The U.S. Court of Appeals for the first circuit (comprising Maine, New Hampshire, Massachusetts, and Rhode Island) last week ruled that police do not have immunity against lawsuits when sued for arresting someone pointing a camera at them. Though only a procedural matter in the middle of an ongoing case, the ruling made it clear that police aren't allowed to you for videotaping them in public:
For those of you not familiar with Simon Glik's case, Glik was arrested on October 1, 2007, after openly using his cell phone to record three police officers arresting a suspect on Boston Common. In return for his efforts to record what he suspected might be police brutality -- in a pattern that is now all too familiar -- Glik was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace.
Glik filed suit in federal court against the officers and the City of Boston under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act. Glik alleged that the police officers violated his First Amendment right to record police activity in public and that the officers violated his Fourth Amendment rights by arresting him without probable cause to believe a crime had occurred.
Naturally, the police officers moved to dismiss on the basis of qualified immunity, but [the district court judge] was having none of that, denying the motion from the bench and ruling that "in the First Circuit . . . this First Amendment right publicly to record the activities of police officers on public business is established." The police officers then appealed to the First Circuit, but they have now struck out on appeal as well, with the First Circuit ruling that "Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause."
The way U.S. law works, however, this ruling doesn't quite do what you might think. First, the 1st Circuit ruled on a procedural matter, not a substantive one; so while they clearly signaled how they would rule on the matter, they haven't actually ruled yet. Second, the ruling only binds the states within the circuit. Other circuits, including the 9th (which includes nine Western states including California), have ruled similarly; but some circuits haven't pronounced on anti-camera laws yet.
That said, I'd like to quote the Court's explanation of why recording police in public places is legal (citations removed):
The filming of government officials engaged in their
duties in a public place, including police officers performing
their responsibilities, fits comfortably within these principles.
Gathering information about government officials in a form that can
readily be disseminated to others serves a cardinal First Amendment
interest in protecting and promoting "the free discussion of
governmental affairs." ...
Moreover, as the Court has noted, "[f]reedom of expression has
particular significance with respect to government because '[i]t is
here that the state has a special incentive to repress opposition
and often wields a more effective power of suppression.'" .... This is particularly true of law enforcement officials,
who are granted substantial discretion that may be misused to deprive individuals of their liberties. .... Ensuring the public's
right to gather information about their officials not only aids in
the uncovering of abuses, ...but also may have a
salutary effect on the functioning of government more generally.
I hope this interpretation gains wider acceptance in the circuits.