By Rick Pfeiffer
Lockport Union-Sun & Journal, N.Y.
NEW YORK — The Second Circuit U.S. Court of Appeals has ruled that citizens living in its jurisdiction, which includes Niagara Falls , now have a “clearly established” First Amendment right to record law enforcement activity in public.
The ruling by a three-judge panel of the appeals court, whose jurisdiction covers the states of New York, New Jersey and Connecticut, means that nine of the nation’s 11 appeals courts have now found that citizens have a Constitutional right to record police activity from areas accessible to the public.
The case, Massimino v. Benoit, stems from the activity of a “self-described ‘First Amendment auditing hobbyist’” in Waterbury, Conn. Keith Massimino had been recording video of the exterior of the Waterbury Police Department for roughly six and a half minutes when he was approached by two police officers.
The video showed the exterior of the police station and its surrounding neighborhood. The appeals court noted that “at all times, Massimino remained on a public sidewalk.”
When the police officers asked Massimino what he was doing, he replied that he was “a journalist getting content for a story” and refused to answer any other questions. The officers told Massimino he was not allowed to videotape the police station and asked him for identification.
When Massimino refused to provide the officers with identification, they placed him under arrest on an obstruction charge.
The charge was later dismissed, but Massimino sued the police officers for violating his First and Fourth Amendment rights. A U.S. District Court judge ruled that Massimino “lacked a clearly established right to record the police station.”
The appeals court agreed with that conclusion, but then ruled that Massimino had a “First Amendment right to record publicly visible areas of a police station from a public sidewalk.”
“That conclusion follows from a broader First Amendment principle: the Constitution protects the right to record law enforcement activity in public,” Appeals Court Justice Myrna Perez wrote. “Our circuit has so far declined to address whether the First Amendment protects a right to record law enforcement activity in public. Eight of our sister circuits have recognized that right. Today, we join them.”
The court acknowledged that being recorded on the job “may place added strain on the challenging job of law enforcement.” But Perez, quoting from a 1966 U.S. Supreme Court decision, wrote that “the risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.”
The Second Circuit ruling did note that “the right to record law enforcement activity is not limitless.” The court wrote that “reasonable time, place and manner restrictions” could be imposed.
Although the appeals court determined there is a right to record law enforcement activity in public, it found that because the right had not been recognized when Massimino made his recording, his First Amendment rights were not violated.
It also found that his refusal to identify himself to police created a reasonable reason to detain and arrest him.
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