On Point: Filming traffic stops: do's and don'ts

 Scott Forsyth, The Daily Record Newswire

Meet Carla Gericke. She lives in Lebanon, New Hampshire, and is a social activist.

Some persons in New Hampshire do not look kindly on Gericke. Count the leaders of the town of Weare, population 8,785, among them.

Gericke sued the town and several of its police officers for violating her Free Speech rights. So far she has prevailed, most recently on appeal, Gericke v. Begin, No. 12-2326 (1st Cir. May 23). The case resembles Emily Good’s claim against the City of Rochester in many ways.

Gericke was following a friend in a car at night. An officer from Weare pulled over the friend. Gericke drove into the parking lot of an adjacent school. She pulled out her phone and told the officer she was going to record the encounter from the school grounds.

The officer instructed Gericke to return to her car, which she did. From the car she continued to point the phone at the officer. Unbeknownst to the officer, the video in the phone did not work.

The friend was carrying a gun, which he disclosed to the officer.

Another officer arrived and asked Gericke for her license. When she refused, he charged her with disobeying a police order. At the station house the police also charged her with unlawfully intercepting an oral communication, to wit the officer’s conversation with her friend.

Both the town attorney and the county attorney declined to prosecute. Gericke turned around and sued the town and the arresting officers. She alleged the officers filed the criminal charges in retaliation for her filming the traffic stop, an activity protected by the First Amendment.

The officers moved for summary judgment. They stated they were immune from a civil rights suit, because the right to film a stop was not clearly established as of the arrest. The motion was denied.

The officers were invoking the concept of qualified immunity. It provides government officials “with breathing room to make reasonable but mistaken judgments” by shielding them from civil liability when the law surrounding their actions is uncertain.

When an official raises the defense, a court must determine whether (1) the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and, if so, (2) was the right clearly established at the time of the violation.

“Clearly established” turns on the clarity of the law at the time of the violation and the likelihood a reasonable defendant, given the facts of the case, would understand his conduct violated the right. A defendant must have “fair warning that his conduct was unconstitutional.”

For many decades the courts have entertained claims government officials have retaliated against a person for his exercise of activity protected by the First Amendment, see, e.g., Pickering v. Board. of Ed., 391 U.S. 563 (1968) (teacher fired for writing a critical letter to the editor).

The officers who arrested Gericke argued the filming of a traffic stop was not such a protected activity. The appellate disagreed, citing a case it decided involving the filming an arrest on Boston Common, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).

In both cases the subject of the filming was “police carrying out their duties in public.” Information gathered about how the police do so promotes “the free discussion of governmental affairs.”

The right to film a traffic stop is not absolute. The circumstances of some stops may justify reasonable time, place and manner restrictions on the exercise of the right. For example, an officer may order bystanders to disperse if he finds the person stopped to be armed. The order would have the incidental effect of halting any filming of the stop.

On the other hand an officer cannot ban filming unless he “can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.” “In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.” This expectation will bear on the reasonableness of any order directed at the right to film.

The only version of the facts before the court was Gericke’s. She alleged the officers did not impose any restriction on her filming. She heeded all of their orders but the last to produce her license. Her filming did not disrupt their work. To the court she was acting within her rights.

The court decided Glik two years before the arrest of Gericke. Glik made clear a citizen’s right to film a police action and the right of police to impose reasonable restrictions on the filming of traffic stops.

The arresting officers rightly chose not to restrict Gericke’s filming. Any reasonable officer would know that he could not later charge her at the station house with a crime for engaging in an activity protected by the First Amendment.

The case now goes to trial. The town alleges Gericke did disrupt the stop. If true, then her activities may not be protected by the First Amendment. We shall see what happens.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.