United States Court of Appeals
For the First Circuit
No. 10-1764SIMON GLIK,Plaintiff, Appellee,v.JOHN CUNNIFFE, in his individual capacity; PETER J. SAVALIS, inhis individual capacity; JEROME HALL-BREWSTER, in his individualcapacity; CITY OF BOSTON,Defendants, Appellants.APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS[Hon. William G. Young, U.S. District Judge]BeforeTorruella, Lipez, and Howard,Circuit Judges.Ian D. Prior, Assistant Corporation Counsel, City of BostonLaw Department, with whom William F. Sinnott, Corporation Counsel,and Lisa Skehill Maki, Assistant Corporation Counsel, were onbrief, for appellants.David Milton, with whom Howard Friedman, Law Offices of HowardFriedman, P.C., Sarah Wunsch, and ACLU of Massachusetts were onbrief, for appellee.Anjana Samant and Center for Constitutional Rights on brieffor 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 usinghis cell phone's digital video camera to film several policeofficers arresting a young man on the Boston Common. The chargesagainst Glik, which included violation of Massachusetts's wiretapstatute and two other state-law offenses, were subsequently judgedbaseless and were dismissed. Glik then brought this suit under 42U.S.C. § 1983, claiming that his arrest for filming the officersconstituted a violation of his rights under the First and FourthAmendments.In this interlocutory appeal, the defendant policeofficers challenge an order of the district court denying themqualified 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 apublic space, and that his clearly-established Fourth Amendmentrights were violated by his arrest without probable cause. Wetherefore affirm.
I.
We recite the pertinent facts based upon the allegationsof the complaint, Asociación de Subscripción Conjunta del Seguro deResponsabilidad Obligatorio v. Flores Galarza, 484 F.3d 1, 6 (1stCir. 2007), "accepting all well-pleaded facts in the complaint astrue," Sanchez v. Pereira-Castillo, 590 F.3d 31, 36, 52 n.15 (1stCir. 2009).-2-
As he was walking past the Boston Common on the eveningof October 1, 2007, Simon Glik caught sight of three policeofficers -- the individual defendants here -- arresting a youngman. Glik heard another bystander say something to the effect of,"You are hurting him, stop." Concerned that the officers wereemploying excessive force to effect the arrest, Glik stoppedroughly ten feet away and began recording video footage of thearrest on his cell phone.After placing the suspect in handcuffs, one of theofficers turned to Glik and said, "I think you have taken enoughpictures." Glik replied, "I am recording this. I saw you punchhim." An officer then approached Glik and asked if Glik's cell
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phone recorded audio. When Glik affirmed that he was recordingaudio, the officer placed him in handcuffs, arresting him for,inter alia, unlawful audio recording in violation ofMassachusetts's wiretap statute. Glik was taken to the SouthBoston police station. In the course of booking, the policeconfiscated Glik's cell phone and a computer flash drive and heldthem as evidence.Glik was eventually charged with violation of the wiretapstatute, 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.It is not clear from the complaint whether this was the same
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officer who initially addressed Glik.-3-
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Court Opinion of Recording Police in Public
This should clear up the right to capture video of police in public view
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