Court rules Free State Project president had right to film Weare police during a traffic stopBy KATHRYN MARCHOCKI
New Hampshire Union Leader
May 24. 2014 9:06PM
Individuals have a right to film police during traffic stops, the 1st Circuit Court of Appeals ruled Friday in a 2010 case filed by Free State Project President Carla Gericke against Weare police.
Even so, police may impose limits on the public's right to film when circumstances justify them, Judge Kermit V. Lipez ruled. Such situations include the need to maintain safety and control, particularly during traffic stops, which can be "especially fraught with danger to police officers."
"It was clearly established at the time of the stop that the First Amendment right to film police carrying out their duties in public, including a traffic stop, remains unfettered if no reasonable restriction is imposed or in place," Lipez wrote in his 21-page decision. The ruling upheld a Concord federal court decision that denied Weare police officers' claim that they were entitled to "qualified immunity'' in charging Gericke with illegal wiretapping during the March 24, 2010, traffic stop.
Gericke sued the town, its police department and the arresting officers, claiming her arrest was retaliatory and violated her First Amendment rights.For purposes of the appeal, the ruling relied entirely on Gericke's version of events to determine whether qualified immunity applied.
Qualified immunity provides government officials room to make "reasonable but mistaken judgments" by shielding them from liability for civil damage for actions that do not violate clearly established statutory or constitutional rights, Lipez wrote.
The case now goes back to U.S. District Court in Concord for a jury trial, at which jurors will decide whether Gericke's claim - that she complied with all police orders - was truthful or they believe Weare police officers' assertion that she was disruptive and interfered with police work.
Gericke's attorney praised the appeals court ruling.
This is significant because it makes clear again that individuals have the right to record police during traffic stops, which wasn't clear in the past. This actually sets a new precedent for the federal courts in Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico," Concord attorney Stephen T. Martin said Saturday. Martin represents Gericke, who lives in Lebanon and was stopped while driving through Weare.
Attorney Charles P. Bauer, who represents the Weare Police Department and most of the officers named in the suit, stressed the case is far from over and will hinge on whom the jury believes.
Weare police argue they were entitled to qualified immunity in charging Gericke with violating the state's wiretapping law because Gericke allegedly was disruptive and interfered with a "late-night troublesome traffic stop" that involved four unknown people - at least one of whom was armed with a pistol - and multiple vehicles.
Ruling solely on the immunity issue, Judge Lipez was required to accept Gericke's version of the facts, Bauer said.
If a jury believes the police officers' version that Gericke was disruptive, the qualified immunity claim could be raised again, Bauer added. Bauer said he will review the decision in greater detail and will consider appealing to the U.S. Supreme Court.Gericke was riding in a car behind her friend, Tyler Hanslin, when then-Sgt. Joseph Kelley pulled over Hanslin's car about 11:30 p.m. Hanslin was carrying a firearm. Gericke said she pulled her car across the street, told Kelley she was going to audio-record him and began videotaping while standing about 30 feet away. She claimed she complied with all police orders and never was asked to stop recording.