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Tuesday, September 13, 2011

Whither Glik . . . and Why?

A crack in police immunity.

The streets of America have become safer, not from criminals but from brutish police.

On August 26 the First Circuit Court of Appeals rejected a motion to dismiss a lawsuit against the Boston police for arresting a man who recorded their brutal treatment of a teenager. The ruling is only one stage of an important lawsuit but it may have sweeping consequences for two concepts that are crucial to civil liberties: police immunity and the free-speech right to record on-duty police in public. In essence, and in an unusual move, the court ruled against immunity and for freedom of speech. (Recording speech in the public realm is considered to be protected by freedom of speech.)

The federal Electronic Communications Privacy Act allows audio recordings if one party to the conversation consents. Thirty-seven states have adopted the “one consent” standard; 12 states require “all consent.” Massachusetts is one of them. (To check your state, click here.)

In recent years police departments have been plagued by a flood of embarrassing and legally explosive recordings of their officers’ savagery and disregard for the law. When posted online these recordings are a powerful restraint on police power. Thus some states have reinterpreted a law meant to prevent clandestine recording to permit the arrest of those who record the police in public, where there has traditionally been no expectation of privacy. A de facto war has erupted between some police departments and people who continue to record. Civil-rights organizations have expressed unanimous outrage at this assault on freedom of speech, police accountability, and due process.

Specifics of the Simon Glik Case

On October 1, 2007, attorney Simon Glik was arrested for recording  the “rough” treatment of a teenager on the Boston Commons and charged with disturbing the peace, felony wiretapping, and aiding the escape of a prisoner. Glik had stood peacefully to one side, and the prisoner had not escaped. The wiretapping charge resulted from the audio recording made with his cell phone.

In February 2008 all charges against Glik were dropped, whereupon he filed an internal-affairs complaint against the arresting officers. It was not pursued. In February 2010 Glik filed a civil-rights lawsuit in the federal District Court of Massachusetts against three officers and the city for violating his First and Fourth Amendment rights. The police asked to have the suit dismissed on two grounds: The police were immune from personal liability for their on-duty actions, and the free-speech aspect of the suit was not “well-settled” in law.

On the liability issue the District Court found that probable cause is required for an officer to be entitled to “qualified immunity from a Fourth Amendment claim.” “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 court said, adding, “The presence of probable cause was not even arguable here.”

On the free-speech claim the court ruled, “Glik’s exercise of his First Amendment rights fell well within the bounds of the Constitution’s protections. . . . The 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.”

Predictably, the police department appealed to the First Circuit Court where, as commentator Carol Rose explained, the court would “decide whether cops can get away with wrongfully arresting innocent passersby in order to silence anyone who documents their misconduct.”

The Court upheld the District ruling. The lawsuit can proceed.

Russian Émigré

America is lucky that Simon Glik emigrated from Russia to the “freedom” of its shores. He did not walk away on witnessing police brutality; he refused to  obey a police command (“stop recording!”) that violated his civil liberties; he is tenacious about pursuing constitutional rights.

It is not possible to predict the outcome of Glik v. Cunniffe. The court system has a marked tendency to uphold immunity and other police protections, but the findings of the District and Circuit courts are encouraging.

Glik is an important case because it is a crack in the legal immunity that many states grant police officers for their on-duty misconduct. Freedom of speech is certainly at issue here, but Glik is equally important for advancing police transparency and accountability. Without these safeguards, it is not safe for anyone to walk down a street in America . . . not because of criminals but because of the police.

  • Wendy McElroy is the author of over a dozen books on individualist feminism and libertarian history. Her upcoming book, "The Satoshi Revolution," applies the concepts of classical liberalism to cryptocurrency. She has been published by such diverse venues as Penn State to Penthouse, FEE to Marie Claire.