Boston Police Lose Federal Appeal Over Camera Phone

On February 6 2010, I posted a story about the arrest of a man on the Boston Common, after he had taken video of Boston police allegedly engaging in unnecessary use of force in arresting a man.

Simon Glick was walking along Tremont Street in Boston on October 1 2007, when he observed three uniformed Boston police officers using considerable force in arresting another man. Glick, now a practicing criminal defense attorney, was a law student at the time and suspected police brutality. His suspicions were reinforced upon hearing another observer shout “You are hurting him, stop!” at the officers. Glick video recorded the event with his cell phone. When the officers saw this they arrested him – for violating, they alleged, the Massachusetts wiretap law Mass. Gen. Laws Ch. 272, § 99. The “wiretapping statute” criminalizes the “interception of wire and oral communications” and defines “interception” as the secret recording of the contents of a communication, without the permission of all parties to the communication (emphasis added.)

Massachusetts is known as a so-called “two-party consent” state, meaning both parties to a phone conversation or an otherwise private meeting must be informed of, and consent to, audio recording of the conversation, in order for that recording to be legally permissible. It was (and is) designed to prevent someone from secretly audio taping a phone conversation, or secretly audio taping a meeting being held. To almost no surprise among Massachusetts criminal defense lawyers, the criminal prosecution against Glick was later dismissed, particularly due to the fact that there was no “secret” recording of this event.

To his credit, Glick sued the Boston Police Department for violating his civil rights. The Boston Police argued that judgment should be entered in their favor, based upon the “doctrine of qualified immunity”, which essentially provides limited immunity to police officers in certain exigent, or emergency, situations. Last week, in Glick vs. Cunniffe, et. al., the U.S. Court of Appeals for the 1st Circuit ruled against the city. As a Boston Massachusetts police brutality lawyer, I could have told the city of Boston that it was wasting its time and money with this appeal. In fact, I predicted this legal outcome in my February 6 2010 post on this story. Quoting from the decision, the court’s three-judge panel wrote “We conclude that …Glick was exercising his clearly established First Amendment rights in filming the officers in a public space, that his … Fourth Amendment rights were violated by his arrest without probable cause. We (further) conclude that Glick’s recording was not ‘secret’ within the meaning of the Massachusetts wiretap statute, and therefore the officers lacked probable cause to arrest him.”

I don’t report on subjects like this to gratuitously criticize police departments or police officers. The vast majority of police officers that I know are decent, honest people, who mean to do the best job they can. But in almost any line of work, there are always those who abuse their positions of authority. And when that happens, the reputations of the majority of honorable police officers are lessened. That doesn’t do anyone any good – not the overall police department involved, not the wider police force affected, and certainly not the public they are paid to protect and serve. As a Dedham, Massachusetts criminal defense lawyer, I think a decision like this is actually good for police departments everywhere – because it reminds them of two things: 1) They are there to protect and serve the public – not abuse their legal rights and 2) Unethical police conduct will be punished by the courts. This is as it should be in any profession, across the board.

This will almost certainly result in the City of Boston having to pay out some serious money to Glick in damages. For the city, an unfortunate example of how this kind of conduct can bring serious financial consequences.