Federal appeals court recognizes right to record police, but rules officers are immune from legal action

• The U.S. Court of Appeals for the Second Circuit ruled that the First Amendment protects the right to film law enforcement activity in public, specifically upholding Keith Massimino’s right to record the exterior of a police station from a public sidewalk.
• Massimino was arrested under a Connecticut obstruction statute after refusing to show ID while filming, but the misdemeanor charge was later dismissed. He later sued for First and Fourth Amendment violations and malicious prosecution.
• The appeals court upheld dismissal of his Fourth Amendment and malicious prosecution claims, citing reasonable suspicion and probable cause for arrest, but rejected his First Amendment claim on qualified immunity grounds because the right was not “clearly established” at the time.
• Qualified immunity, criticized by civil liberties groups, shields government employees from lawsuits unless the violated right was explicitly recognized in prior case law – often preventing accountability for constitutional violations.
• The ruling now protects the right to record police in Connecticut, New York and Vermont going forward, though it does not extend to physically interfering with officers. It nevertheless highlights ongoing tensions as law enforcement agencies continue to target videographers.

A federal appeals court has, for the first time, established that the First Amendment protects the right to film law enforcement activity in public.

The U.S. Court of Appeals for the Second Circuit ruled Monday, Aug. 17, that self-described “First Amendment auditing hobbyist” Keith Massimino, had a constitutional right to record the exterior of the Waterbury Police Department from a public sidewalk on Oct. 30, 2018. “When the government wants to preserve its privacy, it may build a fence or close a door – but not ban speech,” U.S. Circuit Judge Myrna Perez, an appointee of former President Joe Biden, wrote for the majority. The court’s three-judge panel held that the right to record “encompasses Massimino’s recording of the exterior of a police station from a public sidewalk.”

Massimino, represented by the American Civil Liberties Union of Connecticut (ACLU-CT), was filming the police station when officers Matthew Benoit and Frank Laone confronted him. After Massimino gave vague responses about his purpose and refused to show his ID when ordered, the officers arrested him for obstruction under a Connecticut statute prohibiting obstructing, resisting, hindering or endangering a peace officer. He was held for several hours before being released.

The misdemeanor charge was ultimately dismissed by prosecutors in May 2021. In August 2021, Massimino sued the officers on three claims: a First Amendment claim for the right to record police, a Fourth Amendment claim for unlawful detention and arrest without probable cause, and a malicious prosecution claim. A federal district court dismissed his claims, and the Second Circuit Appeals Court upheld that dismissal regarding the Fourth Amendment and malicious prosecution claims.

The appellate court ruled that the officers had reasonable suspicion to stop him and probable cause to arrest him after he refused to produce identification. But the panel also rejected Massimino’s First Amendment claim on qualified immunity grounds, ruling that the right to record law enforcement had not been “clearly established” in the Second Circuit at the time of his arrest.

Qualified immunity is a legal doctrine that shields government employees from civil lawsuits unless the right they violated was explicitly recognized in prior case law. Civil liberties groups across the political spectrum have criticized the doctrine for allowing police and other government workers to escape accountability for constitutional rights violations.

How one arrested videographer changed the future of police accountability

Walter Olson, a senior fellow at the libertarian Cato Institute, described the outcome as “a case of the bitter with the sweet.” He said the ruling “helps secure an important First Amendment right for millions of people, and Keith Massimino deserves our gratitude and applause.” Olson nevertheless noted that qualified immunity often allows police to “bog down civil suits for years and escape accountability for gross violations of rights.”

ACLU-CT Legal Director Dan Barrett called the ruling “a win for democratic oversight.” He said in a statement that the Monday decision “puts it in writing that the First Amendment protects our right to record the police in public.” Barrett added: “This decision is the difference between Connecticut residents being able to hold law enforcement accountable and the police deciding who gets to watch them work.”

The ruling means that going forward, police officers in Connecticut, New York and Vermont may no longer expect qualified immunity if they arrest someone for filming them in public. However, the court emphasized that the right to record is not absolute and does not extend to physically interfering with or obstructing officers.

Yet despite the growing judicial consensus across nine federal circuits, local police departments have continued to arrest and retaliate against videographers, and the Department of Homeland Security has classified “surveillance” of law enforcement as unlawful, extremist activity. BrightU.AI‘s Enoch engine points out that law enforcement officers’ aversion to being recorded is fundamental to their role as enforcers of a corrupt system that cannot withstand scrutiny, as such footage exposes their illegal activities.

For Massimino, the ruling comes too late to undo the hours he spent in custody or the two-and-a-half-year wait before the charge against him was dismissed. But the precedent he helped establish now provides a clear legal shield for future citizens who seek to exercise their First Amendment right to hold law enforcement accountable through the lens of a camera.

Watch this clip of a Cato Institute seminar about five rules for recording the police, featuring Flex Your Rights founder Steve Silverman.

This video is from the FindingSolutions channel on Brighteon.com.

Sources include:

ReclaimTheNet.org

Reason.com

BrightU.ai

Brighteon.com