First Circuit: First Amendment Right to Film Traffic Stops

On May 23, 2014, the First Circuit U.S. Court of Appeals denied an appeal filed by the Weare, New Hampshire, police department and several of its officers challenging a district court ruling that the police defendants did not have qualified immunity in a lawsuit filed by a citizen who claimed she was falsely arrested for filming a traffic stop.

On March 24, 2010, at approximately 11:30 p.m., Carla Gericke was caravanning in two cars to her friend Tyler Hanslin's house. When Hanslin was pulled over by Sergeant Kelley of the Weare Police Department (WPD), Gericke parked in a nearby parking lot, got out of her car, and began filming the traffic stop with her video camera. Sergeant Kelley ordered Gericke to return to her car and she complied, but continued pointing the camera at Kelley from inside her car. Unbeknownst to anyone at the time, Gericke's camera malfunctioned and did not work.

Another officer arrived at the scene and approached Gericke's car. He demanded to know where the camera was and Gericke would not tell him. When Gericke further refused the officer demanded her license and registration and she was arrested and charged with disobeying a police order, obstructing a government official, and unlawful interception of oral communications. The prosecutor, and the county attorney, both declined to pursue charges against Gericke.

In May 2011, Gericke filed suit under 42 U.S.C. § 1983 against the police officers, the WPD, and the town of Weare, alleging that her First Amendment rights were violated when police charged her with illegal wiretapping "in retaliation for her videotaping the traffic stop."

The defendants asserted a defense of qualified immunity, alleging there was no "clearly established right to film the traffic stop." The district court held that the police lacked probable cause to believe Gericke had committed illegal wiretapping because for a crime such as that to occur, the officers must have had a reasonable expectation that their communications were not subject to interception under the circumstances. The district court ruled that the officers' "public communications" during the traffic stop were subject to interception, and thus no crime was committed.

The defendants filed an interlocutory appeal with the First Circuit, which upheld the district court's ruling.

Under Gericke's version of the facts, the police never ordered her to stop filming and there were no exigent circumstances which would have caused her filming to interfere with police duties, the First Circuit held. The fact that Gericke's camera malfunctioned did not affect the Court's analysis.

"According to Gericke, she immediately complied with all police orders: she returned to her car with her camera when Sergeant Kelley ordered her to do so, he never ordered her to stop filming, and once she pulled into the parking lot, he never asked her to leave the scene. Therefore, her right to film remained unfettered, and a jury could supportably find that the officers violated her First Amendment right by filing the wiretapping charge without probable cause in retaliation for her attempted filming," wrote the Court.

The Court concluded that such a right was clearly established at the time of Gericke's arrest; thus the WPD, the town of Weare, nor the police officers were entitled to qualified immunity. See: Gericke v. Begin, 753 F.3d 1 (1st Cir. N.H. 2014).

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