitioning the government for redress, and helps counter and deter government misconduct. Groups such as amici who engage in the photography or other recording of police activity in public places, engage in the vital, protected act of gathering of information about government action. To use Madison’s terms, these ordinary individuals obtain “popular information” essential to arming the public with information concerning the government conduct. When the government seeks to limit or shut down the right of ordinary members of the public to photograph or otherwise record police activity in public places, when these actions are not interfering with the official conduct or posing a threat to anyone’s safety – as were the events underlying Plaintiff-Appellee Simon Glik’s suit – the government infringes on a protected First Amendment right and strikes at the very heart of the principles animating the First Amendment.3
B. THE RIGHT TO RECORD POLICE CONDUCT PROMOTES CIVIC PARTICIPATION AND DEMOCRATIC GOVERNANCE.
3 Laws can run afoul of the First Amendment’s free speech regardless at which “point[] in the speech process” they operate. Citizens United, 130 S. Ct. at 896; see also id. at 908 (when public authorities seek “to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” and “[t]his is unlawful.”); Bellotti, 435 U.S. at 783 (First Amendment “prohibit[s] government from limiting the stock of information from which members of the public may draw”).
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Individuals who record, and those who organize as a group with the purpose of recording police conduct in public places, undertake precisely the type of political and social activities that help safeguard against government misconduct and further the function of a more responsive democratic government. “Going back to Madison … analysts have argued that group life acts as a bulwark against tyranny and the dominance of a limited number of specialized interests.”4 The right to photograph police activity in public places is a grassroots accountability mechanism also helps foster greater involvement and trust by the community in local law enforcement. Groups and individuals across the country have relied upon video recordings of police misconduct to effect changes in law enforcement practices and police policies. In this sense, the right to record police activity alters the power imbalance that exists between police departments and the communities they patrol. With the ability to curb the excesses of police power and directly create policy changes, communities are more likely to have faith in local law enforcement.
One of the earliest organizations to use photographs and, later, video of police-public interactions to increase police accountability and to reduce police misconduct is amici Berkeley Copwatch. (Prichett Dec. ¶ 13.) The organization
4 Edward T. Walker, Contingent Pathways from Joiner to Activist: The Indirect Effect of Participation in Voluntary Associations on Civic Engagement, 23 SOCIOLOGICAL FORUM 116, 118 (2008).
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was formed in March 1990 and initially focused on the problems faced by homeless people, an already vulnerable and often disempowered population, because of unchecked police abuse and harassment. Volunteers from Berkeley Copwatch spoke to homeless people about their experiences with the police and literally stood witness to police misconduct as neutral civil rights observers in homeless shelters and elsewhere, creating statements of what they witnessed and using still photographs in their advocacy and support of homeless people. (Id. ¶ 7.) With changes in technology, Berkeley Copwatch has increasingly used photography and video of police conduct to further their mission, and has trained communities around the country about their rights vis a vis the police, about exercising their right to record police activity in public in an appropriate and productive manner, and how to use documentary evidence in advocacy efforts. (Id. ¶ 8.) In fact, for the past fifteen years, the University of California at Berkeley has offered an undergraduate course taught by Berkeley Copwatch volunteers on these matters as well as about civic engagement and participatory democracy. (Id. ¶ 17.) Berkeley Copwatch is a prime example of how knowledge and exercise of the right to record police activity fosters greater civic engagement, whether through direct engagement with elected and other government officials, bringing together different communities with shared experiences, and volunteering to train and otherwise share information within their own and other communities.
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In Minneapolis, Minnesota, amici Communities United Against Police Brutality (CUAPB) was formed to assist victims of police brutality, curb police abuse of power, and increase police accountability to the communities they serve. The organization began as a handful of volunteers who came together in 2000, following an incident in which an unarmed individual was shot “dozens” of times by police in an alley behind his home.5 (Gross Dec. ¶ 3.) Today, CUAPB has 150 active volunteers and over 4,000 supporters. (Id. ¶ 4.) CUAPB furthers its mission in part by using videos of police conduct that are created in connection with its own ‘copwatch’ program, through which community members are trained about their rights with respect to police encounters and documenting police activity. (Id. ¶ 8.) Similar to Berkeley Copwatch’s advocacy on behalf of the homeless, CUAPB made a video presentation to the City Council about police misconduct of homeless people, e.g., use of excessive or unnecessary force, confiscation and destruction of their property, with the aim of changing police practices and improving oversight. (Id. ¶ 16.) CUAPB has also presented to City Council and the local Civilian Review Authority (which accepts and investigates complaints of police misconduct) video of police congregating at nightclubs as they are closing and then using excessive force and pepper spray, and mounted police officers
5 Amy Mayron, No Charges Filed Against Officers in Fatal Shooting / Mentally Ill Man Was Killed as He Drove Toward Police in Alley, Saint Paul Pioneer Press (Minnesota) May 17, 2001, Thursday City Edition, Page B3
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almost trampling club patrons with their horses. (Id. ¶ 17.) By exercising their right to record public police activity, CUAPB volunteers and trainees have become more engaged in local governance, discussions about policy reform, and community needs.
In Milwaukee, Wisconsin, Matt Nelson co-founded amici Milwaukee Police Accountability Coalition (MPAC), which has been monitoring and documenting police activities since 2003. Having spent several years in different parts of the country on such ‘copwatch’ trainings and activities, Mr. Nelson has found that, in his experience, “the more people participate in their community and in democratic institutions, the better we are able to improve policy and conditions in our neighborhoods and counteract parts of society that continue to be hostile toward African-Americans and people of color, including community-police relations.” (Nelson Dec. ¶ 23.) And, “Harassing civilians who engage in monitoring police activities, can accelerate an innocuous police-civilian interaction into a potential hostile or dangerous situation for both the officer and civilian. Also, police retaliation of citizen monitors will discourage civilian cooperation of those who may otherwise be in a position to assist good police work.” (Id. ¶ 28.) Mr. Nelson currently works with ColorOfChange.org (CoC), a member-driven non-profit organization that seeks to improve people’s lives by promoting engagement in matters of governance and political life. (Id. ¶ 22.) Issues related to the criminal
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justice system and to police-public encounters are very important to its membership, which is primarily African-American and has experienced instances of police hostility and outright brutality.
C. THE RIGHT TO RECORD POLICE CONDUCT HELPS HOLD LAW ENFORCEMENT ACCOUNTABLE TO THE PUBLIC AND HELPS DETER POLICE MISCONDUCT.
Police officers, as government officials, have responsibilities to the public. The right to record police activity in public places enables community members to ensure that police officers carry out these responsibilities properly and lawfully. And when videotaped material reveals a failure on the part of police officers to live up to their mandates, the ability to disseminate such documentation widely and rapidly through use of new media, can help bring police misconduct, whether individually-rooted or policy-based, to the attention of other government agencies and other communities.
Two prime examples of how video recordings of police brutality was instrumental in bringing this issue to the attention of federal authorities (and people across the country) are those surrounding the police beating of Rodney King in 1992. The video footage brought to some people’s attention, for the first time, the problems of racism in policing and criminal justice, while for others, provided concrete evidence of the type of police misconduct that they had been facing in their communities for years. After a state jury acquitted the officers involved in
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the beating, the Department of Justice announced that it was launching its own
investigation into the incident. A federal grand jury indicted each officer, and a
trial resulted in guilty verdicts for two of the officers.6 More recently, the fatal
shooting of Oscar Grant, an unarmed young black man, by a Bay Area Rapid
Transit officer, was recorded by numerous witnesses on cell phone cameras and
video recorders.7 The footage was disseminated through the press and the internet.
As more and more footage came to light, authorities launched an internal
investigation,8 in addition to subsequent state criminal charges levied against the
officer who fired the fatal shot.9 In the end, two officers were terminated from
service while the third was convicted of involuntary manslaughter, and not greater
charges.10 At that point, the U.S. attorney’s office and FBI announced that they
were commencing their own independent investigation of the incident with the
6 Jim Newton, 2 Officers guilty, 2 Acquitted; Guarded Calm follows Verdicts in King Case; Trial: Federal Jury Finds that Stacey Koon and Laurence Powell violated Beating Victim’s Civil Rights. Sentencing is set for Aug. 4, L.A. TIMES, Apr. 18, 1993, at A1. 7 Henry K. Lee, 3 charged in Shooting Protest; Misdemeanor Counts could Still be lodged against Dozens More, S.F. CHRONICLE, Jan. 10, 2009, at A4; Demian Bulwa, Student's Video given to Police considered Best Look at Killing; Evidence, S.F. CHRONICLE, May 18, 2009, at A5. 8 Marisa Lagos, Video shows Another BART Cop Apparently Striking Oscar Grant, S.F. CHRONICLE, Jan. 25, 2009, at B2. 9 Bob Elgeko and Marisa Lagos, Lawyer tells Why Cop hit Oscar Grant; BART Shooting, S.F. CHRONICLE, Feb. 1, 2009, at B1. 10 Demian Bulwa, BART told to reinstate Officer; Oscar Grant Shooting; Probe That led to Her Firing was Flawed, Arbitrator Says, S.F. CHRONICLE, Dec. 18, 2010, at C1.
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possibility of federal charges.11 The video footage of the shooting served as evidence in the trial and the investigations, and also permitted individuals across the country to learn of what had happened. The strong, national public reactions to the shooting and the dissemination of the various video footage no doubt brought the matter to the light of the federal authorities who otherwise may not have taken interest in the case.
In other cases, the presence of bystanders with video cameras or photographic equipment in tense police-public encounters has helped de-escalate situations and deter potential police abuse. In Minneapolis, residents at homeless shelters who had asked CUAPB to assist by taping their encounters with local law enforcement, told CUAPB that their presence, with cameras, had actually had a calming effect – on both police and lay individuals. (Gross Dec. ¶ 14.) Even after CUAPB volunteers and trainees left, the possibility of being recorded, seemed to deter police officers from engaging in some of the harassment and other abuses of power that had led to CUAPB’s involvement as third-party documentarians. (Id. ¶ 14.) The right to videotape police conduct in public fora can also help create a more professionalized police force. Knowing that their conduct is being recorded does not simply deter “bad actors” but encourages police departments and officers
11 Demian Bulwa, Mehserle convicted - Protests, Looting; Verdict: Jury finds Former BART Officer Guilty on Involuntary Manslaughter Charge, S.F. CHRONICLE, July 9, 2010, at A1.
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to improve their own standards of conduct. To the extent local law enforcement
tries to carry out their job duties while still respecting the civil rights of the
communities they serve, videotaping police conduct is a means to ensure that they
do so. (Nelson Dec. ¶ 24.)
That there is a need and public desire to hold law enforcement accountable
for their actions is reflected by the fact that municipalities across the nation have
established boards to review police conduct. Boston established a Community
Ombudsman Oversight Panel to review police conduct in the wake of the death at
the hands of the Boston Police of a college student in 2004. Boston’s panel
purports to “to ensure that the City of Boston has a highly competent, fair and
thorough process for the review of complaints of misconduct against Boston Police
Officers; … to promote the professionalism of the Boston Police Department; and … to build trust and confidence within the Boston community.”12 Other cities
have similar review boards responsible for some measure of oversight or accountability for the conduct of police officers.13
12 CITY OF BOSTON, ANNUAL REPORT OF COMMUNITY OMBUDSMAN OVERSIGHT PANEL 6 (2009) available at http://www.cityofboston.gov/Images_Documents/COOP_Annual_Report_2009_tcm3-9870.pdf. 13 The following cities have created some form of a civilian complaint review board or other agency outside the police department to investigate complaints of police misconduct: Albany, GA (http://www.albany.ga.us/content/1798/2879/2939/3086/default.aspx); Albuquerque, NM (http://www.cabq.gov/iro/); Austin, TX (http://www.ci.austin.tx.us/opm/); Baltimore, MD
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The right of individuals to make video recordings of police activity supports
the mission of these reviewing bodies and can help make their investigations more
(http://www.ci.baltimore.md.us/government/crb/); Berkeley, CA (http://www.ci.berkeley.ca.us/prc/); Boise, ID (http://www.boiseombudsman.org/); Boston, MA (http://www.cityofboston.gov/police/co-op/default.asp); Buffalo, NY (http://www.ci.buffalo.ny.us/Home/City_Departments/Citizens_Rights_and_Comm unity_Relation); Cambridge, MA (http://www.cambridgema.gov/~PRAB/); Charlotte, NC (http://www.charmeck.org/Departments/City+Clerk/Boards+and+Commissions/Bo ards.htm#Citizens%20Review%20Board); Cincinnati, OH (http://www.cincinnatioh.gov/cca/pages/-5509-/); Dayton, OH (http://www.daytonombudsman.org/); Denver, CO (http://www.denvergov.org/Default.aspx?alias=www.denvergov.org/oim); Detroit, MI (http://www.ci.detroit.mi.us/police_commissioners/); Grand Rapids, MI (http://bit.ly/3qpG47); Iowa City, IA (http://bit.ly/7MGiK); King County, WA (http://www.kingcounty.gov/operations/Ombudsman.aspx); Knoxville, TN (http://www.ci.knoxville.tn.us/boards/parc/); Las Vegas, NV (http://www.citizenreviewboard.com/); Los Angeles, CA (http://www.laoir.com/); Memphis, TN (http://www.cityofmemphis.org/framework.aspx?page=85); MiamiDade, FL (http://www.co.miami-dade.fl.us/irp/); Minneapolis, MN (http://www.ci.minneapolis.mn.us/cra/); New Haven, CT (http://www.cityofnewhaven.com/CivilianReviewBoard/index.asp); New York, NY (http://www.nyc.gov/html/ccrb/); Oakland, CA (http://www.oaklandnet.com/governme nt/citizens/filing_complaints.html); Omaha, NB (http://bit.ly/KZhke); Orange County, FL (http://bit.ly/2LzLL); Philadelphia, PA (http://www.phila.gov/pac/); Pittsburgh, PA (http://www.city.pittsburgh.pa.us/cprb/); Portland, OR (http://www.portlandonline.com/auditor/index.cfm?c=26646&); Prince George’s County, MD (http://www.co.pg.md.us/Government/BoardsCommissions/CCOP/index.asp); Riverside, CA (http://www.riversideca.gov/cprc/); Salt Lake City UT (http://www.slcgov.com/civilianreview/); San Diego, CA (http://www.sandiego.gov/citizensreviewboard/index.shtml); Syracuse, NY (http://www.syracuse.ny.us/deptOther.asp); County of San Diego, CA (http://www.sdcounty.ca.gov/clerb/index.html); San Francisco, CA (http://www.sfgov.org/site/occ_index.asp); Seattle, WA (http://www.cityofseattle.net/police/opa/); and Washington, DC (http://www.occr.dc.gov/occr/site/default.asp).
17

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thorough and responsive to community concerns. Both Berkeley Copwatch and the Milwaukee Police Accountability Coalition (MPAC) have used video footage in helping individuals file complaints with local law enforcement review boards. (Prichett Dec. ¶ 10; Nelson Dec. ¶ 19.) And where independent review boards lack sufficient authority or fail to live up to their mandates, organizations like amici have used video and photographic evidence to emphasize the need for meaningful oversight, at times even resulting in community involvement in reforming review board policies and procedures. (Prichett Dec. ¶ 10 (Berkeley Copwatch); Nelson Dec. ¶ 7 (MPAC).) CUAPB came together after community members became frustrated by ineffective oversight by the Minneapolis Police Department’s Internal Affairs Unit and the local independent Civilian Review Authority. Through their various education, outreach, and advocacy efforts – especially their trainings concerning and engagement in videotaping police conduct – CUAPB created a new, citizen-driven mechanism for police accountability, filling the void created by official failures. (Gross Dec. ¶ 3.)
Government entities have themselves sought and relied upon video and photographs documenting law enforcement activity when conducting official reviews of controversial or violent police-public encounters, particularly in the context of lawful mass protests and marches. For example, in May 2008, video footage of 13 or so Philadelphia police officers beating and kicking three men that
18

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they pulled out of a car during a traffic stop, made national news. The Philadelphia
Police Department relied on the video to identify the officers and remove them
from street duty while an investigation was conducted. In the end, eight police officers were fired or disciplined for the conduct recorded on tape.14 And, as
individuals began posting video footage of police misconduct on the internet with
greater frequency, the New York City Police Department asked community members to send such footage directly to them.15
D. THE RIGHT TO RECORD POLICE ACTIVITY SERVES THE INTERESTS OF JUSTICE AND IMPROVES THE JUDICIAL PROCESS.
Photographs and other recordings of police-public interactions promote
justice and improve the judicial process by providing an additional form of
tangible evidence for fact-finders in court proceedings. In many such proceedings,
regardless whether it is a suppression hearing or a civil trial arising from alleged
police misconduct, rulings often turn on the perceived credibility of opposing
witness testimony. Video or photographic evidence expands the universe of factors
to be considered, resulting in the possibility of more accurate or just dispositions.
14 Wendy Ruderman, 4 Cops fired for Beating, PHILADELPHIA DAILY NEWS, May 20, 2008, at 3. 15 Daniel A. Begun, NYPD wants Your Videos to help fight Crime, hothardware.com, Aug. 1, 2008, http://hothardware.com/News/NYPD-WantsYour-Videos-to-Help-Fight-Crime/. (“It's a fact of life,” [New York City Police Department's Commissioner, Ray] Kelly said. “Everybody has a camera in their telephones. When people can record an event taking place that helps us during an investigation, it's helpful.”)
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Such evidence is particularly important given the findings of studies
examining police testimony and juror reactions. For one, there is the problem of
police perjury or, as it has been termed, “testilying.” Among jurors, scholars, and
other court watchers, there is “a widespread belief that testilying is a frequent
occurrence” throughout the nation. Christopher Slobogin, Testilying: Police
Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037, 1040, 1041 (1996).16
In 2004, during the Republican National Convention in New York City, the police
conducted mass arrests of over 1,000 people. However, videotape footage taken by
16 See also Morgan Cloud, The Dirty Little Secret, 43 EMORY L.J. 1311, 1311-12 (1994) (“Judges, prosecutors, defense lawyers, and repeat offenders all know that police officers lie under oath.”); Jerome H. Skolnick, Deception by Police, CRIM. JUST. ETHICS, Summer/Fall 1982, at 40, 42 (concluding that police “systematic[ally]” perjure themselves to achieve convictions); ALAN M. DERSHOWITZ, THE ABUSE EXCUSE 233 (Hachette Book Group 1994) (suggesting that “recent disclosures about rampant police perjury cannot possibly come as any surprise” to those who have practiced criminal law in state or federal courts); ALAN M. DERSHOWITZ, THE BEST DEFENSE xxi-xxii (Random House 1983) (“Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.”); Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 CONN. L. REV. 425, 427 (1996) (asserting that “the reported cases of police lying represent only a fraction of the actual cases in which police lying occurred”); David Kocieniewski, Perjury Dividend-A Special Report, N.Y. TIMES, Jan. 5, 1997, at A1 (noting that according to one New York police officer, “lying under oath was standard procedure”); Lie Detectors Could Curb Police Perjury, USA TODAY, Aug. 1, 1996, (Magazine), at 13 (“[M]any experienced trial lawyers have said they believe police officers frequently lie on the stand.”); Joseph D. McNamara, Has the Drug War created an Officer Liars' Club?, L.A. TIMES, Feb. 11, 1996, at M1 (noting recent perjury scandals have surfaced in police departments in Los Angeles, Boston, New Orleans, San Francisco, Denver, New York, and other large cities; and stating “[H]undreds of thousands of law-enforcement officers commit felony perjury every year testifying about drug arrests.”).
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bystanders, copwatch organizations, legal observers, and the police themselves showed that of the approximately 400 people “arrested that week, video recordings provided evidence that they had not committed a crime or that the charges against them could not be proved, according to defense lawyers and prosecutors.”17 In a 2009 order by Judge Jack B. Weinstein, Senior United States District Court Judge for the Eastern District of New York, found that “[i]nformal inquiry by the court and among the judges of this court, as well as knowledge of cases in other federal and state courts, has revealed anecdotal evidence of repeated, widespread falsification by arresting officers of the New York City Police Department.” Colon v. City of New York, No. 1:09-cv-00008, 2009 U.S. Dist. LEXIS 110520, *4 (E.D.N.Y. Nov. 25, 2009) (order denying motion to dismiss).
While not all police officers commit perjury on the stand or falsify reports, there still exists an inherent power imbalance between law enforcement and ordinary individuals complaining of police misconduct. Many jurors are likely to believe that a police officer is speaking truthfully and take police at their word, as a
17 Jim Dwyer, Videos Challenge Accounts of Convention Arrest, N.Y. TIMES, Apr. 12, 2005, available at http://www.nytimes.com/2005/04/12/nyregion/12video.html. (“Of the 1,670 cases that have run their full course, 91 percent ended with the charges dismissed or with a verdict of not guilty after trial.” In addition, “[b]esides offering little support or actually undercutting the prosecution of most of the people arrested, the videotapes also highlight another substantial piece of the historical record: the Police Department's tactics in controlling the demonstrations, parades and rallies of hundreds of thousands of people were largely free of explicit violence.”)
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basic starting point for evaluating officer credibility. In contrast, lay individuals, who do not carry the power of law enforcement, are not given the same benefit of the doubt from the outset.18 Video evidence can help “level the playing field” by serving as a counterweight to the automatic presumptions people may not consciously realize that they are making when evaluating police-public credibility.
In 2008, a widely reported case in which video evidence served to contradict the official statement of a New York City Police Department (NYPD) officer involved a rider in a monthly “Critical Mass” bike ride who was arrested and held on charges of attempted assault and resisting arrest.19 The arresting officer filed a sworn statement that the rider had charged into the officer with his bicycle, knocking them both to the ground. However, video of the incident, which was taken by a bystander not involved in the bike ride, revealed that none of this was true. In fact the video footage, which was later uploaded to the public YouTube website, showed that the cyclist in fact swerved to avoid running into the officer and that the officer nevertheless tackled him without provocation.20 The NYPD
18 See, e.g., David N. Dorfman, Proving the Lie: Litigating Police Credibility, 26 AM. J. CRIM. L. 455, 471-72 (1999). 19 John Eligon & Colin Moynihan, Police Officer Seen on Tape shoving a Bicyclist is Indicted, N.Y. TIMES, Dec. 16, 2008, at A33. 20 Critical Mass Bicyclist assaulted by NYPD (video), http://www.youtube.com/watch?v=oUkiyBVytRQ (also on file with Center for Constitutional Rights).
22

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placed the officer on modified duty initially and he was later fired.21 IV. CONCLUSION As explained by amici in this brief, the right to record police activity is part
and parcel of the First Amendment right to record and speak on matters of public concern. Not only is the right to record police conduct in public places wellestablished, as demonstrated by Plaintiff-Appellee’s principal brief and concluded by the lower court, it is routinely exercised by individuals and groups across the country to improve community safety, promote civic engagement (particularly by communities that have historically borne the brunt of police misconduct), increase direct and community-driven accountability of local law enforcement. These goals directly align with the principles embodied in the First Amendment and protection of this right is warranted as a matter of law and policy.
21 Trymaine Lee, Police Officer Who Shoved A Bicyclist is Off the Job, N.Y. TIMES, Feb. 20, 2009, at A24.
23

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For the reasons stated above, Amici respectfully request that this Court affirm the ruling of the court below and find in favor of Plaintiff-Appellee Simon Glik.

Date: February 8, 2011

_/s/ Anjana Samant _________________
Anjana Samant CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 (212) 614-6464 Attorneys for the Amici Curiae

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TABLE OF CONTENTS - ADDENDUM I. Declaration of Michelle Gross ....................................................................... 1 II. Declaration of Matt Nelson ............................................................................ 4 III. Declaration of Andrea Pritchett...................................................................... 8

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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C) I, Anjana Samant, as counsel for Amici Curiae, hereby certify, pursuant to Fed. R. App. P. 32(a)(7)(C), as follows: (1) This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 5,510 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and (2) This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14-point type.

Dated: February 8, 2011

Attorney for Amici Curiae
/s/ Anjana Samant. Anjana Samant First Circuit No. 1144702 Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6445

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CERTIFICATE OF SERVICE I certify that on this day I caused the above documents to be served upon the attorneys of record for Plaintiff-Appellee (David Milton, Howard Friedman, and Sarah Wunsch) and counsel for Defendant-Appellants (Lisa Skehill Maki and Ian Prior) via Notice of Docket Activity generated by the Court’s electronic filing system. All attorneys of record for Plaintiffs and Defendants are ECF Filers and will receive service via their respective email addresses.
/s/ Ian Head Ian Head Center for Consitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6470 Dated: February 8, 2011

 
 Case: 10-1764 Document: 00116163648 Page: 1 Date Filed: 01/27/2011 Entry ID: 5522000
10-1764
IN THE
United States Court of Appeals for the First Circuit
SIMON GLIK, Plaintiff-Appellee,
v.
JOHN CUNNIFFE, in his individual capacity; PETER J. SAVALIS, in his individual capacity; JEROME HALL-BREWSTER, in his individual capacity; CITY OF BOSTON, Defendants-Appellants
On Appeal from a Judgment of the United States District Court for the District of Massachusetts
BRIEF OF CITIZEN MEDIA LAW PROJECT, DOW JONES & COMPANY, INC., GATEHOUSE MEDIA, INC., GLOBE NEWSPAPER COMPANY, INC., THE MASSACHUSETTS NEWSPAPER PUBLISHERS
ASSOCIATION, METRO CORP., NBC UNIVERSAL, INC., NEW ENGLAND NEWSPAPER AND PRESS ASSOCIATION, INC., THE NEW YORK TIMES COMPANY, NEWSPAPERS OF NEW ENGLAND, INC.,
THE ONLINE NEWS ASSOCIATION, AND THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AS AMICI CURIAE IN
SUPPORT OF PLAINTIFF-APPELLEE
Christopher T. Bavitz (1st Cir. #1144019) Asst Director, Cyberlaw Clinic, Berkman Center for Internet & Society Clinical Instructor, Harvard Law School 23 Everett St, 2nd Floor, Cambridge, MA 02138 Email: cbavitz@cyber.law.harvard.edu Counsel for Amici Curiae

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Of counsel:
David Ardia Director Citizen Media Law Project Berkman Ctr for Internet & Society 23 Everett Street, 2nd Floor Cambridge, MA 02138
Mark H. Jackson Jason P. Conti Gail C. Gove Dow Jones & Company, Inc. 200 Liberty Street New York, New York 10281
Polly Grunfeld Sack Senior Vice President, Secretary, and General Counsel GateHouseMedia, Inc. 350 WillowBrook Office Park Fairport, New York 14450
George Freeman Vice President
and Assistant General Counsel David McCraw Vice President
and Assistant General Counsel The New York Times Company 18th Floor 620 8th Avenue New York, NY 10018
Peter J. Caruso Caruso & Caruso, LLP One Elm Square Andover, MA 01810 Counsel for The Massachusetts Newspaper Publishers Association

Robert A. Bertsche Prince Lobel Glovsky & Tye LLP 100 Cambridge Street, Suite 2200 Boston, MA 02114 Counsel for Metro Corp. and New England Newspaper and Press Association, Inc.
Steve Chung Media Counsel NBC Universal, Inc. 30 Rockefeller Plaza New York, New York 10112
Aaron Julien Newspapers of New England, Inc. 1 Monitor Drive Concord NH 03301
Jonathan D. Hart Dow Lohnes PLLC 1200 New Hampshire Ave. NW Washington, D.C. 20036-6802 Counsel for The Online News Association
Jonathan M. Albano Bingham McCutchen LLP One Federal Street Boston, MA 02110-1726
Lucy A. Dalglish Gregg P. Leslie The Reporters Committee for Freedom of the Press 1101 Wilson Boulevard, Suite 1100 Arlington, VA 2220

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STATEMENT PURSUANT TO FED. R. APP. P. 29(c)(5) Pursuant to Fed. R. App. P. 29(c)(5), Amici Curiae state as follows: (A) no party’s counsel authored this brief in whole or in part; (B) no party or party’s counsel contributed money that was intended to fund preparing or submitting the brief; and (C) no person — other than the Amici Curiae, their members, or their counsel — contributed money that was intended to fund preparing or submitting the brief.

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CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 29(c), Amici Curiae state as follows: Citizen Media Law Project (“CMLP”) is an unincorporated association based at the Berkman Center for Internet & Society at Harvard University. CMLP is not a publicly held corporation or other publicly held entity. CMLP has no parent corporations, and no publicly held company owns 10% or more of CMLP. Dow Jones & Company, Inc. (“Dow Jones”) is a private, non-governmental party. News Corporation, a publicly held company, is the indirect parent corporation of Dow Jones, and Ruby Newco LLC, a subsidiary of News Corporation and a non-publicly held company, is the direct parent of Dow Jones. No publicly held company owns 10% or more Dow Jones stock. GateHouse Media, Inc. (“GHS”) has no parent company. Fortress Investment Group LLC (“Fortress”), a publicly traded company, owns 39.6 percent of GHS stock. Other then Fortress, no other publicly traded company owns 10% or more of GHS stock. Globe Newspaper Company, Inc. is the publisher of The Boston Globe newspaper and the boston.com web site. It is a wholly owned subsidiary of The New York Times Company, a publicly traded company that has no affiliates or subsidiaries that are publicly owned. No publicly held company owns 10% or more of The New York Times Company’s stock.
1

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Massachusetts Newspaper Publishers Association is a non-stock corporation with no parent company. No publicly held company owns 10% or more of Massachusetts Newspaper Publishers Association.
Metro Corp. is a privately held corporation owned primarily by D. Herbert Lipson and David H. Lipson and trusts that were established for their benefit along with the benefit of their heirs. No publicly held corporation owns 10% or more of Metro Corp.’s stock.
NBC Universal, Inc. is the owner of the NBC Television Group, including the NBC Television Network, CNBC, MSNBC, NBC.com, and other media companies. It currently is owned by General Electric and Vivendi, both of which are publicly traded.
New England Newspaper and Press Association, Inc. is a non-profit corporation. It has no parent, and no publicly held corporation owns 10% or more of its stock.
The New York Times Company is the publisher of The New York Times newspaper, the NYTimes.com web site, and other newspapers and web sites. It is a publicly traded company and has no affiliates or subsidiaries that are publicly owned. No publicly held company owns 10% or more of its stock.
Newspapers of New England, Inc. is not publicly traded, has no parent, and no publicly traded entity holds 10% or more of its stock.
2

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Online News Association is a not-for-profit organization, it has no parent corporation, and there is no publicly traded corporation that owns 10% or more of its stock.
The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors. It has no parent company and issues no stock.
3

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

iii

INTRODUCTION AND SUMMARY OF ARGUMENT

1

STATEMENT OF INTEREST OF AMICI

3

SUMMARY OF FACTS

4

ARGUMENT

5

I. Absent a requirement that the subject of an intercepted conversation have a

reasonable expectation of privacy, the Wiretap Statute is unconstitutionally

overbroad.

5

A. To the extent that it fails to require a reasonable expectation of privacy,

the Wiretap Statute is anomalous and excessively broad.

6

B. There is a clearly established First Amendment right to record public

events like the one at issue.

9

1. Supreme Court precedent clearly provides that the First Amendment

protects the right to gather information.

9

2. The First Amendment right to gather information must at a minimum

encompass the right to record matters of public interest.

11

3. Citizens like Glik should be afforded no less information-gathering

protection than traditional media organizations.

13

4. This Court should clearly enunciate its recognition of a constitutional

right to record even if it holds in favor of Defendants-Appellants on their

qualified immunity claim.

14

C. As a restriction on newsgathering activities, the Wiretap Statute can

only be applied consistently with the First Amendment where there exists

a reasonable privacy interest.

15

II. Failure to limit the Statute to communications over which there is no

reasonable expectation of privacy will chill socially valuable newsgathering

and watchdog activities and suppress the spread of important information.

17

A. Criminalizing the recording of public events as to which there is no

reasonable expectation of privacy will chill recordings that provide critical

evidence on which both the public and police rely.

18

i

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B. The Statute should not be read to inhibit newsgathering and hamper

public discourse.

22

C. Absent limitation, the Wiretap Statute will lend itself to ambiguous application and misconstrual and will chill more recordings than intended. 25

CONCLUSION

29

ii

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TABLE OF AUTHORITIES

Cases

ACLU v. Alvarez, 2011 U.S. Dist. LEXIS 2088 (N.D. Ill. Jan. 10, 2011) 12 n. 5

Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010)

11

Bartnicki v. Vopper, 532 U.S. 514 (2001)

16, 16 n. 8

Blackston v. Alabama, 30 F.3d 117 (11th Cir. 1994)

12

Branzburg v. Hayes, 408 U.S. 665 (1972)

2, 10

Commonwealth v. Gordon, 422 Mass. 816, 666 N.E.2d 122 (1996)

6

Commonwealth v. Hyde, 434 Mass. 594, 750 N.E.2d 963 (2001)

17 n. 9, 19, 25, 25 n. 10, 26

Commonwealth v. Rivera, 445 Mass. 119, 833 N.E.2d. 1113 (2005)

21, 28

Demarest v. Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d

82 (D. Mass. 2002)

12

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)

14 n. 6

First Nat’l Bank of Bos. v. Belotti, 435 U.S. 765 (1978)

10–11

Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)

11–12, 12 n. 4

Gauthier v. Police Comm’r of Bos., 408 Mass. 335, 557 N.E.2d

1374 (1990)

7–8

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)

11

Gouin v. Gouin, 249 F. Supp. 2d 62 (D. Mass. 2003)

25

Jean v. Mass. State Police, 492 F.3d 24 (1st Cir. 2007)

2, 5, 15–17

Katz v. United States, 389 U.S. 347 (1967)

8, 27, 28

Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010)

12 n. 5

Martin v. City of Struthers, 319 U.S. 141 (1943)

10

Nelson v. Salem State Coll., 446 Mass. 525, 845 N.E.2d 338 (2006)

28

Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905)

8

Pearson v. Callahan, 129 S. Ct. 808 (2009)

9, 14, 16

Pell v. Procunier, 417 U.S. 817 (1974)

11, 13

iii

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Pleasant Grove City, Utah v. Summum, 129 S.Ct. 1125 (2009) Potts v. City of Lafayette, Indiana, 121 F.3d 1106 (7th Cir. 1997) Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) Saucier v. Katz, 533 U.S. 194 (2001) Saxbe v. Wash. Post, 417 U.S. 843 (1974) Scott v. Harris, 550 U.S. 372 (2007) Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) Stanley v. Georgia, 394 U.S. 557 (1969) United States v. Bucci, 582 F.3d 108 (1st Cir. 2009) United States v. Dunbar, 553 F.3d 48 (1st Cir. 2009) United States v. Hawkins, 139 F.3d 29 (1st Cir. 1998) United States v. Jacobsen, 466 U.S. 109 (1984) United States v. Larios, 593 F.3d 82 (1st Cir. 2010) United States v. Sparks, 2010 U.S. Dist. LEXIS 120257
(D. Mass. Nov. 10, 2010) Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748 (1976) Ward v. Rock Against Racism, 491 U.S. 781 (1989) Wishart v. McDonald, 500 F.2d 1110 (1st Cir. 1974)

15 n. 7 12 n. 5
10 9, 14 n. 6 11, 13–14
20 12 10 27 27 27–28 28 28
28
10 15 n. 7
28

Statutes 18 U.S.C. § 2510(2) (2006) Ala. Code § 13A-11-30(1) (2010) Ariz. Rev.Stat. Ann. § 13-3001(8) (2010) Cal. Penal Code § 632(a) & (c) (Deering 2010) Colo. Rev. Stat. § 18-9-301(8) (2010) Del. Code Ann. § 2401(13) (2010) D.C. Code § 23-541(2) (2010)

6 n. 2, 16 n. 8 6 n. 2 6 n. 2 6 n. 2
6–7 n. 2 7 n. 2 7 n. 2

iv

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Fla. Stat. § 934.02(2) (2010) Ga. Code Ann. § 16-11-62(1) (2010) Haw. Rev. Stat. § 803-41 (2010) Idaho Code Ann. § 18-6701(2) (2010) Iowa Code § 808B.1(8) (2010) Kan. Stat. Ann. § 22-2514(2) (2010) Ky. Rev. Stat. Ann. § 526.010, (LexisNexis 2010) La. Rev. Stat. Ann. § 15:1302(14) (2010) Mass. Gen. Laws ch. 214, § 1B (West 2010) Mass. Gen. Laws ch. 272, § 99 (West 2010) Me. Rev. Stat. tit. 15, § 709(4)(B) & 709(5) (2010) Md. Code. Ann., Cts. & Jud. Proc. §10-401(2)(i) (2010) Mich. Comp. Laws § 750.539a (2010) Minn. Stat. § 626A.01(4) (2010) Miss. Code Ann. § 41-29-501(j) (2010) Mo. Rev. Stat. § 542.400(8) (2010) Neb. Rev. Stat. § 86-283 (2010) Nev. Rev. Stat. § 179.440 (2010) N.H. Rev. Stat. Ann. 570-A:1 (2010) N.J. Stat. Ann. § 2A:156A-2(b) (West 2010) N.C. Gen. Stat. § 15A-286(17) (2010) N.D. Cent. Code § 12.1-15-04(5) (2010) Ohio Rev. Code Ann. § 2933.51(B) (LexisNexis 2010) Okla. Stat. tit. 13, § 176.2(12) (2010) 18 Pa. Cons. Stat. Ann. § 5702 (West 2010) R.I. Gen. Laws § 12-5.1-1(10) (2010) S.C. Code Ann. § 17-30-15(2) (2010) S.D. Codified Laws § 23A-35A-1(10) (2010) Tenn. Code Ann. § 40-6-303(14) (2010)
v

7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2
7, 8 1, 5, 25 n. 10
7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2 7 n. 2

Case: 10-1764 Document: 00116163648 Page: 12 Date Filed: 01/27/2011 Entry ID: 5522000

Tex. Code Crim. Proc. Ann. art. 18.20(2) (West 2010) Utah Code Ann. 77-23a-3(13) (LexisNexis 2010) Va. Code Ann. § 19.2-61 (West 2010) Wash. Rev. Code § 9.73.030(1)(b) (2010) W. Va. Code § 62-1D-2(h) (2010) Wis. Stat. § 968.27(12) (2010) Wyo. Stat. Ann. § 7-3-701(a)(xi) (2010)

7 n. 2 7 n. 2 7 n .2 7 n. 2 7 n. 2 7 n. 2 7 n. 2

Other Authorities

bobetheridgeassault, Complete, Un-edited Bob Etheridge Assault on

Student Video, YouTube (June 17, 2010),

http://www.youtube.com/watch?v=UNfH76TS8d8

24

Demian Bulwa, Mehserle Convicted of Involuntary Manslaughter,

S.F. Chronicle, July 9, 2010, http://www.sfgate.com/cgi-

bin/article.cgi?f=/c/a/2010/07/08/BAM21EBDOD.DTL

19

CBSNewsOnline, Moments after Haiti Quake, YouTube (Jan. 18, 2010),

http://www.youtube.com/watch?v=KzcHWuPjyiI

23

Amanda Covarrubias & Stuart Silverstein, A Third Incident, A New

Video: A Cellphone Camera Captures UCLA Police Using Taser

on a Student who Allegedly Refused to Leave the Library Tuesday

Night, L.A. Times, Nov. 16, 2006, at B1

19

DNAinfo, Manhattan Local News, Lawyer Hopes Video will Exonerate Chinatown Teen Accused of Murder, Dec. 7, 2010, http://www.dnainfo.com/20101207/lower-east-side-east-village/ lawyer-hopes-video-will-exonerate-chinatown-teen-on-trial-forhester-street-murder

21–22

John Eligon, Former Officer Is Found Guilty of Lying About Confrontation

With Bicyclist, N.Y. Times, April 30, 2010, at A19

19–20

Dan Gillmor, We the Media: Grassroots Journalism by the People,

for the People (2006)

13

vi

Case: 10-1764 Document: 00116163648 Page: 13 Date Filed: 01/27/2011 Entry ID: 5522000

Sara Jean Green & Steve Miletich, Video of SPD Officer Kicking Prone Man

Sparks Internal Investigation, Seattle Times, May 7, 2010,

http://seattletimes.nwsource.com/html/localnews/2011807341_

copinvestigation08m.html

20

Roy S. Gutterman, Chilled Bananas: Why Newsgathering Demands More First Amendment Protection, 50 Syracuse L. Rev. 197 (2000)

17–18

Brian Lehrer, A Million Little Murrows: New Media and New Politics,

17 Media L. & Pol’y 1 (2008)

18, 23, 24

Jack Leonard, Dramatic Video of BART Shooting Released by Court,

L.A. Times Blog, (June 24, 2010, 5:13 PM),

http://latimesblogs.latimes.com/lanow/2010/06/dramatic-video-of-

bart-shooting-released-by-court.html

18

maxisdx, Virginia Tech Shooting Rampage, YouTube (Apr. 16, 2007),

http://www.youtube.com/watch?v=cSbZmd-l8n8

23

Mike Miliard, Sound Off, Bos. Phoenix (Dec. 13, 2006),

http://thephoenix.com/boston/news/29700-sound-off

25

NRAVideos, Barack Obama – “Bitter Gun Owners”, YouTube

(May 21, 2008), http://www.youtube.com/watch?v=VZWaxjiQyFk

24

Alison L. Patton, Note, The Endless Cycle of Abuse: Why 42 U.S.C.

§ 1983 is Ineffective in Deterring Police Brutality, 44 Hastings L.J.

753 (1993)

20

powerclam, Joe Biden’s Racist Slip, YouTube (July 6, 2006),

http://www.youtube.com/watch?v=sM19YOqs7hU

24

William Prosser, Privacy, 48 Cal. L. Rev. 383 (1960)

9

Report of the Independent Commission on the Los Angeles Police

Department (1992)

19

Restatement (First) of Torts § 867 cmt. c (1939)

9

Daniel Rowinski, Police Fight Cellphone Recordings, Bos. Globe, Jan. 12, 2010, at A1

25, 26

Robert Santiago, Taser Incident: Report Clears Campus Police at UF,

Miami Herald, Oct. 25, 2007, at B1

20

Harvey A. Silvergate & James Tierney, Op-Ed., Preventing Oversight for Police Misconduct, Mass. Law. Wkly., Jan. 28, 2008

25–26

vii

Case: 10-1764 Document: 00116163648 Page: 14 Date Filed: 01/27/2011 Entry ID: 5522000

Lisa A. Skehill, Note, Cloaking Police Misconduct in Privacy: Why

the Massachusetts Anti-Wiretapping Statute Should Allow for

Surreptitious Recording of Police Officers, 42 Suffolk U. L.

Rev. 981 (2009)

6, 20, 21, 25, 26

Brian Stelter, Honoring Citizen Journalists, N.Y. Times, Feb. 22,

2010, at B5

22

Teacher Accused of Hitting Student Exonerated, WSVN-TV, Mar. 13, 2008,

http://www1.wsvn.com/news/articles/local/MI79758/

22

Matthew D. Thurlow, Lights, Camera, Action: Video Cameras as Tools of

Justice, 23 J. Marshall J. Computer & Info. L. 771 (2005)

21

Jason Trahan & Tanya Eiserer, Cameras a Candid Witness: In-Car Video More Likely to Clear Police Officers Accused of Misconduct, Experts Say, Dallas Morning News, Mar. 26, 2009, at 1A

20-21

Milton J. Valencia, Video of Roxbury Arrest Reviewed, Bos. Globe,

Oct. 28, 2010

20

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L.

Rev. 193 (1890)

8–9

Stephen T. Watson, Police Going to the Replay, Buffalo News,

Apr. 6, 2009, at A1

21

Neil L. York, The Boston Massacre: A History with Documents

ch. 19-22 (2010)

1

zkman, George Allen Introduces Macaca, YouTube (Aug. 15, 2006),

http://www.youtube.com/watch?v=r90z0PMnKwI

24

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Case: 10-1764 Document: 00116163648 Page: 15 Date Filed: 01/27/2011 Entry ID: 5522000
INTRODUCTION AND SUMMARY OF ARGUMENT This case presents the issue of whether the First Amendment forbids the government from prosecuting citizens for collecting and disseminating accurate information about alleged acts of official misconduct, specifically when those acts occur in a public place where there is no reasonable expectation of privacy. Although Defendants-Appellants1 claim the answer to this question remained unsettled some 215 years after the ratification of the Bill of Rights, the First Amendment clearly establishes otherwise. The events at issue occurred on the Boston Common, the very place where British Forces were encamped during the Revolutionary War. The incident filmed by Plaintiff-Appellee Simon Glik (“Glik”) took place not far from the location of the Boston Massacre, in which British troops killed five colonists. The Founders relied on accounts of the event to gain support for their cause. See generally Neil L. York, The Boston Massacre: A History with Documents ch. 19-22 (2010). To permit the arrest of Glik under the Massachusetts Wiretap Statute, Mass. Gen. Laws ch. 272, § 99 (West 2010) (the “Wiretap Statute” or “Statute”) would be tantamount to suggesting that the Framers were less than explicit about whether the Constitution protects citizens who gather and disseminate information about
1 Although all defendants appealed, only officers Cunniffe, Savalis, and HallBrewster (referred to herein as “Defendants-Appellants”) pursued their appeal.
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Case: 10-1764 Document: 00116163648 Page: 16 Date Filed: 01/27/2011 Entry ID: 5522000
alleged abuses of official power. This suggestion runs counter to the text, history, and longstanding interpretation of the First Amendment.
The Wiretap Statute advances the valuable goal of safeguarding the interests of Massachusetts citizens in having their private conversations remain private. The Statute does this by criminalizing secret interception of conversations. As applied by police in this case and others, however, the Statute has become a tool of suppression rather than protection. This Court should ensure that the purpose of the Statute—protection of privacy—guides its interpretation and limits its scope to cases where privacy is actually at stake in order to avoid infringing upon fundamental liberties.
The First Amendment protects freedoms of the press and of speech and, as a corollary, safeguards the rights of journalists to gather news and information. See Branzburg v. Hayes, 408 U.S. 665, 681 (1972). That protection applies no less forcefully to citizen journalists. Cf. id. at 684 (“It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”). This Court has recognized that the Statute must be applied with sensitivity to First Amendment rights. See Jean v. Mass. State Police, 492 F.3d 24, 30 (1st Cir. 2007) (upholding First Amendment right to publish surreptitiously recorded video of police misconduct).
2

Case: 10-1764 Document: 00116163648 Page: 17 Date Filed: 01/27/2011 Entry ID: 5522000
In a situation where parties to an intercepted conversation do not have a reasonable expectation of privacy, it cannot be said that any state interest is advanced by criminalizing recording of that conversation. Thus, such criminalization burdens the First Amendment right to record public events. For this reason, the Court should hold that using the Wiretap Statute to impose criminal liability where there is no reasonable expectation of privacy violates a constitutional right, and that such use of the Statute is thus forbidden. So limiting the Statute’s application would be judicially administrable and familiar and would do much to avoid a chill on socially valuable—sometimes crucial—recording activities.
STATEMENT OF INTEREST OF AMICI CURIAE As set forth more fully in the accompanying motion for leave to file this brief, Amici Curiae Citizen Media Law Project, Dow Jones & Company, Inc., GateHouse Media, Inc., Globe Newspaper Company, Inc., The Massachusetts Newspaper Publishers Association, Metro Corp., NBC Universal, Inc., New England Newspaper and Press Association, Inc., The New York Times Company, Newspapers of New England, Inc., The Online News Association, and The Reporters Committee for Freedom of the Press (collectively, the “Amici” or “Amici Curiae”) have a strong interest in ensuring that the Statute does not impede the vital role that journalists, publishers, and others play in promoting discussion of
3

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matters of public concern. Amici request that this Court find Glik’s clearly established First Amendment rights were violated when he was arrested under the Statute and that the Statute cannot be applied consistently with the First Amendment in a situation where the parties to an intercepted communication do not have a reasonable expectation of privacy. The Court should affirm the lower court’s denial of Defendants-Appellants’ motion to dismiss.
SUMMARY OF FACTS Amici rely on the statement of facts set forth in Glik’s brief. Pls. Br. 5-6. By way of short summary, Glik was arrested after visibly and openly using his cellular phone to make an audiovisual recording of police officers arresting a man on the Boston Common and, in Glik’s opinion, using excessive force. The police, who plainly observed Glik and his phone, asked whether the phone had audio recording capabilities and arrested Glik after he told them it did. Glik was charged with, inter alia, violation of the Statute. Those charges were dismissed, and Glik filed a complaint in federal district court, alleging that the police and the City of Boston violated his civil rights. Defendants-Appellants moved to dismiss the case, the lower court denied that motion, and Defendants-Appellants appealed such denial based on qualified immunity.
4

Case: 10-1764 Document: 00116163648 Page: 19 Date Filed: 01/27/2011 Entry ID: 5522000
ARGUMENT
I. Absent a requirement that the subject of an intercepted conversation have a reasonable expectation of privacy, the Wiretap Statute is unconstitutionally overbroad.
The Wiretap Statute criminalizes “interception of any wire or oral
communication.” Mass. Gen. Laws ch. 272, § 99(C)(1). The Statute defines
“interception” as “to secretly hear, secretly record, or aid another to secretly hear
or secretly record the contents of any wire or oral communication through the use
of any intercepting device by any person other than a person given prior authority
by all parties to such communication.” Id. § 99(B)(4).
The state interest promoted by the Statute is the privacy of Massachusetts
citizens. The Statute’s preamble makes clear that its purpose is to counteract
threats to privacy posed by the proliferation of eavesdropping technology:
The general court finds that . . . the increasing activities of organized crime constitute a grave danger to the public welfare and safety. . . . [L]aw enforcement officials must be permitted to use modern methods of electronic surveillance, under strict judicial supervision, when investigating these organized criminal activities. The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited. The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime.
Id. § 99(A). This Court recently recognized that the state interest advanced by the
Statute is in “protecting the privacy of its citizens.” See Jean, 492 F.3d at 29–30.
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Case: 10-1764 Document: 00116163648 Page: 20 Date Filed: 01/27/2011 Entry ID: 5522000
The Massachusetts Supreme Judicial Court has affirmed that “[i]t is apparent from the preamble that the legislative focus was on the protection of privacy rights and the deterrence of interference therewith by law enforcement officers’ surreptitious eavesdropping as an investigative tool.” Commonwealth v. Gordon, 422 Mass. 816, 833, 666 N.E.2d 122, 134 (1996). Application of the Statute, especially when other substantial interests are at stake, must be guided by that purpose. That purpose is plainly not served if the Statute is applied to criminalize recording of communications as to which parties have no reasonable expectation of privacy.
A. To the extent that it fails to require a reasonable expectation of privacy, the Wiretap Statute is anomalous and excessively broad.
Massachusetts is one of the only states whose wiretap statute does not explicitly require parties to the intercepted communication to have an expectation justified under the circumstances that the communication is not subject to interception in order for the interception to be criminal. See Lisa A. Skehill, Note, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981, 991 (2009).2 But, the fact that the text of the Statute omits the
2 Indeed, more than three dozen states, the District of Columbia, and the federal government recognize that the subject of a recording must have a reasonable expectation of privacy in their criminal wiretapping statutes. See 18 U.S.C. § 2510(2) (2010); Ala. Code § 13A-11-30(1) (2010); Ariz. Rev.Stat. Ann. § 133001(8) (2010); Cal. Penal Code § 632(a) & (c) (Deering 2010); Colo. Rev. Stat. §
6

Case: 10-1764 Document: 00116163648 Page: 21 Date Filed: 01/27/2011 Entry ID: 5522000
limiting phrase, “reasonable expectation of privacy” does not mean it should be
applied without reference to such limitation.
The privacy tort context in Massachusetts provides an instructive analogy
and illustrates the importance of limiting the scope of liability based on privacy
interests at stake. The Massachusetts legislature created a statutory cause of action
“against unreasonable, substantial or serious interference with . . . privacy.” Mass.
Gen. Laws ch. 214, § 1B (West 2010). Like the common law right that exists in
other states, this statutory right has been cabined by reference to reasonable
expectations of privacy. See Gauthier v. Police Comm’r of Bos., 408 Mass. 335,
339, 557 N.E.2d 1374, 1376 (1990) (dismissing action by discharged police cadet
18-9-301(8) (2010); Del. Code Ann. § 2401(13) (2010); D.C. Code § 23-541(2) (2010); Fla. Stat. § 934.02(2) (2010); Ga. Code Ann. § 16-11-62(1) (2010); Haw. Rev. Stat. § 803-41 (2010); Idaho Code Ann. § 18-6701(2) (2010); Iowa Code § 808B.1(8) (2010); Kan. Stat. Ann. § 22-2514(2) (2010); Ky. Rev. Stat. Ann. § 526.010, (LexisNexis 2010); La. Rev. Stat. Ann. § 15:1302(14) (2010); Me. Rev. Stat. tit. 15, § 709(4)(B) & 709(5) (2010); Md. Code. Ann., Cts. & Jud. Proc. §10401(2)(i) (2010); Mich. Comp. Laws § 750.539a (2010); Minn. Stat. § 626A.01(4) (2010); Miss. Code Ann. § 41-29-501(j) (2010); Mo. Rev. Stat. § 542.400(8) (2010); Neb. Rev. Stat. § 86-283 (2010); Nev. Rev. Stat. § 179.440 (2010); N.H. Rev. Stat. Ann. 570-A:1 (2010); N.J. Stat. Ann. § 2A:156A-2(b) (West 2010); N.C. Gen. Stat. § 15A-286(17) (2010); N.D. Cent. Code § 12.1-15-04(5) (2010); Ohio Rev. Code Ann. § 2933.51(B) (LexisNexis 2010); Okla. Stat. tit. 13, § 176.2(12) (2010); 18 Pa. Cons. Stat. Ann. § 5702 (West 2010); R.I. Gen. Laws § 12-5.11(10) (2010); S.C. Code Ann. § 17-30-15(2) (2010); S.D. Codified Laws § 23A35A-1(10) (2010); Tenn. Code Ann. § 40-6-303(14) (2010); Tex. Code Crim. Proc. Ann. art. 18.20(2) (West 2010); Utah Code Ann. 77-23a-3(13) (LexisNexis 2010); Va. Code Ann. § 19.2-61 (West 2010); Wash. Rev. Code § 9.73.030(1)(b) (2010); W. Va. Code § 62-1D-2(h) (2010); Wis. Stat. § 968.27(12) (2010); Wyo. Stat. Ann. § 7-3-701(a)(xi) (2010).
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Case: 10-1764 Document: 00116163648 Page: 22 Date Filed: 01/27/2011 Entry ID: 5522000
under § 1B, noting the “diminution of the cadets’ reasonable expectation of privacy due to the obvious physical and ethical demands of their employment”). That is true even though the privacy statute does not expressly refer to such an expectation.
Interpreting privacy laws in Massachusetts to incorporate limitations based on reasonable expectations of privacy accords with the history of the protection of privacy interests. Use of the phrase “reasonable expectation of privacy” probably did not become widespread until after the Supreme Court’s Katz decision, which pertained to Fourth Amendment jurisprudence. See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). But, the idea of such an expectation is a familiar one in privacy law. Indeed, since the right of privacy was first recognized as a distinct concept and independent cause of action in tort law, authorities have held that privacy tort liability should be limited by reference to reasonable social expectations. See, e.g., Pavesich v. New England Life Ins. Co., 122 Ga. 190, 201, 50 S.E. 68, 72-73 (1905) (right of privacy “must be made to accord with . . . the rights of any person who may be properly interested in the matters which are claimed to be of purely private concern”). In their seminal article about privacy rights, Warren and Brandeis noted, “[t]he general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man’s life has ceased to be private . . . to that extent the protection is to be withdrawn.”
8

Case: 10-1764 Document: 00116163648 Page: 23 Date Filed: 01/27/2011 Entry ID: 5522000
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 215 (1890). See also Restatement (First) of Torts § 867 cmt. c (1939) (“One who is not a recluse must expect the ordinary incidents of community life of which he is a part”); William Prosser, Privacy, 48 Cal. L. Rev. 383, 391 (1960) (“It is clear also that the thing into which there is prying or intrusion must be, and be entitled to be, private.”).
Because the Statute gives rise to criminal liability (and thus potential loss of liberty), it is even more crucial than in the tort context that it be narrowly directed to the privacy interest it serves. Accordingly, this Court should hold that the Statute cannot be used to prosecute those who record activities and conversations when the subjects of such recordings do not reasonably expect those activities and conversations to be private.
B. There is a clearly established First Amendment right to record public events like the one at issue. 1. Supreme Court precedent clearly provides that the First Amendment protects the right to gather information.
Evaluating Defendants-Appellants’ qualified immunity argument requires a determination of whether the act at issue (1) “violated a constitutional right” that (2) was clearly established. Saucier v. Katz, 533 U.S. 194, 201–02 (2001), overruled in part on other grounds, Pearson v. Callahan, 129 S. Ct. 808 (2009).3
3 See discussion infra Sec. I(B)(4).
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Case: 10-1764 Document: 00116163648 Page: 24 Date Filed: 01/27/2011 Entry ID: 5522000
As to the first prong, the First Amendment rights to disseminate and receive information are well recognized. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756–57 (1976) (“[T]he protection afforded is to the communication, to its source and to its recipients both.”); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well established that the Constitution protects the right to receive information and ideas.”); Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (“This freedom embraces the right to distribute literature . . . and necessarily protects the right to receive it.”). But, the constitutional guarantee of freedom of the press begins with the right to gather information. Indeed, the Supreme Court has noted that “without some protection for seeking out the news, freedom of the press could be eviscerated.” Branzburg, 408 U.S at 681.
Taken together, these three rights are links in a chain that ensures a free press; a burden on a single link burdens press freedom in its entirety. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980) (plurality opinion) (“In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees.”); cf. First Nat’l Bank of Bos. v. Belotti, 435 U.S. 765, 783 (1978) (“[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting
10

Case: 10-1764 Document: 00116163648 Page: 25 Date Filed: 01/27/2011 Entry ID: 5522000
the stock of information from which members of the public may draw.”); Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061 (9th Cir. 2010) (“Neither the Supreme Court nor our court has ever drawn a distinction between the process of creating a form of pure speech . . . and the product of these processes . . . in terms of the First Amendment protection afforded.”). The right to gather news is thus among those freedoms that, “while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982) (holding public exclusion from criminal trial unconstitutional under strict scrutiny analysis); see also Pell v. Procunier, 417 U.S. 817, 834 (1974) (recognizing right to gather news, but holding that government has no affirmative duty to provide non-public information to newsgatherers); Saxbe v. Wash. Post, 417 U.S. 843, 850 (1974) (same).
2. The First Amendment right to gather information must at a minimum encompass the right to record matters of public interest.
Numerous courts have helped to define the right to gather news, recognizing that—at the very least—there is a “First Amendment right to film matters of public interest.” Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (emphasis
11

Case: 10-1764 Document: 00116163648 Page: 26 Date Filed: 01/27/2011 Entry ID: 5522000
added).4 The Eleventh Circuit similarly noted that “[t]he First Amendment
protects the right to gather information about what public officials do on public
property, and specifically, a right to record matters of public interest.” Smith v.
City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding plaintiffs “had a
First Amendment right, subject to reasonable time, manner and place restrictions,
to photograph or videotape police conduct”). See also Blackston v. Alabama, 30
F.3d 117, 120 (11th Cir. 1994) (noting prohibition on recording a public meeting
“touched on expressive conduct protected by the Free Speech Clause”). And,
following Fordyce and Cumming, the United States District Court for the District
of Massachusetts recognized “a constitutionally protected right to record matters of
public interest.” Demarest v. Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82, 94 (D. Mass. 2002).5
4 While the Fordyce court found no clear violation of this right, it did so on the basis that the recording at issue captured a conversation that could reasonably have been considered private. Fordyce, 55 F.3d at 439-440. 5 Cf. Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (finding, in the Third Circuit, the right to videotape police officers not clearly established in the particular, narrow context of “inherently dangerous” traffic stops); ACLU v. Alvarez, 2011 U.S. Dist. LEXIS 2088 (N.D. Ill. Jan. 10, 2011) (finding, in analysis of standing, no right to audio-record police, based in part on misplaced reading of Potts v. City of Lafayette, Indiana, 121 F.3d 1106, 1111 (7th Cir. 1997), which held simply that banning persons without media passes from bringing objects that could potentially be thrown, including tape recorders, into a KKK rally was a narrowly tailored restriction justified on safety grounds).
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Case: 10-1764 Document: 00116163648 Page: 27 Date Filed: 01/27/2011 Entry ID: 5522000
3. Citizens like Glik should be afforded no less informationgathering protection than traditional media organizations.
The right to gather news is not limited to journalists employed by established media organizations. Citizen journalists have played an important role in informing the public throughout this country’s history, counting among their number Benjamin Franklin with his Pennsylvania Gazette, Thomas Paine with his well-known pamphlets, and the authors of the Federalist Papers. See generally Dan Gillmor, We the Media: Grassroots Journalism by the People, for the People (2006). Now that modern technology has given even citizens of modest means the ability to capture news using inexpensive digital cameras and publish their findings on the Internet, distinctions between citizen journalism and “traditional” journalism have become blurred. The First Amendment right to gather information must protect both private citizens and traditional journalists.
Supreme Court jurisprudence already recognizes that the press has no greater right to access government information than the public at large. See Pell, 417 U.S. at 834 (“[N]ewsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.”); Saxbe, 417 U.S. at 849 (holding access restriction constitutional because “the Bureau of Prisons visitation policy does not place the press in any less advantageous position than the public
13

Case: 10-1764 Document: 00116163648 Page: 28 Date Filed: 01/27/2011 Entry ID: 5522000
generally”). Affording Glik First Amendment protections in this context is thus
consistent with legal precedents.
4. This Court should clearly enunciate its recognition of a constitutional right to record even if it holds in favor of Defendants-Appellants on their qualified immunity claim.
The Supreme Court has indicated that courts may exercise discretion in
deciding whether to address the first prong of the qualified immunity analysis
(evaluating whether the conduct in question violated a constitutional right) if the
second prong (evaluating whether the right was clearly established) is not satisfied.
See Pearson, 129 S. Ct. at 818 (2009). Amici submit that, in this case, the second
prong has been satisfied.6 That said, Amici request that this Court acknowledge the
existence of a constitutional right regardless of its opinion on the applicability of
qualified immunity. A clear statement that the First Amendment encompasses the
right to record would deter an officer who might otherwise arrest a future Glik and
would thereby prevent repeated infringement upon the freedoms at issue. Even if
6 Addressing the second prong, Defendants-Appellants suggest that an extremely specific right—the right to record police conduct—must be clearly established in order to overcome their qualified immunity. Def.’s Br. 8. This argument is too narrow; “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. Applying that standard, it is enough to show that a reasonable officer would know that it is lawful to make recordings that do not contravene reasonable privacy expectations, particularly when the recording is of a matter of public interest. Cf., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761–62 (1985) (distinguishing between matters of public and private interest).
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Case: 10-1764 Document: 00116163648 Page: 29 Date Filed: 01/27/2011 Entry ID: 5522000
this Court determines the right at issue was not clearly established at the time of
Glik’s arrest, the value in acknowledging this right outweighs the efficiency and
prudential values served by abstaining from addressing the issue. Id. at 818–20.
C. As a restriction on newsgathering activities, the Wiretap Statute can only be applied consistently with the First Amendment where there exists a reasonable privacy interest.
Enforcement of the Statute must occur within the boundaries of the First
Amendment right to gather information. Whether it is viewed as a content-based
restriction (subject to strict scrutiny) or a content-neutral restriction (subject to intermediate scrutiny),7 the Statute cannot be constitutional if it criminalizes the
recording of events as to which there is no reasonable expectation of privacy.
Under such circumstances, the Statute would significantly burden expressive and
constitutionally protected activity while serving no governmental interest in
privacy, let alone a “compelling” (or even “substantial”) one.
This Court recognized in Jean that enforcement of the Statute must strike a
balance between the privacy interests at stake and the First Amendment interests
implicated. The Jean Court relied on the First Amendment to uphold a preliminary
injunction enjoining police officers from using the Statute to interfere with 7 Speech restrictions based on viewpoint are prohibited, and restrictions based on content must satisfy strict scrutiny and thus be narrowly tailored to serve a compelling government interest. See Pleasant Grove City, Utah v. Summum, 129 S.Ct. 1125, 1132 (2009). Content-neutral restrictions must serve a substantial government interest. See Ward v. Rock Against Racism, 491 U.S. 781, 789-792 (1989).
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Case: 10-1764 Document: 00116163648 Page: 30 Date Filed: 01/27/2011 Entry ID: 5522000
appellee’s dissemination of a third-party’s recording of an arrest and warrantless search. Jean, 492 F.3d at 25. The Court held that, “where the intercepted communications involve[d] a search by police officers of a private citizen’s home in front of that individual, his wife, other members of the family, and at least eight law enforcement officers,” the privacy interest was “virtually irrelevant.” Id. at 30. In Bartnicki v. Vopper, the privacy interests were more compelling (the case involved a private phone call), but the Supreme Court nevertheless reversed a conviction under the federal wiretap statute for disclosure of intercepted communications, because “privacy concerns give way when balanced against the interest in publishing matters of public importance.” 532 U.S. 514, 516 (2001).
It should be noted that these cases dealt with prohibitions against disclosure of recorded communications, and not with the primary act of recording.8 They nonetheless illustrate that, in applying a statute that restricts gathering and dissemination of information and evaluating privacy interests, courts must be sensitive to First Amendment considerations. The reasoning applies just as easily to the recordation itself: “whether [the] conduct [falls] within the statute is not determinative. . . . Rather, the determinative question is whether the First
8 The Bartnicki court cautioned that its holding “[did] not apply to punishing parties for obtaining the relevant information unlawfully.” 549 U.S. at 532 n.19. The federal wiretap statute considered in Bartnicki, however, contains an explicit limitation to situations in which there is an expectation of privacy. See 18 U.S.C. § 2510(2) (2006).
16

Case: 10-1764 Document: 00116163648 Page: 31 Date Filed: 01/27/2011 Entry ID: 5522000
Amendment . . . permits Massachusetts to criminalize [the] conduct.” Jean, 492 F.3d at 31. And, even assuming, arguendo, that the First Amendment protection of recording is more attenuated than its protection of dissemination, it cannot be said that any compelling or substantial governmental interest is served when the Statute is applied to criminalize the former where there is no reasonable expectation of privacy on the part of the recorded subject. The pertinent interest is the privacy of Massachusetts citizens, and the balancing of interests required by First Amendment jurisprudence becomes trivial when one side of the scale is empty.9 Amici therefore urge this Court to ensure that enforcement of the Statute is limited to situations in which those recorded have reasonable expectations of privacy.
II. Failure to limit the Statute to communications over which there is no reasonable expectation of privacy will chill socially valuable newsgathering and watchdog activities and suppress the spread of important information.
Modern technology has hastened the flow of information and broadened sources for newsgathering, allowing individuals to record and distribute content in ways that were once unimaginable. See Roy S. Gutterman, Chilled Bananas: Why Newsgathering Demands More First Amendment Protection, 50 Syracuse L. Rev.
9 Nothing in the Statute’s legislative history indicates that prosecution of individuals like Glik—for recording events that did not implicate citizens’ privacy interests—was contemplated by the legislature. See Commonwealth v. Hyde, 434 Mass. 594, 607–08, 750 N.E.2d 963, 972–73 (2001) (Marshall, C.J., dissenting) (reviewing legislative history).
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Case: 10-1764 Document: 00116163648 Page: 32 Date Filed: 01/27/2011 Entry ID: 5522000
197, 211 (2000). Through online platforms such as YouTube, citizens now participate in dynamic information-sharing communities “on issues ranging from the truly global to the hyper-local.” Brian Lehrer, A Million Little Murrows: New Media and New Politics, 17 Media L. & Pol’y 1, 3 (2008). Absent adequate consideration for First Amendment interests, the Wiretap Statute will chill the creation of recordings that serve evidentiary functions, spread news and other important information, and enhance the ability of individuals to scrutinize public issues, self-govern, and participate in civic affairs.
A. Criminalizing the recording of public events as to which there is no reasonable expectation of privacy will chill recordings that provide critical evidence on which both the public and police rely.
In the early morning hours of New Year’s Day, 2009, Bay Area Rapid Transit (“BART”) police officers arrived at an Oakland subway platform to respond to reports of a fight. Jack Leonard, Dramatic Video of BART Shooting Released by Court, L.A. Times Blog, (June 24, 2010, 5:13 PM), http://latimesblogs.latimes.com/lanow/2010/06/dramatic-video-of-bart-shootingreleased-by-court.html. One officer pinned the unarmed, 22-year-old, Oscar Grant to the ground, drew his gun, and fired, killing Grant. Id. Bystanders watched in horror and used their cell phones to record the scene through the windows of an idle train. Id. In Massachusetts, under the interpretation of the Wiretap Statute
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Case: 10-1764 Document: 00116163648 Page: 33 Date Filed: 01/27/2011 Entry ID: 5522000
advocated by Defendants-Appellants, the bystanders who recorded those events could have been charged with felonies.
Audiovisual recordings like those of Oscar Grant can be necessary to initiate investigations into police misconduct, prove misconduct, and ensure fair trials. See Hyde, 434 Mass. at 606–14, 750 N.E.2d at 970–974 (Marshall, C.J., dissenting) (“Whether there even would have been a Los Angeles Police Department investigation [into the Rodney King beating] without the video is doubtful, since the efforts of King’s brother . . . to file a complaint were frustrated, and the report of the involved officers was falsified.”) (quoting Report of the Independent Commission on the Los Angeles Police Department at ii (1992)). Indeed, there are countless examples of citizen-recorded video serving important evidentiary functions. See, e.g., Demian Bulwa, Mehserle Convicted of Involuntary Manslaughter, S.F. Chronicle, July 9, 2010, http://www.sfgate.com/cgibin/article.cgi?f=/c/a/2010/07/08/BAM21EBDOD.DTL (BART police officer convicted of manslaughter based on video depicting shooting); Amanda Covarrubias & Stuart Silverstein, A Third Incident, A New Video: A Cellphone Camera Captures UCLA Police Using Taser on a Student who Allegedly Refused to Leave the Library Tuesday Night, L.A. Times, Nov. 16, 2006, at B1 (cell phone camera video leads to review of incident); John Eligon, Former Officer Is Found Guilty of Lying About Confrontation With Bicyclist, N.Y. Times, April 30, 2010, at
19

Case: 10-1764 Document: 00116163648 Page: 34 Date Filed: 01/27/2011 Entry ID: 5522000

A19 (widely-disseminated video of NYPD officer attacking cyclist leads to ex-

officer’s false statement conviction); Sara Jean Green & Steve Miletich, Video of

SPD Officer Kicking Prone Man Sparks Internal Investigation, Seattle Times, May

7,

2010,

http://seattletimes.nwsource.com/html/localnews/2011807341_copinvestigation08

m.html (freelance photographer captures Seattle police using excessive force and

racial epithets against suspect, leading to investigation); Milton J. Valencia, Video

of Roxbury Arrest Reviewed, Bos. Globe, Oct. 28, 2010 (video of officers severely

beating unarmed 16-year-old leads to investigation); see also Alison L. Patton,

Note, The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 is Ineffective in

Deterring Police Brutality, 44 Hastings L.J. 753, 764–65 (1993) (claiming § 1983

is ineffective because of lack of eyewitnesses, coupled with jury bias toward

police); Skehill, supra. at 1008 (arguing that where video evidence is available,

jurors more likely to base verdicts on facts instead of on witness credibility).

Audiovisual recordings can also benefit the police. See Scott v. Harris, 550

U.S. 372, 381 (2007) (relying on video footage to hold police officer justified in

ramming fleeing vehicle and causing plaintiff to suffer permanent paralysis);

Robert Santiago, Taser Incident: Report Clears Campus Police at UF, Miami

Herald, Oct. 25, 2007, at B1 (reporting officers involved in taser incident cleared);

Jason Trahan & Tanya Eiserer, Cameras a Candid Witness: In-Car Video More

20

Case: 10-1764 Document: 00116163648 Page: 35 Date Filed: 01/27/2011 Entry ID: 5522000
Likely to Clear Police Officers Accused of Misconduct, Experts Say, Dallas Morning News, Mar. 26, 2009, at 1A; Stephen T. Watson, Police Going to the Replay, Buffalo News, Apr. 6, 2009, at A1 (explaining recordings of police “more often exonerate an officer accused of misconduct”); see also Skehill, supra, at 1008 (“Police-citizen recordings would also be invaluable to police training by providing real life scenarios to aid in educating and training police officers.”). See generally Matthew D. Thurlow, Lights, Camera, Action: Video Cameras as Tools of Justice, 23 J. Marshall J. Computer & Info. L. 771, 772 (2005) (describing increasing use of recording devices in police practices).
Police and citizen recordings can preserve judicial resources. See Skehill, supra, at 1008. Recordings allow plaintiffs’ attorneys to better assess whether their clients have viable civil rights claims, thus thwarting frivolous lawsuits, and may encourage prompt settlements by revealing the existence of bona fide claims. Id.
The evidentiary benefits of audiovisual recordings extend beyond the arena of police activities. See, e.g., Commonwealth v. Rivera, 445 Mass. 119, 120, 833 N.E.2d 1113, 1115 (2005) (surveillance camera recordings of murder in convenience store used by police to help identify defendant, introduced in evidence, and played at trial); DNAinfo, Manhattan Local News, Lawyer Hopes Video will Exonerate Chinatown Teen Accused of Murder, Dec. 7, 2010,
21

Case: 10-1764 Document: 00116163648 Page: 36 Date Filed: 01/27/2011 Entry ID: 5522000
http://www.dnainfo.com/20101207/lower-east-side-east-village/lawyer-hopesvideo-will-exonerate-chinatown-teen-on-trial-for-hester-street-murder (video to be presented to jury reveals teen accused of murder on opposite side of street when murder occurred); Teacher Accused of Hitting Student Exonerated, WSVN-TV, Mar. 13, 2008, http://www1.wsvn.com/news/articles/local/MI79758/ (Florida jury dropped charges against teacher after cell phone video footage exonerated him of accusations of attacking student).
Modern technology has revolutionized the ability of victims of injustice to vindicate their rights and demand reform. Unless this Court ensures the Statute criminalizes recordings of communications only over which the subjects have reasonable expectations of privacy, the Statute will significantly interfere with this revolution in Massachusetts.
B. The Statute should not be read to inhibit newsgathering and hamper public discourse.
Citizens’ recordings are fundamental to newsgathering. Consider, for instance, the videos that flooded the Internet during the protests following the Iranian elections in June 2009. See, e.g., Brian Stelter, Honoring Citizen Journalists, N.Y. Times, Feb. 22, 2010, at B5 (reporting on Polk Award given for video capturing death of Iranian protestor). These videos provided insights into injustices suffered by the people of Iran, and footage depicting the death of Neda
22

Case: 10-1764 Document: 00116163648 Page: 37 Date Filed: 01/27/2011 Entry ID: 5522000
Agha-Soltan, a young woman shot and killed in the aftermath of the elections, galvanized viewers worldwide.
Citizens’ videos provide more than information and insight; the sounds and sights of a scene allow viewers to feel devastation through their computer screesn and force them to accept the reality of a situation. See, e.g. CBSNewsOnline, Moments after Haiti Quake, YouTube (Jan. 18, 2010), http://www.youtube.com/watch?v=KzcHWuPjyiI (cell phone footage taken moments after earthquake by Brazilian soldier lying next to what was formerly Haiti’s main cathedral); maxisdx, Virginia Tech Shooting Rampage, YouTube (Apr. 16, 2007), http://www.youtube.com/watch?v=cSbZmd-l8n8 (cell phone footage capturing sound of gunfire that took lives of 32 students at Virginia Tech).
Audiovisual recordings play an increasingly significant role in public discourse. New media make it easier than ever for voters to educate themselves about civic and national affairs. See Lehrer, supra, at 1–7. Videos of events such as co-op board and neighborhood association meetings are often easily accessible online, and political conventions and debates are now available “[i]n full, all the time, and on multiple sites, with a thousand citizen editors choosing what excerpts to highlight on YouTube.” Id.
Citizens’ videos have also been instrumental in revealing characteristics and biases of our country’s leaders, allowing voters to make more informed decisions.
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Case: 10-1764 Document: 00116163648 Page: 38 Date Filed: 01/27/2011 Entry ID: 5522000

See, e.g., bobetheridgeassault, Complete, Un-edited Bob Etheridge Assault on

Student

Video,

YouTube

(June

17,

2010),

http://www.youtube.com/watch?v=UNfH76TS8d8 (Bob Etheridge (D-NC)

accosting student journalist outside a Nancy Pelosi fundraiser in June 2010 after

student asks whether he fully supports Obama agenda); NRAVideos, Barack

Obama – “Bitter Gun Owners”, YouTube (May 21, 2008),

http://www.youtube.com/watch?v=VZWaxjiQyFk (Barack Obama remarking at

private fundraiser during primary campaign in 2008 that people “cling to guns or

religion or antipathy towards people who aren’t like them”); zkman, George Allen

Introduces

Macaca,

YouTube

(Aug.

15,

2006),

http://www.youtube.com/watch?v=r90z0PMnKwI (Senator George Allen making

“macaca” comments in 2006); powerclam, Joe Biden’s Racist Slip, YouTube (July

6, 2006), http://www.youtube.com/watch?v=sM19YOqs7hU (Senator Joseph

Biden stating in 2006, “You cannot go to a 7-11 or a Dunkin Donuts unless you

have a slight Indian accent”).

“[I]n the country that promotes itself as the global model of democracy in

action, we should be able to strive for the world’s best system of media that serves,

rather than subverts, democracy.” Lehrer, supra, at 12. But, the Statute—by

criminalizing the mere failure to overtly display a recording device at a public

event—will prevent media from serving democracy in Massachusetts unless its

24

Case: 10-1764 Document: 00116163648 Page: 39 Date Filed: 01/27/2011 Entry ID: 5522000
application is limited as set forth herein. See Hyde, 434 Mass. at 613–14, 750
N.E.2d at 977 (Marshall, C.J., dissenting).
C. Absent limitation, the Wiretap Statute will lend itself to ambiguous application and misconstrual and will chill more recordings than intended.
Although the Statute states that only secret recordings are prohibited, and the
Hyde court agreed that a recording made “in plain sight” would not violate the
Statute,10 the distinction between a “secret” and a “plain sight” recording is not
always readily discernible. See Skehill, supra, at 984; see also Gouin v. Gouin,
249 F. Supp. 2d 62, 79 (D. Mass. 2003) (refusing to consider whether officers
should have noticed recording); Mike Miliard, Sound Off, Bos. Phoenix (Dec. 13,
2006), http://thephoenix.com/boston/news/29700-sound-off (reporting cases
involving Wiretap Statute convictions with recorder held in plain view); Daniel
Rowinski, Police Fight Cellphone Recordings, Bos. Globe,
Jan. 12, 2010, at A1 (same); Harvey A. Silvergate & James Tierney, Op-Ed.,
Preventing Oversight for Police Misconduct, Mass. Law. Wkly., Jan. 28, 2008 10 Hyde, 434 Mass. at 605, 750 N.E.2d at 971 (“The problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight. Had he done so, his recording would not have been secret, and so would not have violated G.L. c. 272, § 99.”). In Hyde, although a divided Massachusetts Supreme Judicial Court rejected a reading of the Statute that included a reasonable expectation of privacy element, it did so without addressing the First Amendment considerations addressed herein. See Hyde, 434 Mass. 594, 750 N.E.2d 963 (upholding defendant’s conviction under the Statute for secretly recording a police traffic stop)
25

Case: 10-1764 Document: 00116163648 Page: 40 Date Filed: 01/27/2011 Entry ID: 5522000
(predicting future difficulty in determining whether recordings are furtive). “The holding in Hyde presumes that when an individual holds a recording device in plain view the officer becomes automatically aware of the recording,” Skehill, supra, at 984, but as is especially likely to be true when the recording device is a phone, the officer may not realize that he is being recorded until after the recording has begun. In such cases, practical application of the holding in Hyde becomes problematic. Id. Moreover, because the categorization of a recording as “secret” or “in plain sight” may hinge on an officer’s subjective awareness, the Statute enables and may incentivize police officers to avoid punishment for misconduct by denying knowledge of recordings and arresting citizen journalists. Id. at 985.
In fact, Massachusetts citizens have been arrested and convicted for making recordings at public events, despite their assertions that the recordings were made in the open. See Rowinski, supra, at A1. Jeffrey Manzelli, who was convicted for recording the MBTA police at an antiwar rally on Boston Common in 2002, and Peter Lowney, who was convicted for using a camera that police alleged was hidden in his coat during a protest on Commonwealth Avenue in 2007, were convicted under the Statute after their recordings were determined to be “secret.” Id.
If the Statute allows citizens to be arrested and convicted for making public recordings, it runs the risk of chilling the production of valuable recordings. The
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Case: 10-1764 Document: 00116163648 Page: 41 Date Filed: 01/27/2011 Entry ID: 5522000
Statute could be applied consistently while avoiding this chilling effect if this
Court ensures it applies only to recordings of communications where a reasonable
privacy expectation exists.
The “reasonable expectation of privacy” standard is judicially administrable
and familiar. Justice Harlan first articulated the two-prong test to determine when
a person has a reasonable expectation of privacy in Katz, 389 U.S. 347 (Harlan, J.,
concurring), explaining:
My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.
Id. at 361. The Katz test is well-established in federal and state courts. See, e.g.,
United States v. Bucci, 582 F.3d 108, 116–17 (1st Cir. 2009) (finding no subjective
or objective expectation of privacy for Fourth Amendment purposes over front of
individual’s home plainly visible from street); United States v. Dunbar, 553 F.3d
48, 57 (1st Cir. 2009) (“[T]he back of a police car is not a place where individuals
can reasonably expect to communicate in private.”); United States v. Hawkins, 139
F.3d 29, 32 (1st Cir. 1998) (noting it is “beyond cavil” that a tenant lacks a
27

Case: 10-1764 Document: 00116163648 Page: 42 Date Filed: 01/27/2011 Entry ID: 5522000
reasonable expecation of privacy in the common area of an apartment building); Wishart v. McDonald, 500 F.2d 1110, 1113–14 (1st Cir. 1974) (explaining that the reasonable expectation of privacy held by an individual in the privacy in his home is surrendered once he is in the public eye); Nelson v. Salem State Coll., 446 Mass. 525, 533–35, 845 N.E.2d 338, 346–47 (2006) (finding subjective expectation, but not objective reasonable expectation of privacy in work area that was open to the public); Rivera, 445 Mass. at 128–29, 833 N.E.2d at 1121 (applying federal wiretap statute and stating, “[A]ny expectation the defendant claimed of privacy in his statements objectively was unreasonable in the circumstances: he shouted threats and obscenities at a clerk in a convenience store open to the public.”). See generally United States v. Jacobsen, 466 U.S. 109 (1984) (incorporating two-prong reasonable expectation of privacy test into legal analysis).
Justice Harlan’s well-established test has come to be applied in a variety of contexts. Most states have incorporated the test into their privacy statutes. See sources cited supra n.2 and accompanying text. Moreover, the First Circuit and Massachusetts courts already apply the Katz test to evaluate claims under the federal wiretap statute. See United States v. Larios, 593 F.3d 82, 92 (1st Cir. 2010); United States v. Sparks, 2010 U.S. Dist. LEXIS 120257, *8 (D. Mass. Nov. 10, 2010). Thus, clear precedent exists to guide Massachusetts courts in applying the Statute in the manner suggested by Amici. Interpreting the Statute to include a
28

Case: 10-1764 Document: 00116163648 Page: 43 Date Filed: 01/27/2011 Entry ID: 5522000

reasonable expectation of privacy and thus permit recordings of public occurrences

that take place in public places would be straightforward, fair, and consistent with

the goals of the Statute and would save the Statute from overbreadth.

CONCLUSION

For the foregoing reasons, Amici respectfully request that the Court affirm

the lower court’s ruling denying Defendants-Appellants’ motion to dismiss and

find that Glik’s clearly established First Amendment rights were violated when he

was arrested under the Wiretap Statute and that the Statute cannot be applied in a

manner consistent with the First Amendment when there exists no reasonable

expectation of privacy as to an intercepted communication.

Dated: Cambridge, MA January 23, 2011

Respectfully submitted,

/s/Christopher T. Bavitz Christopher T. Bavitz (1st Cir. #1144019) Asst Director, Cyberlaw Clinic, Berkman Center for Internet & Society Clinical Instructor, Harvard Law School 23 Everett St, 2nd Floor, Cambridge, MA 02138 Tel: 617-495-7547 Fax: 617-495-7641 Email: cbavitz@cyber.law.harvard.edu Counsel for Amici Curiae11

11 Amici thank Harvard Law School Cyberlaw Clinic students Davis Doherty, David Kleban, Elizabeth Winokur, and Brandon Winston for their valuable contributions to this brief.
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Case: 10-1764 Document: 00116163648 Page: 44 Date Filed: 01/27/2011 Entry ID: 5522000
CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C) I, Christopher T. Bavitz, as counsel for Amici Curiae, certify pursuant to Fed. R. App. P. 32(a)(7)(C) that the foregoing Brief of Citizen Media Law Project, Dow Jones & Company, Inc., GateHouse Media, Inc., Globe Newspaper Company, Inc., The Massachusetts Newspaper Publishers Association, Metro Corp., NBC Universal, Inc., New England Newspaper and Press Association, Inc., The New York Times Company, Newspapers of New England, Inc., The Online News Association, and The Reporters Committee for Freedom of the Press as Amici Curiae in Support of Plaintiff-Appellee: (1) complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B), because, in reliance on the word count function of Microsoft Word, the word processing software used to create the brief, excluding those portions of the brief exempted from the count by Fed. R. App. P. 32(a)(7)(B)(iii), the brief contains 6,993 words; and (2) complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6), because the brief has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman 14point type. Dated: Cambridge, MA January 23, 2011
/s/Christopher T. Bavitz Christopher T. Bavitz (1st Cir. #1144019)

Case: 10-1764 Document: 00116163648 Page: 45 Date Filed: 01/27/2011 Entry ID: 5522000
CERTIFICATE OF SERVICE I hereby certify that on January 23, 2011, I electronically filed the foregoing document with the United States Court of Appeals for the First Circuit by using the CM/ECF system. I certify that counsel for Plaintiff-Appellee (David Milton, Howard Friedman, and Sarah Wunsch) and counsel for Defendant-Appellants (Ian D. Prior and Lisa A. Skehill) are registered as ECF Filers and that they will be served by the CM/ECF system. Dated: Cambridge, MA
January 23, 2011 /s/Christopher T. Bavitz Christopher T. Bavitz (1st Cir. #1144019)

 
 City of Boston pays $170,000 to settle landmark case involving man arrested for recording police with cell phone
Simon Glik broke no law making video of police officers' use of force against another man on Boston Common.
FOR IMMEDIATE RELEASE Tuesday, March 27, 2012
CONTACT: Christopher Ott, Communications Director, 617-482-3170 x322, cott@aclum.org
BOSTON -- Simon Glik, a Boston attorney wrongly arrested and prosecuted for using his cell phone to record police officers forcefully arresting a man on the Boston Common, has reached a settlement with the City of Boston on his civil rights claims. The settlement requires the City to pay Glik $170,000 for his damages and legal fees.
Mr. Glik was forced to defend himself against criminal charges of illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace. After a judge threw out those charges, Glik filed a civil rights suit against the city and the arresting officers in federal court in Boston, aided by the American Civil Liberties Union of Massachusetts and Boston attorneys Howard Friedman and David Milton. This settlement resolves that case.
The settlement follows a landmark ruling last August by the U.S. Court of Appeals for the First Circuit, declaring that the First Amendment protects the right to record police carrying out their duties in a public place, Glik v. Cunniffe 655 F.3d 78 (2011). The First Circuit's ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, but its persuasive reasoning has been cited by courts and lawyers nationwide facing the recurrent issue of police arresting people for filming them.
The Massachusetts wiretap statute prohibits only secret recording of audio. The First Circuit in Glik's case affirmed that an arrest under the statute for openly recording the police would violate not only the First Amendment right to gather information but also the Fourth Amendment's guarantee against false arrests.
"The law had been clear for years that openly recording a video is not a crime. It's sad that it takes so much for police to learn the laws they were supposed to know in the first place. I hope Boston police officers will never again arrest someone for openly recording their public actions," said Glik.
"The court's opinion made clear that people cannot be arrested simply for documenting the actions of police officers in public. With this issue squarely resolved against it, it made sense for the City to settle the case rather than continuing to waste taxpayer money defending it," said David Milton, one of the attorneys for Glik.
As part of the settlement, Glik agreed to withdraw his appeal to the Community Ombudsman Oversight Panel. He had complained about the Internal Affairs Division's investigation of his complaint and the way

they treated him. IAD officers made fun of Glik for filing the complaint, telling him his only remedy was filing a civil lawsuit. After the City spent years in court defending the officers' arrest of Glik as constitutional and reasonable, IAD reversed course after the First Circuit ruling and disciplined two of the officers for using "unreasonable judgment" in arresting Glik.
After Glik filed suit, the City of Boston appeared to change its policy of letting police officers arrest and charge people with illegal wiretapping for recording them with cameras or cellphones in plain sight. The City developed a training video based on facts similar to the Glik case, instructing police officers not to arrest people who openly record what they are doing in public.
"The First Amendment includes the freedom to observe and document the conduct of government officials, which is crucial to a democracy and a free society. We hope that police departments across the country will draw the right conclusions from this case," said Sarah Wunsch, ACLU of Massachusetts staff attorney.
For more information about the case, see: http://aclum.org/glik
-end-

 
 655 F.3d 78 (2011)
Simon GLIK, Plaintiff, Appellee, v.
John CUNNIFFE, in his individual capacity; Peter J. Savalis, in his individual capacity; Jerome Hall-Brewster, in his individual capacity; City of Boston, Defendants, Appellants.
No. 10-1764.
United States Court of Appeals, First Circuit.
Heard June 8, 2011. Decided August 26, 2011.
79 *79 Ian D. Prior, Assistant Corporation Counsel, City of Boston Law Department, with whom William F. Sinnott, Corporation Counsel, and Lisa Skehill Maki, Assistant Corporation Counsel, were on brief, for appellants.
David Milton, with whom Howard Friedman, Law Offices of Howard Friedman, P.C., Sarah Wunsch, and ACLU of Massachusetts were on brief, for appellee.
Anjana Samant and Center for Constitutional Rights on brief for Berkeley Copwatch, Communities United Against Police Brutality, Justice Committee, Milwaukee Police Accountability Coalition, Nodutdol for Korean Community Development, and Portland Copwatch, amici curiae.
Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.
LIPEZ, Circuit Judge.
Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts's wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.
In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik's constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearlyestablished Fourth Amendment rights were violated by his arrest without probable cause. We therefore affirm.
I.
We recite the pertinent facts based upon the allegations of the complaint, Asociación de Subscripción Conjunta del Seguro de Responsabilidad Obligatorio v. Flores Galarza, 484 F.3d 1, 6 (1st Cir.2007), "accepting all wellpleaded facts in the complaint as true," Sanchez v. Pereira-Castillo, 590 F.3d 31, 36, 52 n. 15 (1st Cir.2009).
As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers 0907 the individual defendants here 0907 arresting a young man. Glik heard another bystander say 80 something to the effect of, "You are hurting him, stop." Concerned that the officers were employing *80 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[1] 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.
Glik was eventually 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, id. ch. 268, § 17. Acknowledging lack of probable cause for the last of these charges, the Commonwealth voluntarily dismissed the count of aiding in the escape of a prisoner. In February 2008, in response to Glik's motion to dismiss, the Boston Municipal Court disposed of the remaining two charges for disturbance of the peace and violation of the wiretap statute. With regard to the former, the court noted that the fact that the "officers were unhappy they were being recorded during an arrest... does not make a lawful exercise of a First Amendment right a crime." Likewise, the court found no probable cause supporting the wiretap charge, because the law requires a secret recording and the officers admitted that Glik had used his cell phone openly and in plain view to obtain the video and audio recording.
Glik filed an internal affairs complaint with the Boston Police Department following his arrest, but to no avail. The Department did not investigate his complaint or initiate disciplinary action against the arresting officers. In February 2010, Glik filed a civil rights action against the officers and the City of Boston in the United States District Court for the District of Massachusetts. The complaint included claims under 42 U.S.C. § 1983 for violations of Glik's First and Fourth Amendment rights, as well as state-law claims under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I, and for malicious prosecution.
The defendants moved to dismiss Glik's complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that the allegations of the complaint failed to adequately support Glik's claims and that the officers were entitled to qualified immunity "because it is not well-settled that he had a constitutional right to record the officers." At a hearing on the motion, the district court focused on the qualified immunity defense, noting that it presented the closest issue. After hearing argument from the parties, the court orally denied the defendants' motion, concluding that "in the First Circuit ... this First Amendment right publicly to record the activities of police officers on public business is established."
This timely appeal followed. Denial of a motion to dismiss on qualified immunity grounds, unlike denial of a typical motion to dismiss, is immediately appealable on interlocutory review. Garnier v. Rodríguez, 506 F.3d 22, 25 (1st 81 Cir.2007); cf. Hunter v. Bryant, 502 U.S. 224, 227, *81 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam) (stressing "the importance of resolving immunity questions at the earliest possible stage in litigation"). We limit our review to the issue of qualified immunity, Garnier, 506 F.3d at 25, which is a legal determination that we review de novo, Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir.2010).
II.
Long-standing principles of constitutional litigation entitle public officials to qualified immunity from personal liability arising out of actions taken in the exercise of discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Barton v. Clancy, 632 F.3d 9, 21 (1st Cir.2011). The qualified immunity doctrine "balances two important interests 0907 the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) . We apply a two-prong analysis in determining questions of qualified immunity. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009). These prongs, which may be resolved in any order, Pearson, 555 U.S. at 236, 129 S.Ct. 808, require that we decide "(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," Maldonado, 568 F.3d at 269.
The latter analysis of whether a right was "clearly established" further divides into two parts: "(1) `the clarity of the law at the time of the alleged civil rights violation,' and (2) whether, given the facts of the particular case, `a reasonable defendant would have understood that his conduct violated the plaintiff['s] constitutional rights.'" Barton, 632 F.3d at 22 (alteration in original) (quoting Maldonado, 568 F.3d at 269). An affirmative finding on these inquiries does "not require a case directly on point, but existing precedent must have placed the ... constitutional question beyond debate." Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083, 179 L.Ed.2d

1149 (2011). At bottom, "the salient question is whether the state of the law at the time of the alleged violation gave the defendant fair warning that his particular conduct was unconstitutional." Maldonado, 568 F.3d at 269.
On appeal, appellants[2] argue that they are entitled to qualified immunity on each of Glik's constitutional claims 82 and, accordingly, that the district erred in denying their motion to dismiss.[3] Their arguments *82 track the two
parts of the "clearly established right" analysis. With regard to the First Amendment claim, appellants dispute the clarity of the law establishing a First Amendment right to record police officers carrying out their public duties. On the Fourth Amendment claim, appellants contend that, in light of Massachusetts case law interpreting the state's wiretap statute, a reasonable officer would have believed there was probable cause to arrest Glik, and thus would not have understood that the arrest would violate the Fourth Amendment. We examine each argument in turn.
A. Immunity from Glik's First Amendment Claim
1. Were Glik's First Amendment Rights Violated?
The First Amendment issue here is, as the parties frame it, fairly narrow: is 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.
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. As the Supreme Court has observed, "the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." First Nat'l Bank v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); see also Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) ("It is ... well established that the Constitution protects the right to receive information and ideas."). An important corollary to this interest in protecting the stock of public information is that "[t]here is an undoubted right to gather news `from any source by means within the law.'" Houchins v. KQED, Inc., 438 U.S. 1, 11, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (quoting Branzburg v. Hayes, 408 U.S. 665, 681-82, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972)).
The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. 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." Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). Moreover, as the Court has noted, "[f]reedom of expression has particular significance with respect to government because `[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" First Nat'l Bank, 435 U.S. at 777 n. 11, 98 S.Ct. 1407 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1035-36, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (observing that "[t]he public has an interest in [the] responsible exercise" of the discretion granted police and prosecutors). Ensuring the public's right to gather information about their officials not only aids in the uncovering of abuses, see id. at 1034-35, 111 S.Ct. 2720 (recognizing a core First Amendment interest in 83 "the dissemination of information relating to alleged governmental misconduct"), but also may have a *83 salutary effect on the functioning of government more generally, see Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (noting that "many governmental processes operate best under public scrutiny").
In line with these principles, we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties. In Iacobucci v. Boulter, 193 F.3d 14 (1st Cir.1999), a local journalist brought a § 1983 claim arising from his arrest in the course of filming officials in the hallway outside a public meeting of a historic district commission. The commissioners had objected to the plaintiff's filming. Id. at 18. When the plaintiff

refused to desist, a police officer on the scene arrested him for disorderly conduct. Id. The charges were later dismissed. Id. Although the plaintiff's subsequent § 1983 suit against the arresting police officer was grounded largely in the Fourth Amendment and did not include a First Amendment claim, we explicitly noted, in rejecting the officer's appeal from a denial of qualified immunity, that because the plaintiff's journalistic activities "were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights, [the officer] lacked the authority to stop them." Id. at 25 (emphasis added).
Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts. See, e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) ("The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest."); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing a "First Amendment right to film matters of public interest"); Demarest v. Athol/ Orange Cmty. Television, Inc., 188 F.Supp.2d 82, 94-95 (D.Mass.2002) (finding it "highly probable" that filming of a public official on street outside his home by contributors to public access cable show was protected by the First Amendment, and noting that, "[a]t base, plaintiffs had a constitutionally protected right to record matters of public interest"); Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634, 638 (D.Minn.1972) (holding that police interference with television newsman's filming of crime scene and seizure of video camera constituted unlawful prior restraint under First Amendment); cf. Schnell v. City of Chi., 407 F.2d 1084, 1085 (7th Cir.1969) (reversing dismissal for failure to state a claim of suit claiming police interference with news reporters and photographers' "constitutional right to gather and report news, and to photograph news events" under the First Amendment (internal quotation mark omitted)), overruled on other grounds by City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Connell v. Town of Hudson, 733 F.Supp. 465, 471-72 (D.N.H.1990) (denying qualified immunity from First Amendment claim to police chief who prevented freelance photographer from taking pictures of car accident).
It is of no significance that the present case, unlike Iacobucci and many of those cited above, involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press. Houchins, 438 U.S. at 16, 98 S.Ct. 2588 (Stewart, J., concurring) (noting that the Constitution "assure[s] the public and the press equal access once 84 government has opened its doors"); Branzburg, 408 *84 U.S. at 684, 92 S.Ct. 2646 ("[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally."). Indeed, there are several cases involving private individuals among the decisions from other courts recognizing the First Amendment right to film. See, e.g., Smith, 212 F.3d 1332; Robinson v. Fetterman, 378 F.Supp.2d 534 (E.D.Pa.2005) (holding that arrest of individual filming police activities from private property violated First Amendment); Cirelli v. Town of Johnston Sch. Dist., 897 F.Supp. 663 (D.R.I.1995) (holding that teacher had a right under the First Amendment to videotape potentially hazardous working conditions at school, which were a matter of public concern). Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions. See Smith, 212 F.3d at 1333. We have no occasion to explore those limitations here, however. On the facts alleged in the complaint, Glik's exercise of his First Amendment rights fell well within the bounds of the Constitution's protections. Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are "sharply circumscribed." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Moreover, as in Iacobucci, the complaint indicates that Glik "filmed [the officers] from a comfortable remove" and "neither spoke to nor molested them in any way" (except in directly responding to the officers when they addressed him). 193 F.3d at 25. Such peaceful recording of an arrest in a public space that does not interfere with the police officers' performance of their duties is not reasonably subject to limitation.

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, 107 S.Ct. 2502, 96 L.Ed.2d 398 (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, 107 S.Ct. 2502. The same restraint demanded of law enforcement officers in the face of "provocative and challenging" speech, id. at 461, 107 S.Ct. 2502 (quoting Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.
2. Was the Right to Film Clearly Established?
Though the "clearly established" inquiry does "not require a case directly on point," al-Kidd, 131 S.Ct. at 2083, we 85 have such a case in Iacobucci. What is particularly notable about Iacobucci is the *85 brevity of the First
Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space. See Smith, 212 F.3d at 1333; Fordyce, 55 F.3d at 439. This terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area. Cf. Lee v. Gregory, 363 F.3d 931, 936 (9th Cir.2004) (noting that some constitutional violations are "self-evident" and do not require particularized case law to substantiate them). We thus have no trouble concluding that "the state of the law at the time of the alleged violation gave the defendant [s] fair warning that [their] particular conduct was unconstitutional." Maldonado, 568 F.3d at 269.
We find unavailing the two cases principally relied upon by the appellants in arguing that the First Amendment right to film was not clearly established at the time of the arrest, both of which were decided after Glik's arrest. The first is an unpublished per curiam opinion from the Fourth Circuit that summarily concludes, with no discussion of the facts or relevant law, that the "right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct." Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir.2009). Such unpublished opinions "have no precedential force," Merrimac Paper Co. v. Harrison (In re Merrimac Paper Co.), 420 F.3d 53, 60 (1st Cir.2005); see also United States v. King, 628 F.3d 693, 700 n. 3 (4th Cir.2011) (same), and the absence of substantive discussion deprives Szymecki of any marginal persuasive value it might otherwise have had.
The second case appellants cite is a Third Circuit opinion finding the right to film not clearly established in the context of a traffic stop, characterized as an "inherently dangerous situation[]." Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir.2010). Kelly is clearly distinguishable on its facts; a traffic stop is worlds apart from an arrest on the Boston Common in the circumstances alleged. Nonetheless, even if these cases were to establish a circuit split with respect to the clarity of the First Amendment's protections in the situation before us, that split would not undermine our conclusion that the right violated by appellants was clearly established in this circuit at the time of Glik's arrest. See Newman v. Massachusetts, 884 F.2d 19, 25 (1st Cir.1989) (finding constitutional right clearly established in the First Circuit despite "recogni[tion] that the courts are not yet unanimous on whether this ... right exists").
In summary, though not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment. Accordingly, we hold that the district court did not err in denying qualified immunity to the appellants on Glik's First Amendment claim.
B. Immunity from Glik's Fourth Amendment Claim

1. Were Glik's Fourth Amendment Rights Violated?
The existence of a Fourth Amendment violation on the facts alleged here turns on a question of Massachusetts law. The Fourth Amendment requires that an arrest be grounded in probable cause, Martínez-Rodríguez v. Guevara, 597 F.3d 414, 420 (1st Cir.2010), i.e., that, "at the time of the arrest, the `facts and circumstances within the officer's knowledge ... [were] sufficient to warrant a prudent person, or one of reasonable caution, in believing, 86 in the circumstances shown, that the suspect [had] committed, [was] committing, or *86 [was] about to commit an offense,'" Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir.2009) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)). The thrust of Glik's Fourth Amendment claim is that the appellants lacked any such probable cause that Glik had violated state law at the time of arrest. The appellants argue, to the contrary, that the allegations of the complaint establish probable cause that Glik violated Massachusetts's wiretap statute.[4] Upon examination of the statute and relevant case law from Massachusetts's Supreme Judicial Court, we disagree.
Massachusetts's wiretap statute makes it a crime to "willfully commit[] an interception... of any wire or oral communication." Mass. Gen. Laws ch. 272, § 99(C)(1). As the Supreme Judicial Court has noted, this statute sweeps more broadly than comparable laws in other jurisdictions, in that its prohibition is not restricted to the recording of communications that are made with a reasonable expectation of privacy. See Commonwealth v. Hyde, 434 Mass. 594, 750 N.E.2d 963, 967-68 & n. 5 (2001).[5] The critical limiting term in the statute is "interception," defined to mean "to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication." Id. § 99(B)(4).
The relevant question, then, is whether, on the facts alleged in the complaint, Glik "secretly" videotaped the appellant officers.[6] The Supreme Judicial Court has held that a recording is "secret" unless the subject has "actual knowledge" of the fact of recording. Commonwealth v. Jackson, 370 Mass. 502, 349 N.E.2d 337, 340 (1976). It has also made clear that "actual knowledge" can be proven by "objective manifestations of knowledge" to "avoid the problems involved in speculating as to the [subject's] subjective state of mind." Id. at 340-41. 87 Moreover, the court has noted that "actual knowledge" does not require *87 that there be any explicit acknowledgment of or reference to the fact of the recording. Id. at 340 ("[T]he person recording the conversation [need not] confirm the [subject's] apparent awareness by acknowledging the fact of the intercepting device."). Thus, in Hyde, where the defendant was convicted of a wiretap violation for secretly recording a traffic stop, the Supreme Judicial Court explained that "the recording would not have been secret" within the meaning of the statute if the defendant had simply "held the tape recorder in plain sight." 750 N.E.2d at 971. The unmistakable logic of Hyde, building on Jackson, is that the secrecy inquiry turns on notice, i.e., whether, based on objective indicators, such as the presence of a recording device in plain view, one can infer that the subject was aware that she might be recorded.
Commonwealth v. Rivera, 445 Mass. 119, 833 N.E.2d 1113 (2005), forcefully illustrates this point. There, a criminal defendant argued for suppression under the wiretap statute of an audio recording by a convenience store security camera, on the theory that he lacked actual knowledge that the security cameras recorded audio as well as video. Although the case was resolved on other grounds, four of the seven justices of the Supreme Judicial Court concurred to note that the defendant's unawareness of the audio recording capabilities of the security cameras did not render the recordings "secret" under the wiretap statute where the cameras were in plain sight. Id. at 1125 (Cowin, J., concurring in part) ("That the defendant did not know the camera also included an audio component does not convert this otherwise open recording into the type of `secret' interception prohibited by the Massachusetts wiretap statute."); id. at 1130 (Cordy, J., concurring) ("Just because a robber with a gun may not realize that the surveillance camera pointed directly at him is recording both his image and his voice does not ... make the recording a `secret' one within the meaning and intent of the statute.").
The complaint alleges that Glik "openly record[ed] the police officers" with his cell phone, and further that "the police officers admitted Mr. Glik was publicly and openly recording them." On its face, this conduct falls plainly outside the type of clandestine recording targeted by the wiretap statute. See Jackson, 349 N.E.2d at 339 ("While

we recognize that [the wiretap statute] is designed to control the use of electronic surveillance devices by private individuals because of the serious threat they pose to `the privacy of all citizens,' (§ 99A), it is clear that the Legislature intended that the statutory restrictions be applicable only to the secret use of such devices." (emphasis added)). Moreover, not only does Hyde (along with the Rivera concurrences) indicate that the use of a recording device in "plain sight," as here, constitutes adequate objective evidence of actual knowledge of the recording, but here the police officers made clear through their conduct that they knew Glik was recording them. Specifically, one of the police officers approached Glik after the suspect had been handcuffed and told him, "I think you have taken enough pictures."
The officers protest that Glik's use of a cell phone was insufficient to put them on notice of the recording. They note that a cell phone, unlike the tape recorder used in Hyde, has numerous discrete functions, such as text messaging, internet browsing, video gaming, and photography, and thus the fact of an individual holding out a cell phone in front of his body is of indeterminate significance. The argument suffers from factual as well as legal 88 flaws. The allegations of the complaint indicate that the officers were cognizant of Glik's surveillance, *88 knew that Glik was using his phone to record them in some fashion, and were aware, based on their asking Glik whether he was recording audio, that cell phones may have sound recording capabilities. The fact that a cell phone may have other functions is thus irrelevant to the question of whether Glik's recording was "secret."
Appellants' argument reduces to the contention that, though they were aware of Glik's recording, they initially thought Glik was taking pictures of them rather than recording video and audio. This is almost precisely the argument rejected by the four concurring justices in Rivera, and it runs directly contrary to the logic of Hyde's "plain view" discussion. Taking the appellants' argument to its logical end, the Hyde defendant's recording would have escaped a wiretap offense only if he had held his tape recorder in plain view and there was affirmative evidence that the officers were aware that the device was switched on and recording audio. To the contrary, Hyde makes the point that the use in plain view of a device commonly known to record audio is, on its own, sufficient evidence from which to infer the subjects' actual knowledge of the recording. See 750 N.E.2d at 971 (noting that recording would not have been secret under the statute if "the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight" (emphasis added)). Simply put, a straightforward reading of the statute and case law cannot support the suggestion that a recording made with a device known to record audio and held in plain view is "secret."
We thus conclude, on the facts of the complaint, that Glik's recording was not "secret" within the meaning of Massachusetts's wiretap statute, and therefore the officers lacked probable cause to arrest him. Accordingly, the complaint makes out a violation of Glik's Fourth Amendment rights.
2. Was the Absence of Probable Cause Clearly Established Under the Circumstances?
Appellants contend that, regardless of whether Glik's conduct in fact violated the wiretap law, the state of the law was such that a reasonable officer would not have understood that arresting Glik for a wiretap offense under the circumstances alleged in the complaint would violate Glik's Fourth Amendment rights. They point out, rightly, that a lesser showing is required for an officer to be entitled to qualified immunity from a Fourth Amendment claim based on a warrantless arrest than to establish probable cause. See Cox v. Hainey, 391 F.3d 25, 31 (1st Cir.2004). Officers are entitled to qualified immunity "so long as the presence of probable cause is at least arguable." Ricci v. Urso, 974 F.2d 5, 7 (1st Cir.1992) (quoting Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir.1991)).
The presence of probable cause was not even arguable here. The allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance. For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was "secret" merely because the officer did not have actual knowledge of whether audio was being recorded. We thus agree with the district court that, at this stage in the litigation, the officers are not entitled to qualified immunity from Glik's Fourth Amendment claim.

89 *89 III.
For the reasons set forth above, we affirm the district court's order denying appellants' claim of qualified immunity.
So ordered.
[1] It is not clear from the complaint whether this was the same officer who initially addressed Glik.
[2] Although the City of Boston is formally included in the caption to this appeal, the parties agree that the City has no right to immediate interlocutory appeal from a denial of qualified immunity, as it did not 0907 and could not 0907 assert such a defense. See Walden v. City of Providence, 596 F.3d 38, 55 n. 23 (1st Cir.2010). In referring to the appellants, then, we refer only to the individual defendants appealing the denial of qualified immunity.
[3] Appellants also argue that Glik failed to state a claim for malicious prosecution under Massachusetts law because, they argue, there was probable cause to charge Glik with a violation of the wiretap statute. As Glik rightly points out, however, appellants have no immediate right of appeal from denial of a motion to dismiss for failure to state a claim, and thus we do not reach their argument. See Domegan v. Fair, 859 F.2d 1059, 1061-62 (1st Cir.1988) ("Notwithstanding that we have jurisdiction to review the denial of qualified immunity midstream, ` [a]ny additional claim presented to and rejected by the district court must independently satisfy the collateralorder exception to the final-judgment rule in order for us to address it on an interlocutory appeal.'" (alteration in original) (quoting Bonitz v. Fair, 804 F.2d 164, 173 (1st Cir. 1986))).
[4] Appellants do not attempt any argument that the facts make out probable cause for the other two offenses with which Glik was charged, disturbing the peace and aiding in the escape of a prisoner.
[5] In Hyde, the defendant argued that the wiretap statute did not apply to his taping of police officers, as those "police officers did not possess any privacy interest in the words they spoke" in their interactions with the defendant. 750 N.E.2d at 965. The court rejected the argument, noting that the statute requires no reasonable expectation of privacy, and held that the prohibition of secret recordings squarely applies to "recordings of police officers or other public officials interacting with members of the public." Id. at 967. Thus, in the present case, the fact that the subjects of Glik's recording were police officers is immaterial to the question of the wiretap statute's applicability.
[6] Glik also points to the statute's language requiring that an offender "willfully commit[] an interception," Mass. Gen. Laws ch. 272, § 99(C)(1) (emphasis added), and argues that there was no probable cause for his arrest because his recording was not "willful." In this vein, he notes that he was holding his camera in plain view and readily acknowledged that he was recording sound when asked. However, the relevant precedent suggests that the statute's reference to willfulness requires only a specific intent to record a particular communication, rather than requiring an intent to hide the recording from the subject or some other "willful" state of mind. See Commonwealth v. Ennis, 439 Mass. 64, 785 N.E.2d 677, 681 (2003) (noting that the Department of Correction "did willfully record" a telephone call, under circumstances where the Department expressly advised the participants that their conversation would be recorded). The allegations of the complaint leave no doubt that Glik intended to record appellants' conduct of the arrest, and thus we see no merit in Glik's argument on this point.
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