Free State Project Leader Wins Victory Against Cops Trying to Punish Filming Them

[Keith and stuff]

Free State Project Leader Wins Victory Against Cops Trying to Punish Filming Them
Brian Doherty|May. 23, 2014 8:17 pm
http://reason.com/blog/2014/05/23/free-state-project-leader-wins-victory-a

This story just broke. It was literally published 15 minutes ago so I'm not going to copy and paste much of it here.


Good news from Carla Gericke, current president of the Free State Project (http://freestateproject.org/) (which encourages libertarians to move to New Hampshire and help turn it into a more libertarian land).

http://d3uu04du0cb2p3.cloudfront.net/sites/default/files/styles/medium/public/content_type_images/blogs/fsp_girls.jpg

Gericke had been arrested in 2010 by Sgt. Joseph Kelley of the Weare, New Hampshire, police department, for, among other charges, allegedly violating the state's wiretapping statues by attempting to film his actions after he'd pulled over a friend Gericke was driving behind. (The camera she aimed at him wasn't actually working.)

Gericke never went to trial, as the city declined to go ahead with the prosecution. But Gericke went ahead and sued the officer, the department, and city, claiming that the wiretapping charge, as today's decision from the U.S. Court of Appeals for the 1st Circuit said, "constituted retaliatory prosecution in violation of her First Amendment rights."

More of the story here. http://reason.com/blog/2014/05/23/free-state-project-leader-wins-victory-a
If you want to read the 20+ page U.S. Court of Appeals for the 1st Circuit ruling, have at it. http://media.ca1.uscourts.gov/pdf.opinions/12-2326P-01A.pdf

[Keith and stuff]

Here is another version from Free Keene. Free Keene likely won't mind if I just copy and paste the post :)

FSP President Wins Federal Case Against Weare Police!
by Ian | May 23, 2014
http://freekeene.com/2014/05/23/fsp-president-wins-federal-case-against-weare-police/


After multiple court decisions favoring Keene liberty activists, the wins just keep coming [win http://freekeene.com/2013/03/06/burke-rules-no-trespass-orders-unconstitutional-case-dismissed/ , win http://freekeene.com/2013/12/04/breaking-news-robin-hood-cases-dismissed/, win http://freekeene.com/2013/09/08/another-victory-for-atty-jon-meyer/ ], now with the US Court of Appeals (1st Circuit) ruling in favor of Free State Project president Carla Gericke in her case against multiple Weare police officers, the Weare PD, and the Town of Weare.

The case dates back to 2010 where Carla was arrested for recording a traffic stop in Weare (home of notoriously corrupt police who have arrested other activists for the same). Police dropped the charges against Carla before trial, which included a “wiretapping” charge. Carla, with the help of liberty attorney Seth Hipple, sued in federal district court. Her suit alleged the Weare police violated her rights, particularly those ostensibly protected by the 1st amendment to the US constitution. Weare PD motioned the district court for “summary judgement” based on claimed “qualified immunity” protecting the officers from liability. The district court denied them qualified immunity, so Weare’s attorneys filed an “interlocutory appeal” to challenge the district court’s decision.

Oh, and guess who is Weare’s attorney in this case? None other than Charles P. Bauer, the very same Charles Bauer who cashed in (and continues to cash in) on the City of Keene’s failed lawsuits against Robin Hood of Keene.

The 1st Circuit US Court of Appeals is the same court from which the Glik decision emanated. Glik is cited multiple times in the 21-page Gericke decision as evidence that the right to record government workers, especially police, is protected by the 1st amendment. The court’s decision makes it clear that the officers do not have “qualified immunity” because they, were they acting as reasonable officers, should have recognized Carla’s right to record the scene.

The appeals court ruled in Carla’s favor and now the case goes back to federal district court to proceed ahead in civil court, with the officers not protected from liability by “qualified immunity”, a protective shield typically given to bureaucrats supposedly to protect them from personal liability from mistaken decisions. Unless the case is settled by the town of Weare or PD, it will proceed. Stay tuned for the latest.

[Anti Federalist]

Heh heh heh...good news...I needed some.

[francisco]

Heh heh heh...good news...I needed some.

Amen.

[Henry Rogue]

Got to love those FSPers

[Cleaner44]

We should drop a link to her fine attorney Seth Hipple!

Law Offices of Martin & Hipple, P.L.L.C.
22 Bridge Street, Second Floor, Suite 3,
Concord, NH 03301
Phone: 603-856-0202 | Toll Free: 877-645-2909 | Fax: 603-546-7456
http://nhlegalservices.com/

This little link will help the SEO for Seth Hipple and his firm. Well deserved!

[Keith and stuff]

We should drop a link to her fine attorney Seth Hipple!

Law Offices of Martin & Hipple, P.L.L.C.
22 Bridge Street, Second Floor, Suite 3,
Concord, NH 03301
Phone: 603-856-0202 | Toll Free: 877-645-2909 | Fax: 603-546-7456
http://nhlegalservices.com/

This little link will help the SEO for Seth Hipple and his firm. Well deserved!
Good idea. Here is the Facebook page, if people want to like it.
https://www.facebook.com/Martin.Hipple

[ProIndividual]

I wish I could be really excited about this, but I just can't. I am really happy it is going "our" way, for sure. I congratulate the effort. I also encourage more of it. But in the end, if we think the statist court system is going to do anything except make cases like this go our way a vast minority of the time, I would say we're being delusional. We got lucky with the judge who presided and what not...but that's a low probability event. The system isn't designed (and can't be designed) to go our way the majority of the time. Even if the SCOTUS took this up and it went our way, how many other decisions do not in that same time period? We're fighting a losing battle overall (which is not to say we shouldn't resist this way). Every time we take a step forward, they have shoved us 3 steps back. We're chiseling away at the state, while work crews are adding not just bricks to the wall, but building whole skyscrapers of tyranny.

As Star Trek's Borg once put it "resistance is futile". That doesn't mean we shouldn't do it (I like making the Borg's job harder, even if we are doomed to a failed state eventually).

[muh_roads]

Who is that cutie in the middle? She makes muh pp grow.

[Keith and stuff]

May 24. 2014 9:06PM
Court rules Free State Project president had right to film Weare police during a traffic stop
By KATHRYN MARCHOCKI
New Hampshire Union Leader
http://www.unionleader.com/article/20140525/NEWS07/140529379

The first half of the article.

Individuals have a right to film police during traffic stops, the 1st Circuit Court of Appeals ruled Friday in a 2010 case filed by Free State Project President Carla Gericke against Weare police.

Even so, police may impose limits on the public's right to film when circumstances justify them, Judge Kermit V. Lipez ruled. Such situations include the need to maintain safety and control, particularly during traffic stops, which can be "especially fraught with danger to police officers."

"It was clearly established at the time of the stop that the First Amendment right to film police carrying out their duties in public, including a traffic stop, remains unfettered if no reasonable restriction is imposed or in place," Lipez wrote in his 21-page decision. The ruling upheld a Concord federal court decision that denied Weare police officers' claim that they were entitled to "qualified immunity'' in charging Gericke with illegal wiretapping during the March 24, 2010, traffic stop.

Gericke sued the town, its police department and the arresting officers, claiming her arrest was retaliatory and violated her First Amendment rights.For purposes of the appeal, the ruling relied entirely on Gericke's version of events to determine whether qualified immunity applied.

Qualified immunity provides government officials room to make "reasonable but mistaken judgments" by shielding them from liability for civil damage for actions that do not violate clearly established statutory or constitutional rights, Lipez wrote.

The case now goes back to U.S. District Court in Concord for a jury trial, at which jurors will decide whether Gericke's claim - that she complied with all police orders - was truthful or they believe Weare police officers' assertion that she was disruptive and interfered with police work.

Continue reading.
http://www.unionleader.com/article/20140525/NEWS07/140529379

[Keith and stuff]

A Constitutional Law Professor at South Texas College of Law commented on this case. He breaks down the case throughout his post.

May 26, 2014
First Circuit Finds First Amendment Right To Record Police Clearly Established
http://joshblackman.com/blog/2014/05/26/first-circuit-finds-first-amendment-right-to-record-police-clearly-established/


Congratulations are in order to my good friend, and law school classmate Seth Hipple for successfully arguing Gericke v. Begin (1st Cir. May 24, 2014). (Disclosure: I provided comments on their appellate brief, and helped moot Seth before oral arguments). This case, which Seth and his law partner Stephen Martin filed back in 2011, involved whether there was a clearly established constitutional right to record the police during a traffic stop. The First Circuit had previously found that there was a right to record the police during an incident at Boston Common, but this case clarified that the right extends to an even more potentially hazardous situation during a traffic stop. In short, the facts here were quite messy, and involved a nighttime traffic stop where one of the people pulled over had a firearm. And even here, the court found that plaintiff Carla Gericke’s First Amendment rights were violated after she was arrested (but not prosecuted) for recording the traffic stop. This is a significant case, as it makes clear that the police do not have unfettered power to retaliate and punish citizens who seek to shine sunlight on their official conduct in public.


The court’s core holding is that this First Amendment right does not stop at a traffic stop.

In Glik, we explained that gathering information about government officials in a form that can be readily disseminated “serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’” Glik, 655 F.3d at 82 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Protecting that right of information gathering “not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.” Id. at 82-83 (citations omitted). Those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is “police carrying out their duties in public.” Id. at 82. A traffic stop, no matter the additional circumstances, is inescapably a police duty carried out in public. Hence, a traffic stop does not extinguish an individual’s right to film.


Though, much of the court’s opinion focused on how this holding would be limited. In preparation, I knew this would be the toughest aspect of the opinion. I was pleasantly surprised that the court drew the free speech line where it did, without being unduly deferential to the never-ending concerns about officer-safety.

Continue http://joshblackman.com/blog/2014/05/26/first-circuit-finds-first-amendment-right-to-record-police-clearly-established/

[Keith and stuff]

Court upholds “First Amendment” right to film police
Ruling is one of many nationwide supporting right to record police.
by David Kravets - May 28 2014, 12:43pm EST
http://arstechnica.com/tech-policy/2014/05/court-upholds-first-amendment-right-to-film-police/

There are lots of comments on this article. Already 84 comments and it was just recently posted. Most of the comments are very positive :)


A federal appeals court has ruled that the public has the right to film cops in public and has reinstated a lawsuit against a local New Hampshire police department brought by a woman arrested for filming a traffic stop.

The plaintiff in the case, Carla Gericke, was arrested on wiretapping allegations in 2010 for filming her friend being pulled over by the Weare Police Department during a late-night traffic stop. Although Gericke was never brought to trial, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.

The decision is but one in a string of decisions that are slowly sticking the needle into laws nationwide barring the recording of police as they perform their duties. But some states, like Massachusetts, outlaw the secret audio recording of police. A woman accused of secretly turning on the audio recording feature of her mobile phone while she was being arrested was charged with wiretapping two weeks ago in Massachusetts.

Massachusetts wiretapping law prohibits secretly recording police.
In the latest decision, the First US Circuit Court of Appeals ruled that Gericke "was exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area." The decision allows her lawsuit against the department to proceed.

The woman was following a friend to his house when an officer pulled him over. From about 30 feet away, after getting out of her car, she announced she was going to audio-record the stop, according to the record. Ironically, her video camera malfunctioned, and she was unable to capture anything. She returned to her car, according to the opinion.

In a footnote, the court noted Friday that the malfunction was irrelevant: "We agree that Gericke's First Amendment right does not depend on whether her attempt to videotape was frustrated by a technical malfunction. There is no dispute that she took out the camera in order to record the traffic stop."

Continue reading. http://arstechnica.com/tech-policy/2014/05/court-upholds-first-amendment-right-to-film-police/

[Keith and stuff]

Court upholds “First Amendment” right to film police
Ruling is one of many nationwide supporting right to record police.
by David Kravets - May 28 2014, 12:43pm EST
http://arstechnica.com/tech-policy/2014/05/court-upholds-first-amendment-right-to-film-police/

There are lots of comments on this article. Already 84 comments and it was just recently posted. Most of the comments are very positive :)

Continue reading. http://arstechnica.com/tech-policy/2014/05/court-upholds-first-amendment-right-to-film-police/

Woah, this made the front page of reddit. That means 10s of 1000s of additional eyes on the story.

2316 upvotes

Court upholds “First Amendment” right to film police
(arstechnica.com)

submitted 9 hours ago by bpadair31 to /r/news

Click here to read the 200+ comments. Or, if you have a reddit account, join in the fun ;)
http://www.reddit.com/r/news/comments/26pljo/court_upholds_first_amendment_right_to_film_police/

There are even 11 duplicate stories on reddit already :)
http://www.reddit.com/r/news/duplicates/26pljo/court_upholds_first_amendment_right_to_film_police/

[FriedChicken]

Who is that cutie in the middle? She makes muh pp grow.

You should put an disclaimer on drunken posts, just to give us the heads up.

:) Thanks in advance.

[Keith and stuff]

Boston media covered this. Example. http://www.wcvb.com/news/court-new-hampshire-woman-has-right-to-film-cops/26174370#!S5jaD

There was coverage in Vermont. http://www.reformer.com/morelocalnews/ci_25837467/court-new-hampshire-woman-has-right-film-police

RT, the Raw Story and WND all covered it, also.
http://rt.com/usa/162272-police-film-appeals-court/
http://www.rawstory.com/rs/2014/05/29/appeals-court-rules-first-amendment-protects-cell-phone-video-of-cops-on-duty/
http://www.wnd.com/2014/05/court-upholds-1st-amendment-right-to-film-cops

Reason did another post on it.
Another Blow Against Cops Who Think They Have a Right Not to Be Recorded
Jacob Sullum|May. 29, 2014 2:38 pm
http://reason.com/blog/2014/05/29/another-blow-against-cops-who-think-they

Here are some highlights.


Three years ago, in Glik v. Cunniffe, the U.S. Court of Appeals for the 1st Circuit upheld a man's First Amendment right to record an arrest on Boston Common. Last week, in Gericke v. Weare, the court upheld a woman's First Amendment right to record a traffic stop in Weare, New Hampshire. The combination of these two decisions is a powerful rebuke to cops who continue to harass people with bogus wiretapping charges when they dare to capture images or sound of police encounters on their cellphones.


New Hampshire's wiretap statute, unlike the Massachusetts law, applies only to situations in which the people who are recorded have a reasonable expectation of privacy. The 1st Circuit noted that police officers performing their duties in public have no such expectation, especially when the person recording them announces her intention to do so. Furthermore, because of a technical glitch, Gericke did not actually capture any video of her friend's detention. These facts help explain why local prosecutors ended up dropping the charges against Gericke. The cops who arrested her were so keen to punish her perceived disrespect that they not only violated her constitutional rights; they misapplied the statute.


What's especially significant about both of these cases is that they allowed lawsuits against the police officers themselves to proceed. The court decided that the officers did not qualify for immunity because the rights they violated were clearly established at the time of the arrests. Cops who continue to mistakenly believe they have a right not to be recorded while on duty should understand that they cannot hide behind their real or professed ignorance of what the Constitution requires.

[Keith and stuff]

This continues to receive coverage in and out of New Hampshire.

Here is the coverage from a small New Hampshire paper.
https://fbcdn-sphotos-g-a.akamaihd.net/hphotos-ak-xaf1/t31.0-8/10428183_10152430282956163_1282809099457410826_o.j pg


Here is Hufpost coverage from a few hours ago.
Filming Police in Public Places: A Risky First Amendment Activity for Citizen Journalists
Posted: 06/03/2014 12:32 pm EDT Updated: 4 hours ago
http://www.huffingtonpost.com/clay-calvert/filming-police-in-public-_b_5424621.html

I'm not even sure where this source is based. Las Vegas maybe?
Americans Have the Right to Film Police
http://guardianlv.com/2014/05/americans-have-the-right-to-film-police/

[Keith and stuff]

Still more coverage today. I'm surprised by the amount of coverage the story has gotten so far.

NH Activist’s Lawsuit a Major Victory for Free Speech
Wednesday, June 04, 2014
http://www.shirelibertynews.com/nh-activists-lawsuit-a-major-victory-for-free-speech/

The first three paragraphs.


WEARE – On May 23rd, the 1st Circuit Court of Appeals ruled in favor of Carla Gericke, a Manchester, New Hampshire resident and President of the Free State Project. Gericke had sued the Weare, New Hampshire Police Department over a March 24, 2010 incident in which she video-taped police officers in the act of investigating another individual during a traffic stop.

Judge Kermit V. Lipez ruled in his 21-page decision: “It was clearly established at the time of the stop that the First Amendment right to film police carrying out their duties in public, including a traffic stop, remains unfettered if no reasonable restriction is imposed or in place”. Referencing Glik v. Cunniffe, a 2011 case where the same Court had upheld the right to record an arrest in a public park, the Court wrote in its opinion that “First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park.” The ruling upheld a Concord federal court decision that denied Weare police officers’ claim that they were entitled to “qualified immunity” in charging Gericke with illegal wiretapping during the 2010 traffic stop. Weare police had argued they were entitled to qualified immunity in charging Gericke with violating the state’s wiretapping law because Gericke allegedly was disruptive and interfered with a “late-night troublesome traffic stop” that involved four unknown people – at least one of whom was lawfully carrying a pistol – and multiple vehicles.

According to court documents, on the evening of March 24, 2010, former Weare, NH police sergeant Joseph Kelley (who, according to an article in the Concord Monitor, has since been fired for unspecified department violations) pulled over a motorist. Gericke stood approximately 30 feet away and attempted to record the interaction. Soon after, Officer Brandon Montplaisir, also of the Weare, NH Police Department, confronted Gericke. Montplaisir eventually arrested Gericke and the Weare Police seized her camera. For recording, she was charged with illegal wiretapping, a felony carrying prison time. All charges were subsequently dropped.

[Keith and stuff]

The Boston Globe editorialized in favor of this today.

Editorial
The public’s right to know
June 05, 2014
http://www.bostonglobe.com/opinion/editorials/2014/06/05/the-public-right-know/PDI6e9VayknOgFxKhr0tBM/story.html

About half of it is posted below.

Given the rash of canceled commencement speeches, it has been a tough season for free speech advocates. So a recent federal appeals court ruling that reaffirmed a First Amendment right to record a police traffic stop is reason to cheer.

The case goes back to the night of March 24, 2010, when Carla Gericke of Lebanon, N.H., was following an acquaintance in another car. A Weare police officer drove up behind them with lights flashing. When the officer started questioning the other driver, Gericke pointed a video camera at him. She was subsequently charged with violating New Hampshire’s wiretapping law, among other offenses.

Gericke was not prosecuted, but she sued the Town of Weare, its police department, and the arresting officers. She argued that police retaliated against her for exercising her First Amendment rights. The officers said they were entitled to immunity because there was no clearly established right to record the traffic stop.