Federal First Circuit Court of Appeals:
LIPEZ, Circuit Judge. This case raises an important question about an individual’s First Amendment right to film a traffic stop by a police officer. Carla Gericke attempted to film Sergeant Joseph Kelley as he was conducting a late-night traffic stop. Shortly thereafter, she was arrested and charged with several crimes, including a violation of New Hampshire’s wiretapping statute. Gericke was not brought to trial. She subsequently sued the Town of Weare, its police department, and the officers who arrested and charged her, alleging in pertinent part that the wiretapping charge constituted retaliatory prosecution in violation of her First Amendment rights.
In this interlocutory appeal, the defendant-appellant police officers challenge the district court’s order denying them qualified immunity on Gericke’s First Amendment retaliatory prosecution claim. Based on Gericke’s version of the facts, we conclude that she was exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area. We therefore affirm.
On March 24, 2010, at 11:30 PM in Weare, New Hampshire, Ms. Gericke attempted to videotape a traffic stop of another car, which was being driven by friends of hers. She was arrested and charged with obstruction of a police officer and unlawful interception of oral communications. The town prosecutor refused to proceed on the charges and forwarded the matter to the Hillsboro County Prosecutor who also refused to prosecute. Subsequently, Ms. Gericke filed a lawsuit against the individual police officers, the Weare Police Department, and the Town of Weare for violation of her civil rights under 42 USC §1983 for filing criminal charges against her in retaliation for exercising her Constitutional rights.
The ruling is based up Ms. Gericke’s version of the facts. It means that when the case goes to trial the officers will not be entitled to qualified immunity, and if Ms. Gericke’s version of the facts are established the defendants will be liable to her for violation of her Constitutional rights.
Somebody needs to tell cops to stop wasting their time and their town’s money trying to stop people from peaceably recording them as they go about their duties. Absent special circumstances justifying more invasive police action, and so long as no one is interfering with or obstructing them they should “get over it” and stop reacting every time they see someone with a video camera.
The cops are already making their own recording of almost every traffic stop and nobody is complaining.