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Sunday, April 8, 2012

Digital-age reminder to police: Public has right to videotape you doing your job

If you’re in a public place and want to record police officers stopping a vehicle, making an arrest or – for that matter – just walking a beat, you have a constitutional right to do so.

That is, as long as you don’t interfere with police officers’ ability to do their jobs.

New Hampshire Attorney General Michael Delaney sent a memo March 22 to county attorneys and law enforcement agencies throughout the state reminding them that residents have the right to videotape police in such public places as city streets and parks.

“I am aware that in the recent past a number of police departments have arrested individuals for audio and or video recording police officers in public engaged in official duties,” Delaney wrote. “I want to alert all law enforcement agencies to a recent opinion of the First Circuit Court of Appeals, which makes such arrests illegal.”

Delaney cited an Aug. 25, 2011, court opinion that held that the public has the First Amendment right “to video and audio record law enforcement officers in a public place when the officers are acting in the course of their official duties, provided that the recording is done peacefully and does not interfere with the officers’ performance of their duties.”

Videotaping and recording police has been an issue locally.

In Nashua, there have been at least two cases in which someone was arrested related to the videotaping of police. Both cases predated the Aug. 25 ruling, and in each case charges were eventually tossed out.

“We certainly are aware of it and passed it along to our troops,” Nashua Police Chief John Seusing said. “We did that some time ago.”

Police brass passed the information along to officers before Delaney sent the memo, Seusing said.

The gist of that message was, “There are a lot more people with cameras, and there will be a lot more people who will videotape us,” Seusing said.

“They have a right to do that,” Seusing said he stressed to officers.

Delaney’s memo was a reminder and didn’t mean there was a new policy regarding how police react to being videotaped, Hillsborough County Attorney Dennis Hogan said.

“The case itself did have an impact,” Hogan said.

The court made the issue clear: “As long as the officer is in a public place, there is no expectation of privacy,” Hogan said. “The tapes generally show police are doing their jobs. So what’s the problem?”

At the time of the August court ruling, there were two pending cases in Hillsborough County regarding the videotaping of police. One case was in Goffstown, the other in Weare. Both cases were dropped.

Hogan meets monthly with Hillsborough County police chiefs. In one of those meetings, he advised chiefs that the public has a right to videotape police.

Nashua police officers have been advised to assume they will be videotaped when they are in public doing their job, Seusing said.

“As long as you’re doing your job correctly, it makes no difference,” Seusing advised the officers.

That hasn’t always been the position of Nashua police, however.

In 2006, Mike Gannon was arrested on felony wiretapping charges after he brought recordings to the Nashua police station to complain that a detective was rude to him during an incident at his Morgan Street home. A family member was arrested in that incident.

The case drew international attention, and police later dropped the charges.

In that case, Gannon videotaped police from cameras installed at his home, not in a public place.

The other incident also involved Gannon.

In July 2011, Pamela Reynolds and Gannon were arrested on Canal Street in the park across from Dunkin’ Donuts. The confrontation started when police in an unmarked car yelled something at Gannon, whom they knew, and Gannon responded, according to witnesses.

Gannon began videotaping the confrontation.

As police arrested Gannon, he tossed the camcorder to Reynolds, who at the least made the mistake of catching it, she said.

Police initially said she threw the camcorder into bushes in order to hide it.

Reynolds said she simply tossed it “like a hot potato” because she wanted no part of what was happening. She then was arrested.

In September, the Hillsborough County Attorney’s Office opted not to prosecute the felony falsifying evidence charge against Reynolds.

A Nashua district court judge in February acquitted Reynolds of a resisting arrest charge from the July 1 incident.

Simon Glik, the plaintiff in the August 2011 First Circuit Court of Appeals in Massachusetts case, used his cellphone digital video camera to film police officers making an arrest in the Boston Common.

Glik was arrested on multiple charges, including a violation of the Massachusetts wiretap statute. The charges ultimately were dismissed as lacking probable cause.

In his memo, Delaney summarized the case this way:

Glik sued the police department, claiming that the arrest violated his rights under the First and Fourth amendments. Police raised a defense of qualified immunity, arguing that at the time of arrest, the law did not clearly establish that Glik had a right to record the officers.

The First Circuit Court of Appeals disagreed, finding that it was well-established that “a citizen’s right to film government officials in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

The court recognized that the right to record is not unlimited and may be subject to reasonable time, place and manner restrictions. Although the court didn’t specify the types of restrictions that would be permissible, it implicitly acknowledged that a person doesn’t have a right to record in a manner that would impair or interfere with an officer’s ability to perform his or her duties.

The court also noted that the Boston Common is a prime example of a public forum where the state’s ability to limit the exercise of First Amendment activity is most restricted. The court pointed to other cases in which the right to record had been upheld, including a photographer taking photos of a car accident scene and a journalist video-recording a crime scene and filming a public official outside his home.

Patrick Meighan can be reached at 594-6518 or pmeighan@nashuatelegraph.com.