What if you pulled out your cell phone to record video or audio of officers making a arrest, are you "secretly" recording? No seems like a common sense answer, but not according to the Boston Police Department. Appeals were heard on Wednesday in the United States First Circuit Court of Appeals. The city denied that the man they arrested had his First or Fourth Amendment rights violated, according to Ars Technica.
In 2007, Simon Glik witnessed the arrest of another man and pulled out his cell phone to record the account. A police officer approached Glik, and Glik said he was recording the encounter because the suspect had been punched by another officer. Glik was subsequently arrested. Many states have "one-party notification" laws that allow any party that is privy to the conversation to conduct "secret recordings". In Massachusetts, however, all parties must consent. The police arrested Glik for breaking this law. In addition, he was charged with "aiding the escape of a prisoner" and "disturbing the peace".
Glik was bailed out. All charges were dropped or dismissed. The Massachusetts ACLU helped him file charges of false arrest. He argued that the officers should have known his recording was not secret, due to the phone being in plain sight. He also said that officers violated his First Amendment right to record the actions of government officials. He has also sued the city for failing to properly train its officers.
The Federal District Court denied the motion to dismiss the case, and the ruling was appealed on Wednesday. The judges made their decision based on a 2001 case where a traffic stop was recorded secretly. In that case, the court said simply placing the recorder in plain view would have sufficed to make the recording legal.