Saturday, September 17, 2011
Thursday, September 8, 2011
2011-09-08 "BART cops arrest dozens at protest in free-speech area" by Andrea Koskey
[http://www.sfexaminer.com/local/2011/09/bart-cops-arrest-dozens-protest-free-speech-area]
Protesters attempting to demonstrate in BART’s free-speech areas Thursday evening were quickly thwarted as transit agency police officers surrounded and detained about 30 people within the Powell Street station.
BART officials have previously said they would allow protests and freedom of speech demonstrations as long as they remained outside fare gates in the free speech area.
The arrests were made on grounds of interfering with BART’s ability to “provide safe operation of a railroad,” according to agency Deputy Police Chief Daniel Hartwig.
“We’re doing what BART police told us to do,” one protester said as he was taken away by police. “We’re outside the fare gates; we’re doing nothing illegal.”
The station was closed for about two hours following a 20-minute protest where dozens of community organizers wanted to test the free speech limitations of BART, according to Krystof Cantor of No Justice, No BART, which called for the demonstration.
“We don’t trust BART to protect us,” he said. “We’re here to see how warmly we are received.”
Cantor and many others slowly walked the perimeter of the nonpaid areas of the station’s main lobby, chanting, “Whose BART? Our BART!” and “How can BART protect and serve us? BART police just make me nervous!” BART police then moved in and created a perimeter surrounding the group. Cantor was the first person detained.
As protesters walked, though, commuters hurried to catch trains before the station closed.
Protesters had hoped the number of people gathered outside the gates would force BART to open the station and allow commuters to ride for free. Instead, the Powell Street station was closed by 5:30 p.m. All other stations remained open.
Hartwig said BART police and officials make the decision about when to arrest protesters. Though he would not respond to questions about the violation each person was arrested on, Hartwig said the crowd prevented passengers from getting through and police had to act.
“We are obliged to protect the system and protect our passengers,” he said.
Many of those detained were members of the media and student journalists from San Francisco State University and the University of San Francisco.
This is the sixth protest since July 11. Four have been organized by online hacker group Anonymous in response to BART shutting down cellphone service during a previous demonstration. Groups involved in Thursday’s protest have said they are responding to police brutality, specifically the fatal shootings of Oscar Grant III on New Year’s Day 2009 and Charles Hill on July 3.
2011-09-09 "BART protesters arrested - Powell Station closed" by Justin Berton and Vivian Ho from "San Francisco Chronicle"
[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/09/08/BA3R1L1SO1.DTL&tsp=1]
A crowd of chanting protesters converged on the Powell Street BART Station Thursday night and confronted police in riot gear, who formed a wall to block them from approaching the pay gates and then closed the station for two hours.
At least 50 protesters chanted "No justice, no peace" as they confronted officers. Several screamed and tussled with police as they were arrested in yet another episode of commuting delays and havoc on the besieged system.
The demonstrators, who dubbed themselves No Justice No BART, had promised to lie down in front of the turnstiles at the downtown San Francisco station, but they didn't get that far.
Police surrounded a group of protesters, including reporters, and then began making arrests. The protesters yelled at police, and some apparently struggled a bit as they were detained, but there was no violence.
Christopher Cantor, a 35-year-old protest leader from Oakland who goes by the name Krystof Lopaur; Christian Ream, 27, of San Francisco; and Mario Fernandez, 27, of Oakland, were among the protesters cuffed and led away by police during the confrontation, which began about 5:30 p.m. BART officials said 20 to 30 people were arrested on charges of disturbing the safe operation of a railroad.
Free rides -
"We weren't violating any laws, weren't causing an obstruction," complained Rick Altieri, 23, who was among the detainees. "There was no communication between police and protesters, no warning at all."
One Chronicle reporter and several student journalists were detained briefly. Meanwhile, the rest of the protesters fled up the escalators and stairs, and outside, where they chanted "Let them go, let them go."
Service at the station was stopped during the protest. Nobody was allowed to enter. Passengers exiting trains were allowed to exit. The Powell Station was reopened to passengers at 7:25 p.m.
The idea of the demonstration was to force BART to open the emergency exits and let passengers walk out for free. The protest group had intended to inconvenience the agency without inconveniencing passengers, but it didn't work out that way.
Agency officials had announced earlier in the day that they would not bow to the demands of the protesters.
"If they block the fare gates and do so in violation of the law, they are subject to arrest," said BART spokesman Jim Allison.
It was the latest in a series of actions by a large group of protesters who hope to force the transit agency to disband its police force. The group is upset about a BART police officer's fatal shooting of a transient on July 3 at Civic Center Station, allegedly as the man wound up to throw a knife. They are also angry about the agency's decision Aug. 11 to shut down underground wireless service to thwart a planned protest.
A hack attack was among the various disruptive tactics. Hackers infiltrated the myBART.org and BART police union sites last month and leaked private information, including the addresses of officers, in response to the agency's shutdown of wireless service Aug. 11.
Little sympathy -
The cause has not generated a lot of sympathy from passengers.
Several angry pedestrians and commuters confronted the demonstrators Thursday as they chanted and loitered outside the closed station, accusing them of selfishly disrupting train service and inconveniencing commuters.
"I think they are really being inconsiderate," said Bruce Halperin, 24, of San Francisco, who argued with several of the demonstrators. "They have the right to protest but they are abridging other people's rights by crowding the fare gates and not letting other people move about."
Commuters angered -
Past demonstrations against BART over the past several weeks have infuriated commuters, who have been delayed when the agency closed stations in response to the protesters' actions. Some angry commuters have shouted at protesters, and one attacked them.
Allison said BART's response to the demonstration adds to an estimated $300,000 price tag for dealing with the protests in downtown San Francisco.
"In the past, there have been spontaneous events, including antiwar and immigration rallies and the Giants (World Series) parade, where it was safer to open the swing gates and let everyone through," Allison said. "But I'm not aware of any case where someone has announced in advance, 'We're going to do this and you must open the swing gates' " he said, referring to the emergency exits that the protesters sought to have opened Thursday.
Beck Diefenbach / Special to The Chronicle
Protesters carry a banner depicting "Disarm Cops, Arm Feminists" during a protest in the Powell Street BART and MUNI station on Thursday, September 8, 2011 in San Francisco, Calif.
2011-09-06 "Statement Read At Press Conference Today Regarding Upcoming Sept 8th BART Protest" by "Feminists against Cops"
[http://www.indybay.org/newsitems/2011/09/06/18689574.php]
As Feminists against Cops, we want everyone across the bay area to know that women are not safer because of police presence, in BART or elsewhere. Quite the opposite. Many women are in danger because of the police. Every police institution is sexist and violent. The police are more of a threat to women than a protection, and we do not want our public transport system militarized.
Let’s be clear: the police are here to protect the capitalists and the state institutions, not us. The police have been given the authority to determine our freedom of movement, to harass us and enter our homes. The police even have the authority to determine if we live or die.
There are many accounts of police murdering youth of color in the bay area, or of police murdering homeless people, or whomever they see fit. There are as many accounts of police using their power as police and as men to dominate, harass, intimidate, imprison, and rape women. Many police feel that they have a right to women’s bodies, and when they abuse our bodies it is considered “normal” police procedure.
We are not asking for a less brutal police force because we know that brutality is an inevitable product of this policing system. Police only exist in order to brutally repress us. We must free ourselves. We are asking you to join us as we continue to struggle against the police. The quick and inhumane murder of Charles Hill is a warning: if you call the police you are putting people in danger of their lives.
To the media and to the police we say: do not use women’s bodies and the claim that you are protecting our bodies as an excuse for murder. You called Kenneth Harding a pimp to excuse shooting him in the back. But Kenneth Harding was not harming any women when he was murdered-he was evading paying his fare as many of us do. The ridiculous BART fares are a burden for people who struggle for survival. We evade fares because we claim the right to be able to move freely even if we don’t have the money to pay the fares. Since evading fare is part of how we survive and move freely, then this also means that in order to survive and move freely, we must resist police.
Our message to the police is this: we are under no illusion that you make us safer, or that you protect us. We women join these anti-police movements, including the Oscar grant riots and the response to the murders of Charles Hill and Kenneth Harding, because safety to us as women means resisting the police.
2011-09-09 "Glen Park BART attacked: We didn't do it for the lulz" by "Some Bay Area Anarchists"
[http://www.indybay.org/newsitems/2011/09/09/18689786.php]
On the evening of September 8th, 2011 we sabotaged the fare machines, turnstyles and facade of the Glen Park BART station in South San Francisco. Just as we have been inspired by comparable actions of anarchists world wide, we hope to act as a catalyst to incite similar actions against the state and it's apparatuses of control.
On the evening of September 8th, 2011 we sabotaged the fare machines, turnstyles and facade of the Glen Park BART station in South San Francisco. Just as we have been inspired by comparable actions of anarchists world wide, we hope to act as a catalyst to incite similar actions against the state and it's apparatuses of control.
Our spray cans dispensed slogans and our hammers shattered screens and ticket readers. We look to each other to find meaning and reject the limiting discourse of rights and free speech as a vehicle for our rage. We communicate this now to denounce the authority of a society that violently represses us every time we step out of line.
All police are the enemy. We articulate this when we choose to honor the lives of Oscar Grant, Charles Hill and Kenneth Harding by fighting for our own lives. This same passion for freedom can be observed from Seattle to Greece to Chile. As anarchists we understand that the social control of transit fares exists in harmony with the deadly enforcement of the physical, emotional, and social desolation of our everyday lives. We aim to interrupt this concert at every feasible opportunity.
The police and the media will spin this event as petty vandalism. Some will condemn us and suggest that violence against property promotes state repression, but we have lost our fear. We do not seek approval from any authority and for this reason we abandon the tired structure of demand.We look to explore our capacity to exemplify our collective abilities and to encourage others to resist in ever more autonomous and uncontrollabe ways. Freedom to those arrested at today's Powell Street action. See you at the barricades.
PS: mad props to the wildcat longshoremen of washington. keep it wild
2011-09-09 "Vandals attack BART's Glen Park station"
[http://abclocal.go.com/kgo/story?section=news/local/san_francisco&id=8347319]
SAN FRANCISCO (KGO) -- BART police are investigating an attack by vandals at the Glen Park station in San Francisco.
A group of about 10 to 20 vandals damaged turnstiles and spray-painted graffiti at the Glen Park station Thursday night. They swung hammers and destroyed the Clipper Card readers at the station's entrance. Some of the devices are still not working Friday morning. Someone scrawled the name of Charles Hill on the ground. He's the man who was shot to death by BART police in July.
BART's Powell Street station is open Friday morning following Thursday evening's protest that shut it down at the height of the commute. Police arrested more than two dozen protestors on the platform. The group called 'No Justice, No BART' was trying to force BART into allowing passengers to ride the trains for free. They wanted to make the station so congested, that officials would have no choice but to open the emergency gates.
[http://www.sfexaminer.com/local/2011/09/bart-cops-arrest-dozens-protest-free-speech-area]
Protesters attempting to demonstrate in BART’s free-speech areas Thursday evening were quickly thwarted as transit agency police officers surrounded and detained about 30 people within the Powell Street station.
BART officials have previously said they would allow protests and freedom of speech demonstrations as long as they remained outside fare gates in the free speech area.
The arrests were made on grounds of interfering with BART’s ability to “provide safe operation of a railroad,” according to agency Deputy Police Chief Daniel Hartwig.
“We’re doing what BART police told us to do,” one protester said as he was taken away by police. “We’re outside the fare gates; we’re doing nothing illegal.”
The station was closed for about two hours following a 20-minute protest where dozens of community organizers wanted to test the free speech limitations of BART, according to Krystof Cantor of No Justice, No BART, which called for the demonstration.
“We don’t trust BART to protect us,” he said. “We’re here to see how warmly we are received.”
Cantor and many others slowly walked the perimeter of the nonpaid areas of the station’s main lobby, chanting, “Whose BART? Our BART!” and “How can BART protect and serve us? BART police just make me nervous!” BART police then moved in and created a perimeter surrounding the group. Cantor was the first person detained.
As protesters walked, though, commuters hurried to catch trains before the station closed.
Protesters had hoped the number of people gathered outside the gates would force BART to open the station and allow commuters to ride for free. Instead, the Powell Street station was closed by 5:30 p.m. All other stations remained open.
Hartwig said BART police and officials make the decision about when to arrest protesters. Though he would not respond to questions about the violation each person was arrested on, Hartwig said the crowd prevented passengers from getting through and police had to act.
“We are obliged to protect the system and protect our passengers,” he said.
Many of those detained were members of the media and student journalists from San Francisco State University and the University of San Francisco.
This is the sixth protest since July 11. Four have been organized by online hacker group Anonymous in response to BART shutting down cellphone service during a previous demonstration. Groups involved in Thursday’s protest have said they are responding to police brutality, specifically the fatal shootings of Oscar Grant III on New Year’s Day 2009 and Charles Hill on July 3.
2011-09-09 "BART protesters arrested - Powell Station closed" by Justin Berton and Vivian Ho from "San Francisco Chronicle"
[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/09/08/BA3R1L1SO1.DTL&tsp=1]
A crowd of chanting protesters converged on the Powell Street BART Station Thursday night and confronted police in riot gear, who formed a wall to block them from approaching the pay gates and then closed the station for two hours.
At least 50 protesters chanted "No justice, no peace" as they confronted officers. Several screamed and tussled with police as they were arrested in yet another episode of commuting delays and havoc on the besieged system.
The demonstrators, who dubbed themselves No Justice No BART, had promised to lie down in front of the turnstiles at the downtown San Francisco station, but they didn't get that far.
Police surrounded a group of protesters, including reporters, and then began making arrests. The protesters yelled at police, and some apparently struggled a bit as they were detained, but there was no violence.
Christopher Cantor, a 35-year-old protest leader from Oakland who goes by the name Krystof Lopaur; Christian Ream, 27, of San Francisco; and Mario Fernandez, 27, of Oakland, were among the protesters cuffed and led away by police during the confrontation, which began about 5:30 p.m. BART officials said 20 to 30 people were arrested on charges of disturbing the safe operation of a railroad.
Free rides -
"We weren't violating any laws, weren't causing an obstruction," complained Rick Altieri, 23, who was among the detainees. "There was no communication between police and protesters, no warning at all."
One Chronicle reporter and several student journalists were detained briefly. Meanwhile, the rest of the protesters fled up the escalators and stairs, and outside, where they chanted "Let them go, let them go."
Service at the station was stopped during the protest. Nobody was allowed to enter. Passengers exiting trains were allowed to exit. The Powell Station was reopened to passengers at 7:25 p.m.
The idea of the demonstration was to force BART to open the emergency exits and let passengers walk out for free. The protest group had intended to inconvenience the agency without inconveniencing passengers, but it didn't work out that way.
Agency officials had announced earlier in the day that they would not bow to the demands of the protesters.
"If they block the fare gates and do so in violation of the law, they are subject to arrest," said BART spokesman Jim Allison.
It was the latest in a series of actions by a large group of protesters who hope to force the transit agency to disband its police force. The group is upset about a BART police officer's fatal shooting of a transient on July 3 at Civic Center Station, allegedly as the man wound up to throw a knife. They are also angry about the agency's decision Aug. 11 to shut down underground wireless service to thwart a planned protest.
A hack attack was among the various disruptive tactics. Hackers infiltrated the myBART.org and BART police union sites last month and leaked private information, including the addresses of officers, in response to the agency's shutdown of wireless service Aug. 11.
Little sympathy -
The cause has not generated a lot of sympathy from passengers.
Several angry pedestrians and commuters confronted the demonstrators Thursday as they chanted and loitered outside the closed station, accusing them of selfishly disrupting train service and inconveniencing commuters.
"I think they are really being inconsiderate," said Bruce Halperin, 24, of San Francisco, who argued with several of the demonstrators. "They have the right to protest but they are abridging other people's rights by crowding the fare gates and not letting other people move about."
Commuters angered -
Past demonstrations against BART over the past several weeks have infuriated commuters, who have been delayed when the agency closed stations in response to the protesters' actions. Some angry commuters have shouted at protesters, and one attacked them.
Allison said BART's response to the demonstration adds to an estimated $300,000 price tag for dealing with the protests in downtown San Francisco.
"In the past, there have been spontaneous events, including antiwar and immigration rallies and the Giants (World Series) parade, where it was safer to open the swing gates and let everyone through," Allison said. "But I'm not aware of any case where someone has announced in advance, 'We're going to do this and you must open the swing gates' " he said, referring to the emergency exits that the protesters sought to have opened Thursday.
Beck Diefenbach / Special to The Chronicle
Protesters carry a banner depicting "Disarm Cops, Arm Feminists" during a protest in the Powell Street BART and MUNI station on Thursday, September 8, 2011 in San Francisco, Calif.
2011-09-06 "Statement Read At Press Conference Today Regarding Upcoming Sept 8th BART Protest" by "Feminists against Cops"
[http://www.indybay.org/newsitems/2011/09/06/18689574.php]
As Feminists against Cops, we want everyone across the bay area to know that women are not safer because of police presence, in BART or elsewhere. Quite the opposite. Many women are in danger because of the police. Every police institution is sexist and violent. The police are more of a threat to women than a protection, and we do not want our public transport system militarized.
Let’s be clear: the police are here to protect the capitalists and the state institutions, not us. The police have been given the authority to determine our freedom of movement, to harass us and enter our homes. The police even have the authority to determine if we live or die.
There are many accounts of police murdering youth of color in the bay area, or of police murdering homeless people, or whomever they see fit. There are as many accounts of police using their power as police and as men to dominate, harass, intimidate, imprison, and rape women. Many police feel that they have a right to women’s bodies, and when they abuse our bodies it is considered “normal” police procedure.
We are not asking for a less brutal police force because we know that brutality is an inevitable product of this policing system. Police only exist in order to brutally repress us. We must free ourselves. We are asking you to join us as we continue to struggle against the police. The quick and inhumane murder of Charles Hill is a warning: if you call the police you are putting people in danger of their lives.
To the media and to the police we say: do not use women’s bodies and the claim that you are protecting our bodies as an excuse for murder. You called Kenneth Harding a pimp to excuse shooting him in the back. But Kenneth Harding was not harming any women when he was murdered-he was evading paying his fare as many of us do. The ridiculous BART fares are a burden for people who struggle for survival. We evade fares because we claim the right to be able to move freely even if we don’t have the money to pay the fares. Since evading fare is part of how we survive and move freely, then this also means that in order to survive and move freely, we must resist police.
Our message to the police is this: we are under no illusion that you make us safer, or that you protect us. We women join these anti-police movements, including the Oscar grant riots and the response to the murders of Charles Hill and Kenneth Harding, because safety to us as women means resisting the police.
2011-09-09 "Glen Park BART attacked: We didn't do it for the lulz" by "Some Bay Area Anarchists"
[http://www.indybay.org/newsitems/2011/09/09/18689786.php]
On the evening of September 8th, 2011 we sabotaged the fare machines, turnstyles and facade of the Glen Park BART station in South San Francisco. Just as we have been inspired by comparable actions of anarchists world wide, we hope to act as a catalyst to incite similar actions against the state and it's apparatuses of control.
On the evening of September 8th, 2011 we sabotaged the fare machines, turnstyles and facade of the Glen Park BART station in South San Francisco. Just as we have been inspired by comparable actions of anarchists world wide, we hope to act as a catalyst to incite similar actions against the state and it's apparatuses of control.
Our spray cans dispensed slogans and our hammers shattered screens and ticket readers. We look to each other to find meaning and reject the limiting discourse of rights and free speech as a vehicle for our rage. We communicate this now to denounce the authority of a society that violently represses us every time we step out of line.
All police are the enemy. We articulate this when we choose to honor the lives of Oscar Grant, Charles Hill and Kenneth Harding by fighting for our own lives. This same passion for freedom can be observed from Seattle to Greece to Chile. As anarchists we understand that the social control of transit fares exists in harmony with the deadly enforcement of the physical, emotional, and social desolation of our everyday lives. We aim to interrupt this concert at every feasible opportunity.
The police and the media will spin this event as petty vandalism. Some will condemn us and suggest that violence against property promotes state repression, but we have lost our fear. We do not seek approval from any authority and for this reason we abandon the tired structure of demand.We look to explore our capacity to exemplify our collective abilities and to encourage others to resist in ever more autonomous and uncontrollabe ways. Freedom to those arrested at today's Powell Street action. See you at the barricades.
PS: mad props to the wildcat longshoremen of washington. keep it wild
2011-09-09 "Vandals attack BART's Glen Park station"
[http://abclocal.go.com/kgo/story?section=news/local/san_francisco&id=8347319]
SAN FRANCISCO (KGO) -- BART police are investigating an attack by vandals at the Glen Park station in San Francisco.
A group of about 10 to 20 vandals damaged turnstiles and spray-painted graffiti at the Glen Park station Thursday night. They swung hammers and destroyed the Clipper Card readers at the station's entrance. Some of the devices are still not working Friday morning. Someone scrawled the name of Charles Hill on the ground. He's the man who was shot to death by BART police in July.
BART's Powell Street station is open Friday morning following Thursday evening's protest that shut it down at the height of the commute. Police arrested more than two dozen protestors on the platform. The group called 'No Justice, No BART' was trying to force BART into allowing passengers to ride the trains for free. They wanted to make the station so congested, that officials would have no choice but to open the emergency gates.
2011-09-08 "Justice for Nate (Dwayne Nathan Hendricks II)" by Pat Hendricks Munson ( photopatt [at] hotmail.com )
[http://www.indybay.org/newsitems/2011/09/08/18689763.php]
Asking for help in bringing to justice the person/persons responsible for murdering my son, Dwayne Nathan Hendricks II, May 1, 2010 in East Oakland, California.
My son was shot and killed in East Oakland, California May 1, 2010. It has been over one year and still there are no arrests, no charges, no justice. I need some answers, I need justice to prevail and some semblance of closure (as there can never be any real closure to the loss and grief we all experience on a daily basis). I'm getting angry now at the realization that some coward or cowards have taken away a beautiful life, my son's life: My daughter's only sibling, my daughter-in-law's husband, my two grandchildren's father, my other two grandchildren's uncle, a nephew to so many by blood and common bond; his life simply taken away without any consequences or repercusions to those responsible. That's hard to live with.
Someone knows who committed this crime. People were out there and saw what happened. I'm asking and pleading with you to come forward and tell us what you saw and heard. There remains in place a Crimstoppers reward of up to $10,000 for information leading to the arrest and conviction of this murderer.
I ask all of my Bay Area, especially Oakland, family and friends to share my page, facebook.com/justicefornate. Keep it going for me please. I know the truth will be told sooner or later but of course I want it much sooner than later.
"Truth crushed to earth will rise again" Martin Luther King, Jr.
Nate, a drummer from birth.
[http://www.indybay.org/newsitems/2011/09/08/18689763.php]
Asking for help in bringing to justice the person/persons responsible for murdering my son, Dwayne Nathan Hendricks II, May 1, 2010 in East Oakland, California.
My son was shot and killed in East Oakland, California May 1, 2010. It has been over one year and still there are no arrests, no charges, no justice. I need some answers, I need justice to prevail and some semblance of closure (as there can never be any real closure to the loss and grief we all experience on a daily basis). I'm getting angry now at the realization that some coward or cowards have taken away a beautiful life, my son's life: My daughter's only sibling, my daughter-in-law's husband, my two grandchildren's father, my other two grandchildren's uncle, a nephew to so many by blood and common bond; his life simply taken away without any consequences or repercusions to those responsible. That's hard to live with.
Someone knows who committed this crime. People were out there and saw what happened. I'm asking and pleading with you to come forward and tell us what you saw and heard. There remains in place a Crimstoppers reward of up to $10,000 for information leading to the arrest and conviction of this murderer.
I ask all of my Bay Area, especially Oakland, family and friends to share my page, facebook.com/justicefornate. Keep it going for me please. I know the truth will be told sooner or later but of course I want it much sooner than later.
"Truth crushed to earth will rise again" Martin Luther King, Jr.
Nate, a drummer from birth.
2011-09-08 "Civil Rights Trial About Fatal Police Beating of Martin Cotton Begins Monday, September 12th" by Verbena Lea from "Redwood Curtain CopWatch"
[707.633.4493] [copwatchrwc@gmail.com]
On August 9, 2007, Martin Frederick Cotton II, unarmed and defenseless, was beaten brutally on the street by Eureka Police officers and further abused by Humboldt Co. Sheriff “correctional officers” - who left Martin to die in a jail cell.
In September of 2008, Martin's baby daughter and his father, Marty Cotton, brought a federal civil rights lawsuit, which begins jury selection in Oakland, California on Monday, September 12, 2011 at 8:30am.
The U.S. District Court (Northern District) in Oakland, is at 1301 Clay Street. The trial will be in Courtroom #1 on the 4th Floor, Saundra Brown Armstrong presiding. The case is Siehna M. Cotton et al v. City of Eureka California et al (4:08-cv-04386-SBA).
The trial is scheduled from 8:30am to 2:00pm on Monday Sept 12, Wednesday Sept 14, Thursday Sept 15, and Friday Sept 16. (No trial on Tuesdays) The trial is expected to last about 7 days. On Monday Sept 19, trial will run from 1:00pm to 5:00 pm, and on Wednesday and Thursday (September 21 and 22) trial will run from 8:00am to 12:00pm.
Redwood Curtain CopWatch, based out of Humboldt County- where Martin Cotton II was beaten to death- and the Oscar Grant Committee Against Police Brutality, based out of Oakland, will be rallying in opposition to police violence Monday morning before court proceedings.
[707.633.4493] [copwatchrwc@gmail.com]
On August 9, 2007, Martin Frederick Cotton II, unarmed and defenseless, was beaten brutally on the street by Eureka Police officers and further abused by Humboldt Co. Sheriff “correctional officers” - who left Martin to die in a jail cell.
In September of 2008, Martin's baby daughter and his father, Marty Cotton, brought a federal civil rights lawsuit, which begins jury selection in Oakland, California on Monday, September 12, 2011 at 8:30am.
The U.S. District Court (Northern District) in Oakland, is at 1301 Clay Street. The trial will be in Courtroom #1 on the 4th Floor, Saundra Brown Armstrong presiding. The case is Siehna M. Cotton et al v. City of Eureka California et al (4:08-cv-04386-SBA).
The trial is scheduled from 8:30am to 2:00pm on Monday Sept 12, Wednesday Sept 14, Thursday Sept 15, and Friday Sept 16. (No trial on Tuesdays) The trial is expected to last about 7 days. On Monday Sept 19, trial will run from 1:00pm to 5:00 pm, and on Wednesday and Thursday (September 21 and 22) trial will run from 8:00am to 12:00pm.
Redwood Curtain CopWatch, based out of Humboldt County- where Martin Cotton II was beaten to death- and the Oscar Grant Committee Against Police Brutality, based out of Oakland, will be rallying in opposition to police violence Monday morning before court proceedings.
Friday, September 2, 2011
The Other Side of the COIN: Counterinsurgency and Community Policing
posted 2011-09-02 from a study by Kristian Williams:
The following discussion of U.S. domestic counterinsurgency is adapted and condensed with permission from “The Other Side of the COIN: Counterinsurgency and Community Policing” by Kristian Williams. Williams is a member of Rose City Copwatch in Portland, Oregon, and the author of Our Enemies in Blue: Police and Power in America (Soft Skull, 2004; South End Press, 2007). The full paper appeared in the May 2011 issue of Interface, and a full list of bibliographic sources can be found there.
---
The unrest of the 1960s left the police in a difficult position. The cops’ response to the social movements of the day — the civil rights and anti-war movements especially — had cost them dearly in terms of public credibility, elite support, and officer morale. Frequent and overt recourse to violence, combined with covert surveillance, infiltration, and disruption (typified by the FBI’s COINTELPRO operations), had not only failed to squelch the popular movements, it had also diminished trust in law enforcement.
The police needed to re-invent themselves, and the first place they looked for models was the military. Military training, tactics, equipment, and weaponry, made their way into domestic police departments — as did veterans returning from Vietnam, and, more subtly, military approaches to organization, deployment, and command and control. Police strategists specifically began studying counterinsurgency warfare.
“Counterinsurgency” (or “COIN” is military jargon) refers to a kind of military operation outside of conventional army-vs.-army war-fighting, and is sometimes called “low-intensity” or “asymmetrical” combat. But counterinsurgency also describes a particular perspective on how such operations ought to be managed. This style of warfare is characterized by an emphasis on intelligence, security and peace-keeping operations, population control, propaganda, and efforts to gain the trust of the people.
This last point is the crucial one. As U.S. Army Field Manual, FM 3-24, Counterinsurgency, declares: “Legitimacy is the main objective.”
So during the period of police militarization, the cops also began experimenting with a “softer,” more friendly type of law enforcement — foot patrols, neighborhood meetings, police-sponsored youth activities, and attention to quality-of-life issues quite apart from crime. These techniques eventually coalesced into an approach called “community policing.”
Both militarization and community policing arose at the same time, and in response to the same social pressures. The advantages the state receives from each aspect are fairly clear: Militarization increases available force, but as important, it also provides improved discipline and command and control. It re-orders the police agency to allow for better coordination and teamwork, while also opening space for local initiative and officer discretion.
Community policing, meanwhile, helps to legitimize police efforts by presenting cops as problem-solvers. It forms police-driven partnerships that put additional resources at their disposal and win the cooperation of community leaders. And, by increasing daily, friendly contacts with people in the neighborhood, community policing provides a direct supply of low-level information.
Such information is vital, because COIN theorists advocate preemptive action against budding rebellions. The problem is that, at the early stages, subversion is not obvious and the state may not know that a threat exists. In order to anticipate conflict and prevent an insurgency, as FM 3-24 explains, COIN strategists “require insight into cultures, perceptions, values, beliefs, interests and decision-making processes of individuals and groups.” The resulting intelligence work is concerned with questions that are primarily sociological.
The U.S. government’s mapping of the American Muslim population should be viewed in this light. In 2002 and 2003, the Department of Homeland Security requested — and received — statistical data, sorted by zip code and nationality, on people who identified themselves as “Arab” in the 2000 census. And in February 2003, FBI director Robert Mueller ordered all 56 Bureau field offices to create demographic profiles of their areas of operation, specifically including the number of mosques. One Justice Department official explained that the demographics would be used “to set performance goals and objectives” for anti-terror efforts and electronic surveillance. Similarly, in 2007, the LAPD began planning its own mapping program, dressed in the rhetoric of community policing. As the L.A. Times reported, the “Los Angeles Police Department’s counter-terrorism bureau proposed using U.S. census data and other demographic information to pinpoint various Muslim communities and then reach out to them through social service agencies.”
By working with welfare services, churches, non-profits, and similar organizations, police can insinuate themselves into the fabric of neighborhood life, gain access to new sources of information, and influence community leaders. Sometimes the police can used these relationships to channel and control political opposition, moving it in safe, institutional, and reformist directions, rather than toward more radical or militant action.
We saw this dynamic at work in Oakland after transit police shot and killed an unarmed black man in 2009. In practice, preventing riots became the primary focus of the institutionalized left, as local nonprofits and churches collaborated with police to contain community anger and channel it into ritualized protest. There is no guarantee that resistance would have gone further had the nonprofits not intervened, or that greater conflict would have won greater gains. But their intervention certainly helped to contain the rebellion, and closed off untold possibilities for further action. That is, quite clearly, what it was intended to do.
We also see the logic of counterinsurgency at work in police anti-gang campaigns: The creation of databases listing suspected gang members; the mapping of the social environment, illustrating connections between gang members, associates, families, etc.; the development of community contacts, especially with local leaders — all these police practices mirror the techniques of military occupation. Police intelligence efforts are then paired with a campaign of persistent low-level harassment — stops, searches, petty citations, and the like. Each instance of harassment offers the cops the opportunity to collect additional information on the gang network while at the same time creating an inhospitable environment for those associated with gang activity.
For example, in Salinas, California, the Monterey County Gang Task Force conducts mass-arrest “round-ups,” makes random traffic stops, and regularly searches the homes of gang members on parole or probation. The sheer volume of such activity is astonishing: Since it was formed in 2005, the Task Force has been responsible for 21,000 vehicle or pedestrian stops, 5,000 parole and probation “compliance” searches, and 2,800 arrests.
Furthermore, since February 2009, combat veterans from Iraq and Afghanistan have been serving as advisors to Salinas police, with the stated aim of applying counterinsurgency tools to local anti-gang efforts. Along with their expertise, the military advisors also arrive with software, including a computer program that maps the connections between gang activity, individual suspects, and their social circles, family ties, and neighborhood connections.
This police-military partnership is occurring alongside a renewal and expansion of the SPD’s community policing philosophy. The new community focus (encouraged by the military advisors) includes Spanish language training, “Gifts for Guns” trade-in events, an anonymous tip hotline, senior-citizen volunteer programs, a larger role for the Police Community Advisory Council, and police-sponsored after-school activities.
Salinas police have also initiated partnerships with other local, state, and federal law enforcement agencies, including the Marshals, the ATF (Alcohol, Tobacco, and Firearms), the FBI, and Immigration and Customs Enforcement. The most spectacular product of these partnerships, so far, was a set of coordinated raids on April 22, 2010, codenamed “Operation Knockout.”
The raids — coming after months of investigation — mobilized more than 200 law enforcement agents and resulted in 100 arrests, as well as the confiscation of forty pounds of cocaine, fourteen pounds of marijuana, and a dozen guns. Operation Knockout was intended, not only to disrupt the targeted gangs, but to serve as a warning to others. Deputy Police Chief Kelly McMillin said: “We’re going to follow quickly with call-ins of specific groups that we know are very active. . . . We are going to tell them that what happened on the 22nd could very well happen to them.”
Such anti-gang efforts are always implicitly political, especially as they become permanent features of life in poor Black and Latino communities. Though ostensibly aimed at preventing gang violence, counter-gang campaigns inevitably lead police to monitor the entire community. One Fresno cop explains the intended scope of his department’s gang files: “If you’re twenty-one, male, living in one of these neighborhoods, been in Fresno for ten years and you’re not in our computerthen there’s definitely a problem.”
With the emergence of the counterinsurgency model, the state has ceased to view subversives in isolation from the society surrounding them. Increasingly, it has directed its attention — its intelligence gathering, its coercive force, and its alliance building — toward the population as a whole. Repression, in other words, is not something that happens solely, or even mainly, to activists; and it not just the province of red squads, but of gang enforcement teams, neighborhood liaison officers, and even police advisory boards. It comprises all those methods — routine and extraordinary, coercive and collaborative — used to regulate the conflict inherent in a stratified society. Our task is to decipher the politics implicit in these efforts, to discern the ways that they preserve state power, neutralize resistance, and maintain social inequality.
Our further task is to respond. An effective response to repression must include an offensive component — an attack against the apparatus of repression, which (if successful) will leave the state weaker and the social movement stronger. This outcome, of course, should be the aim from the start.
But it is, in a sense, misleading to speak solely in terms of responding to repression. Repression exists already. It intervenes preemptively. It forms part of the context in which we act. Oppositional movements cannot avoid repression; the challenge, instead, must be to overcome it
The following discussion of U.S. domestic counterinsurgency is adapted and condensed with permission from “The Other Side of the COIN: Counterinsurgency and Community Policing” by Kristian Williams. Williams is a member of Rose City Copwatch in Portland, Oregon, and the author of Our Enemies in Blue: Police and Power in America (Soft Skull, 2004; South End Press, 2007). The full paper appeared in the May 2011 issue of Interface, and a full list of bibliographic sources can be found there.
---
The unrest of the 1960s left the police in a difficult position. The cops’ response to the social movements of the day — the civil rights and anti-war movements especially — had cost them dearly in terms of public credibility, elite support, and officer morale. Frequent and overt recourse to violence, combined with covert surveillance, infiltration, and disruption (typified by the FBI’s COINTELPRO operations), had not only failed to squelch the popular movements, it had also diminished trust in law enforcement.
The police needed to re-invent themselves, and the first place they looked for models was the military. Military training, tactics, equipment, and weaponry, made their way into domestic police departments — as did veterans returning from Vietnam, and, more subtly, military approaches to organization, deployment, and command and control. Police strategists specifically began studying counterinsurgency warfare.
“Counterinsurgency” (or “COIN” is military jargon) refers to a kind of military operation outside of conventional army-vs.-army war-fighting, and is sometimes called “low-intensity” or “asymmetrical” combat. But counterinsurgency also describes a particular perspective on how such operations ought to be managed. This style of warfare is characterized by an emphasis on intelligence, security and peace-keeping operations, population control, propaganda, and efforts to gain the trust of the people.
This last point is the crucial one. As U.S. Army Field Manual, FM 3-24, Counterinsurgency, declares: “Legitimacy is the main objective.”
So during the period of police militarization, the cops also began experimenting with a “softer,” more friendly type of law enforcement — foot patrols, neighborhood meetings, police-sponsored youth activities, and attention to quality-of-life issues quite apart from crime. These techniques eventually coalesced into an approach called “community policing.”
Both militarization and community policing arose at the same time, and in response to the same social pressures. The advantages the state receives from each aspect are fairly clear: Militarization increases available force, but as important, it also provides improved discipline and command and control. It re-orders the police agency to allow for better coordination and teamwork, while also opening space for local initiative and officer discretion.
Community policing, meanwhile, helps to legitimize police efforts by presenting cops as problem-solvers. It forms police-driven partnerships that put additional resources at their disposal and win the cooperation of community leaders. And, by increasing daily, friendly contacts with people in the neighborhood, community policing provides a direct supply of low-level information.
Such information is vital, because COIN theorists advocate preemptive action against budding rebellions. The problem is that, at the early stages, subversion is not obvious and the state may not know that a threat exists. In order to anticipate conflict and prevent an insurgency, as FM 3-24 explains, COIN strategists “require insight into cultures, perceptions, values, beliefs, interests and decision-making processes of individuals and groups.” The resulting intelligence work is concerned with questions that are primarily sociological.
The U.S. government’s mapping of the American Muslim population should be viewed in this light. In 2002 and 2003, the Department of Homeland Security requested — and received — statistical data, sorted by zip code and nationality, on people who identified themselves as “Arab” in the 2000 census. And in February 2003, FBI director Robert Mueller ordered all 56 Bureau field offices to create demographic profiles of their areas of operation, specifically including the number of mosques. One Justice Department official explained that the demographics would be used “to set performance goals and objectives” for anti-terror efforts and electronic surveillance. Similarly, in 2007, the LAPD began planning its own mapping program, dressed in the rhetoric of community policing. As the L.A. Times reported, the “Los Angeles Police Department’s counter-terrorism bureau proposed using U.S. census data and other demographic information to pinpoint various Muslim communities and then reach out to them through social service agencies.”
By working with welfare services, churches, non-profits, and similar organizations, police can insinuate themselves into the fabric of neighborhood life, gain access to new sources of information, and influence community leaders. Sometimes the police can used these relationships to channel and control political opposition, moving it in safe, institutional, and reformist directions, rather than toward more radical or militant action.
We saw this dynamic at work in Oakland after transit police shot and killed an unarmed black man in 2009. In practice, preventing riots became the primary focus of the institutionalized left, as local nonprofits and churches collaborated with police to contain community anger and channel it into ritualized protest. There is no guarantee that resistance would have gone further had the nonprofits not intervened, or that greater conflict would have won greater gains. But their intervention certainly helped to contain the rebellion, and closed off untold possibilities for further action. That is, quite clearly, what it was intended to do.
We also see the logic of counterinsurgency at work in police anti-gang campaigns: The creation of databases listing suspected gang members; the mapping of the social environment, illustrating connections between gang members, associates, families, etc.; the development of community contacts, especially with local leaders — all these police practices mirror the techniques of military occupation. Police intelligence efforts are then paired with a campaign of persistent low-level harassment — stops, searches, petty citations, and the like. Each instance of harassment offers the cops the opportunity to collect additional information on the gang network while at the same time creating an inhospitable environment for those associated with gang activity.
For example, in Salinas, California, the Monterey County Gang Task Force conducts mass-arrest “round-ups,” makes random traffic stops, and regularly searches the homes of gang members on parole or probation. The sheer volume of such activity is astonishing: Since it was formed in 2005, the Task Force has been responsible for 21,000 vehicle or pedestrian stops, 5,000 parole and probation “compliance” searches, and 2,800 arrests.
Furthermore, since February 2009, combat veterans from Iraq and Afghanistan have been serving as advisors to Salinas police, with the stated aim of applying counterinsurgency tools to local anti-gang efforts. Along with their expertise, the military advisors also arrive with software, including a computer program that maps the connections between gang activity, individual suspects, and their social circles, family ties, and neighborhood connections.
This police-military partnership is occurring alongside a renewal and expansion of the SPD’s community policing philosophy. The new community focus (encouraged by the military advisors) includes Spanish language training, “Gifts for Guns” trade-in events, an anonymous tip hotline, senior-citizen volunteer programs, a larger role for the Police Community Advisory Council, and police-sponsored after-school activities.
Salinas police have also initiated partnerships with other local, state, and federal law enforcement agencies, including the Marshals, the ATF (Alcohol, Tobacco, and Firearms), the FBI, and Immigration and Customs Enforcement. The most spectacular product of these partnerships, so far, was a set of coordinated raids on April 22, 2010, codenamed “Operation Knockout.”
The raids — coming after months of investigation — mobilized more than 200 law enforcement agents and resulted in 100 arrests, as well as the confiscation of forty pounds of cocaine, fourteen pounds of marijuana, and a dozen guns. Operation Knockout was intended, not only to disrupt the targeted gangs, but to serve as a warning to others. Deputy Police Chief Kelly McMillin said: “We’re going to follow quickly with call-ins of specific groups that we know are very active. . . . We are going to tell them that what happened on the 22nd could very well happen to them.”
Such anti-gang efforts are always implicitly political, especially as they become permanent features of life in poor Black and Latino communities. Though ostensibly aimed at preventing gang violence, counter-gang campaigns inevitably lead police to monitor the entire community. One Fresno cop explains the intended scope of his department’s gang files: “If you’re twenty-one, male, living in one of these neighborhoods, been in Fresno for ten years and you’re not in our computerthen there’s definitely a problem.”
With the emergence of the counterinsurgency model, the state has ceased to view subversives in isolation from the society surrounding them. Increasingly, it has directed its attention — its intelligence gathering, its coercive force, and its alliance building — toward the population as a whole. Repression, in other words, is not something that happens solely, or even mainly, to activists; and it not just the province of red squads, but of gang enforcement teams, neighborhood liaison officers, and even police advisory boards. It comprises all those methods — routine and extraordinary, coercive and collaborative — used to regulate the conflict inherent in a stratified society. Our task is to decipher the politics implicit in these efforts, to discern the ways that they preserve state power, neutralize resistance, and maintain social inequality.
Our further task is to respond. An effective response to repression must include an offensive component — an attack against the apparatus of repression, which (if successful) will leave the state weaker and the social movement stronger. This outcome, of course, should be the aim from the start.
But it is, in a sense, misleading to speak solely in terms of responding to repression. Repression exists already. It intervenes preemptively. It forms part of the context in which we act. Oppositional movements cannot avoid repression; the challenge, instead, must be to overcome it
Thursday, September 1, 2011
Modesto CopWatch Update: July & August 2011
Modesto CopWatch …Google us!
[http://wearealloscargrantcv.blogspot.com]
[http://youtube.com/209copwatch]
July 1 –The Modesto Bee reports that Stanislaus County sheriffs met with the family of Eric Vigen and gave them details of how he was unarmed when he was shot 55 times with semiautomatic rifles by Sgt. Ian Troxell, and officers Jonathan Box and Adam Percey, all of the California Highway Patrol. Vigen, 37, died June 18th when CHP responded to a report of a suicidal man at the Valero gas station at Crows Landing Road and West Main Street, west of Turlock. “An apology from the CHP would be really nice,” Clint Vigen, Eric’s brother said, “the CHP has had no contact with us to say, ‘We are sorry we killed your son … your brother,’ this is not about money; this is about an apology, some recognition of our loss.”
July 5–Kelly Thomas, a 37 year old homeless man with schizophrenia, was severely beaten by Fullerton police Jay Cicinelli and Manny Ramos after refusing to let them search his backpack. He died a few days later from his injuries. Kelly’s own father, a former cop, expressed that he was ashamed to be a law enforcement officer after what happened to his son.
Kelly Thomas before & after beating
July 16 –San Francisco police officers shoot and kill 19 year old Kenneth Harding after he ran from a $2 MUNI bus fare ticket check. Later police claim Harding shot himself when he tried pull a gun on police, but many witnesses maintain that he was shot down by SFPD.
SFPD stands over Kenneth Hading
July 19 –Nearly 100 community members, friends, and relatives of Ernest Duenez Jr. packed the Manteca City Council meeting and express concerns about the investigation into the shooting of Ernest by MPD officer John Moody on June 8th.
July 22 –Over 100 people marched through the streets of Stockton from the police station to the DA’s office exactly one year after Stockton cops shot and killed 16 year old James Rivera Jr.
July 27 –Almost 100 Stanislaus County Sheriffs and agents from the FBI and Immigration (ICE) raided the 7th Street Flea Market in Modesto as well as a few homes in Mo-town and Stockton, arresting 39 people for selling or possessing counterfeit CDs and DVDs, probation violations, and for being undocumented.
August 11 –Kari Abbey, the Stanislaus County sheriff who shot and killed Rita Elias in September of 2010, has her unusually low bail (for charges of 2nd degree murder, manslaughter, child endangerment, embezzlement, and conspiracy) raised from $300,000 to $1 million. With the money made by the Abbeys and Benny Taylor from being slumlords to stealing from work, from illegal marijuana growing operations to counterfeit money and steroids, Abbey was able to make the new bail and remain free.
August 14 –Almost 200 people gathered at the Lathrop Community Center to celebrate the life of Ernest Duenez Jr. The day included guest speakers, music, BBQ, and discussion on ways to fight police brutality in the central valley.
Wednesday, August 31, 2011
2011-08-31 "Federal Court Rules Videotaping Police Is A First Amendment Right" by James Cox
[http://peacefreedomprosperity.com/5618/federal-court-rules-videotaping-police-is-a-first-amendment-right]
The Federal Appeals Court has ruled that video recording the police in a public place is a constitutional right for all U.S. citizens. This is a great win for the freedom movement. Public officials need to be held accountable for their actions. See ruling below.
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
Before Torruella, Lipez, and Howard, Circuit Judges.
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 Massachusettswere 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.
August 26, 2011
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 clearly-established 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 well-pleaded 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 — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing 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 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. RodrÃguez, 506 F.3d 22, 25 (1st Cir. 2007); cf. Hunter v. Bryant, 502 U.S. 224, 227 (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 (1982); Barton v. Clancy, 632 F.3d 9, 21 (1st Cir. 2011). The qualified immunity doctrine “balances two important interests — 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 (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, 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, 131 S. Ct. 2074, 2083 (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 argue that they are entitled to qualified immunity on each of Glik’s constitutional claims and, accordingly, that the district erred in denying their motion to dismiss. Their arguments 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 (1978); see also Stanley v. Georgia, 394 U.S. 557, 564 (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.’” Houchinsv. KQED, Inc., 438 U.S. 1, 11 (1978) (quoting Branzburg v.Hayes, 408 U.S. 665, 681-82 (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 (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 (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 (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 (recognizing a core First Amendment interest in “the dissemination of information relating to alleged governmental misconduct”), but also may have a salutary effect on the functioning of government more generally, see Press-Enter. Co.v. Superior Court, 478 U.S. 1, 8 (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 othergrounds by City of Kenosha v. Bruno, 412 U.S. 507 (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, unlikeIacobucci 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 (Stewart, J., concurring) (noting that the Constitution “assure[s] the public and the press equal access once government has opened its doors”); Branzburg, 408 U.S. at 684 (“[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 (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 (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. The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech, id. at 461 (quoting Terminiello v.Chicago, 337 U.S. 1, 4 (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 have such a case in Iacobucci. What is particularly notable about Iacobucci is the 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 F. App’x 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. SeeNewman 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, MartÃnez-RodrÃguez 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, in the circumstances shown, that the suspect [had] committed, [was] committing, or [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 (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. 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. SeeCommonwealth v. Hyde, 750 N.E.2d 963, 967-68 & n.5 (Mass. 2001). 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. 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, 349 N.E.2d 337, 340 (Mass. 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. Moreover, the court has noted that “actual knowledge” does not require 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, 833 N.E.2d 1113 (Mass. 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 secretuse of such devices.” (emphasis added)). Moreover, not only doesHyde (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 flaws. The allegations of the complaint indicate that the officers were cognizant of Glik’s surveillance, 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 Hydedefendant’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) (quotingProkey 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.
III.
For the reasons set forth above, we affirm the district court’s order denying appellants’ claim of qualified immunity.
So ordered.
[http://peacefreedomprosperity.com/5618/federal-court-rules-videotaping-police-is-a-first-amendment-right]
The Federal Appeals Court has ruled that video recording the police in a public place is a constitutional right for all U.S. citizens. This is a great win for the freedom movement. Public officials need to be held accountable for their actions. See ruling below.
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
Before Torruella, Lipez, and Howard, Circuit Judges.
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 Massachusettswere 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.
August 26, 2011
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 clearly-established 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 well-pleaded 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 — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing 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 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. RodrÃguez, 506 F.3d 22, 25 (1st Cir. 2007); cf. Hunter v. Bryant, 502 U.S. 224, 227 (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 (1982); Barton v. Clancy, 632 F.3d 9, 21 (1st Cir. 2011). The qualified immunity doctrine “balances two important interests — 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 (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, 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, 131 S. Ct. 2074, 2083 (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 argue that they are entitled to qualified immunity on each of Glik’s constitutional claims and, accordingly, that the district erred in denying their motion to dismiss. Their arguments 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 (1978); see also Stanley v. Georgia, 394 U.S. 557, 564 (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.’” Houchinsv. KQED, Inc., 438 U.S. 1, 11 (1978) (quoting Branzburg v.Hayes, 408 U.S. 665, 681-82 (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 (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 (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 (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 (recognizing a core First Amendment interest in “the dissemination of information relating to alleged governmental misconduct”), but also may have a salutary effect on the functioning of government more generally, see Press-Enter. Co.v. Superior Court, 478 U.S. 1, 8 (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 othergrounds by City of Kenosha v. Bruno, 412 U.S. 507 (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, unlikeIacobucci 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 (Stewart, J., concurring) (noting that the Constitution “assure[s] the public and the press equal access once government has opened its doors”); Branzburg, 408 U.S. at 684 (“[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 (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 (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. The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech, id. at 461 (quoting Terminiello v.Chicago, 337 U.S. 1, 4 (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 have such a case in Iacobucci. What is particularly notable about Iacobucci is the 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 F. App’x 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. SeeNewman 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, MartÃnez-RodrÃguez 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, in the circumstances shown, that the suspect [had] committed, [was] committing, or [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 (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. 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. SeeCommonwealth v. Hyde, 750 N.E.2d 963, 967-68 & n.5 (Mass. 2001). 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. 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, 349 N.E.2d 337, 340 (Mass. 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. Moreover, the court has noted that “actual knowledge” does not require 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, 833 N.E.2d 1113 (Mass. 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 secretuse of such devices.” (emphasis added)). Moreover, not only doesHyde (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 flaws. The allegations of the complaint indicate that the officers were cognizant of Glik’s surveillance, 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 Hydedefendant’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) (quotingProkey 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.
III.
For the reasons set forth above, we affirm the district court’s order denying appellants’ claim of qualified immunity.
So ordered.
Subscribe to:
Posts (Atom)