The First Circuit Videotape Opinion and House BIll 145 - Granite Grok

The First Circuit Videotape Opinion and House BIll 145

“In the Halls of Justice the only justice is in the halls.” ~Lenny Bruce 

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On one October 2007 evening, Boston attorney Simon Glik, was walking past Boston Common where Boston police officers John Cunniffe, Peter Savalis and Jerome Brewster were effecting an arrest. Hearing a nearby person state, “Stop! You’re hurting him!” Glik began video recording the incident from approximately ten feet away, using his cell phone. Shortly thereafter, Glik was arrested and his cell phone confiscated.

Charged with violation of the Massachusetts wiretap statute(Mass. Gen. Laws ch. 272, § 99(C)(1)), In February, 2008, the Boston Municipal Court summarily disposed of the wiretap charge, noting,  “the fact that the officers were unhappy they were being recorded during an arrest . . . does not make a lawful exercise of a First Amendment right a crime.” 

Glik filed a civil rights action against the officers and the City of Boston in the United States District Court for the District of Massachusetts when his internal affairs complaints were ignored. Summarily, The People’s Republik moved to dismiss Glik’s complaint asserting that his allegations failed to adequately support his claims and that officers were entitled to qualified immunity “because it is not well-settled that he had a constitutional right to record the officers.” The court denied the motion and the commonwealth’s interlocutory appeal followed in which they did not prevail.

In its opinion, the court stated, “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.’” And the court ruled “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public place is a basic, vital, and well-established liberty safeguarded by the First Amendment…”

In the wake of this opinion are the countless arrests in the Granite State for the very same activities, as detailed numerous times in the New Hampshire Union Leader.  The one incident that comes to mind is a Sheriff’s Deputy attempting to thwart Representative Gary Hopper from video-recording in the Legislative Office building back in 2010.  Finally, House Bill 145 , presently languishes in the Senate and has met with a great deal of resistance from Law Enforcement.  

Police are concerned that the bill fails to protect both their privacy and that of the public they serve. Privacy? What privacy? they are Public servants subject to the accountability to that same public they serve!

 David Cahill, Sunapee Police chief and (past) President of NH Police Chiefs Association, nevertheless, tries to make the case for opposition, with reasoning that could best be described as a total red herring. Cahill, in citing crimes of a sensitive nature and related victim confidentiality, complains HB 145 makes no exception for victims; Making it hard for victims to come forward, especially in cases of rape. Cahill asserts victims, don’t want to appear in court, talk to the newspaper because it is embarrassing and causes them problems.”  While reasonable people might agree, let’s be realistic here. such interviews rarely, if ever take place in such a public setting or environment. Besides, of all the current cases that have garnered media attention, which of those cases fall neatly into any of the scenarios the chief uses to demagogue this bill?

Then it gets even funnier. Cahill queries, “[What ] if I’m off duty and in uniform and stop at the coffee shop and I’m having a personal conversation and somebody video tapes me even though I’m off duty, how does that argue out?” It’s kind of a stupid question if one thinks long and hard enough about it. First, When going to the Bank, we are videotaped; When going to many stores, we are videotaped; when we go to our favorite chain coffee shop,many times,  we are videotaped.  There is no more privacy in that context. Second, if logic follows, would he not intervene should a crime occur in his presence, despite being off duty? This is the mere picking and choosing of context. 

Pittsfield Police Chief Robert Wharem, also the Legislative Chairman of NHACOP, (now President) cites confidentiality of juvenile and mental health issues being at stake. Chief Wharen even falsely demagogues the bill implying that HB145 opens the door on the use of sophisticated surveillance equipment use.  The confabulation, pandering and demagoguing of the Police Chief’s association is nothing new. In their advocacy of secret police state-like legislation, they steer far away from addressing the exact nature of the cases presently in the public arena and all their examples are mere subterfuge.

The present Legislature isn’t much better, though, with its Amendment requiring notice  prior  to videotaping. The Rep who proposed that amendment ought to be primaried out in the next election as such a measure merely maintains the status quo.

Senator Groen ought to rethink his bill filing. Failure to do so will be viewed as a substantive anti-liberty measure ripening Senator Groen for viable candidacy on the RINO Report.

Any measure that impedes a citizen in videotaping is about as good as the present law on the books where people are arrested for doing so.  This is really a simple, straightforward issue. The First Circuit Opinion in Glik underscores that. It is beginning to appear that Police agencies simply do not want to be held accountable to the citizens they serve and the opposition to this bill underscores that notion.

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