The Associated Press reports that police in Chicopee, Mass., have arrested and charged a woman for allegedly recording her arrest with her cellphone surreptitiously.
When you see one of these stories, please remember that it is perfectly legal to record on-duty police in every state in the country. That includes states that require all parties to a conversation to consent in order for that conversation to be recorded. Those laws all also contain a provision that the non-consenting party has a reasonable expectation of privacy. So far, every court to rule on this issue has found that on-duty cops in public spaces have no expectation of privacy and that recording them is protected by the First Amendment. (The U.S. Supreme Court has yet to weigh in on the matter.) In nearly all cases, the charges are eventually dismissed. (The exception may be if you’re arrested under some broad, catch-all law such as “interfering with a police officer” or disorderly conduct. But even those charges don’t usually stick.)
But Massachusetts is the one state where the right is still just a little bit ambiguous. At one time, some of the state’s courts did allow for citizens to be arrested for recording cops under the state’s wiretapping law (which, again, required all parties to consent before a conversation could be recorded). Illinois also once had an even more onerous law, but it was struck down by the U.S. Court of Appeals for the Seventh Circuit in 2012 on First Amendment grounds.
In 2011, the U.S. Court of Appeals for the First Circuit issued a similar decision. The court allowed Simon Glik’s lawsuit against the police officers who arrested him for recording them to go forward, again finding a First Amendment right to record on-duty law enforcement. But in that case, Glik was recording the officers openly. The court’s ruling applied only to that case, leaving open the possibility that someone could still be arrested for making a surreptitious recording of an on-duty cop. And that’s what happened in this latest case.
If this case gets to the First Circuit, I suspect this charge will also be thrown out. It’s notable that the Glik decision didn’t even deal with whether there is a legal right to record police in Massachusetts. It dealt with whether cops who illegally arrest someone for recording them should be protected by qualified immunity. In order to get into court against a police officer, you have to demonstrate not only that the officer violated your constitutional rights, but also that the rights violated were well established at the time. (Perversely, this provides a financial incentive for police organizations to keep cops in the dark about the latest court decisions with respect to constitutional rights.)
So while the First Circuit ruling in Glik didn’t apply to surreptitious recording of police officers, it did find that not only is the right to record on-duty police permitted, it’s a well-established right that police should be aware of by now, and that if they violate that right, they can be sued for doing so. It seems unlikely that the same court will then turn around and uphold a separate arrest simply because the woman didn’t tell the police she was recording them.
If I lived in Chicopee, however, I’d wonder why this woman was charged for allegedly recording her arrest in the first place. Prosecutors have lots of discretion about when to charge someone and about what charges to bring. They are under no obligation to charge every person who breaks every law — it would be impossible for them to do so. And there’s certainly no obligation to latch on to the narrowness of a court decision that otherwise indicated a First Amendment right to record police as an opportunity to charge someone for doing just that, simply because she might fall slightly outside the scope of that particular ruling. Just because the courts haven’t yet ruled that police and prosecutors can’t do something doesn’t mean it’s something they should do.
So if I lived in Chicopee, I’d want to know why Hampden County District Attorney Mark G. Mastroianni charged this woman. Does he believe it should be illegal to record the police? And if so, why?