ACLU Challenges Arrest for Use of Cell Phone to Capture Police Misconduct

ACLU says arrest was unlawful and violated First Amendment right to record.

FOR IMMEDIATE RELEASE
Monday, February 1, 2010

CONTACT:
Christopher Ott, Communications Director, 617-482-3170 x322, cott@aclum.org

BOSTON -- The American Civil Liberties Union of Massachusetts today filed a federal civil rights lawsuit on behalf of Simon Glik, an attorney arrested by Boston police officers in October 2007 after he used his cell phone to openly record their use of force against a man on Boston Common. The lawsuit, filed today in Federal District Court in Boston, seeks damages resulting from the arrest and aims to stop police officers from arresting people who openly record their activity in public places.

Police charged Glik with violating the state's wiretap statute, which prohibits secret voice recording of communications, forcing Glik to hire a criminal defense attorney. After four months, Boston Municipal Court Justice Mark Summerville threw out the criminal charges because Glik's recording of the police had not been made in secret.

"Police officers must be trained to respect the right of people to openly record their actions in public," said Howard Friedman, the Boston attorney representing Glik for the ACLU in the civil rights suit.

"Being able to observe and make a record of police actions in public places is crucial to maintaining a free society," said Sarah Wunsch, a staff attorney at the ACLU of Massachusetts who is working on the case. Wunsch noted that Judge Summerville also dismissed a charge against Glik of disturbing the peace based on the recording. Summerville emphasized that while the "officers were unhappy they were being recorded during an arrest… their discomfort does not make a lawful exercise of a First Amendment right a crime."

At the time, Glik was a recent graduate of New England School of Law who had finished a clerkship with the Probate and Family Court. He was looking for a permanent job as an attorney. Instead, for four months, he became a criminal defendant facing a felony charge.

During the incident, Glik stood about ten feet away from the officers while they were they were making the arrest. He did not interfere. Glik did not speak to the police officers nor did they speak to him until the suspect was in handcuffs. The police officers were identified later as John Cunniffe, Peter J. Savalis, and Hall-Brewster (first name unknown). They are defendants in the civil rights case along with the City of Boston, which the suit argues is responsible for not adequately training, supervising, and disciplining officers who arrest people under the wiretap statute for openly recording the police carrying out their duties in public.

The suit has broader implications. Glik's attorneys are aware of a number of cases where people have been arrested in Boston for non-secret recording the actions of police officers in public, and there are several other pending civil rights suits challenging these arrests. Photography and videography are forms of expression protected by the First Amendment.

"This is an important case about First Amendment rights to observe and record events in public, but it also touches on larger issues," said Carol Rose, executive director of the ACLU of Massachusetts. "It is troubling that ordinary citizens are increasingly required to surrender so much privacy in their personal lives to government surveillance cameras, data mining, airport searches, and warrantless monitoring of emails and phone calls. It would be even more troubling if public servants such as the police were held to a different standard in the performance of their official duties. One reason the First Amendment exists is to ensure that citizens have the ability to monitor their own government—increasingly, what we see is the exact opposite."

The case is Glik v. Cunniffe et al., Civil Action No. 10-10150.

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