Is it unlawful to record the police during your own arrest? Can you lawfully record the police during a search of your residence? What about a bystander recording someone else’s arrest? Does it make a difference if the recording takes place in a hotel lobby, a motor vehicle or on a street corner? In State v Valentin, Docket No.: 216-2015-CR-766, Judge Gillian L. Abramson of the Superior Court of New Hampshire recently had occasion to consider a recording issue in the context of a First Amendment analysis. Here’s the story.

On March 3, 2015, Alfredo Valentin found Manchester police officers searching his residence. He recorded some of his interactions with them on his cell phone. The State contended that Valentin held the phone by his leg to conceal what he was doing. Apparently, however, it was not so secret that the police didn’t notice. The State charged Valentin with a misdemeanour wiretapping offence under Title LVIII, Public Justice, Wiretapping and Eavesdropping, RSA 570-A:2, I-a, which provides that:

“[a] person is guilty of a misdemeanour if, except as otherwise specifically provided in this chapter or without consent of all parties to the communication, the person knowingly intercepts a telecommunication or oral communication when the person is a party to the communication.”

The events began with a no-knock raid by Manchester’s SWAT team. Valentin had taken in a roommate who, unknown to him, was under investigation for heroin trafficking. When Valentin was at work, the police raided the house firing incendiary devices through the windows and seizing the security cameras. Valentin arrived home after he was called by a neighbour who had found his dog wandering the streets. He began recording his contact with the police who responded by charging him with the wiretapping offence. The police department then issued a press release falsely stating that Valentin had been arrested in connection with a heroin trafficking investigation. In fact, he was never a suspect and was never charged with a drug offence. Valentin lost his job because of the bogus press release. He sued.

As a Canadian lawyer, my initial response to reading this was to leap to the conclusion that it would be resolved in some way as a Fourth Amendment question which may be of interest under s. 8 of the Charter of Rights that protects us from unreasonable search and seizure. But Valentin argued, based on Glik v Cunniffe, 655 F.3d 78, 83 (1st Cir. 2011), that the charge had to be dismissed because it violated the First Amendment that protects a range of conduct surrounding the gathering and dissemination of information including the right of individuals to videotape police officers performing their duties in public. Judge Abramson summarized the point this way, at p. 2:

“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 government affairs’.” Glik, 655 F.3d at 82 (quoting Mills v Alabama, 384 US 214, 218 (1966): ‘Freedom of expression has particular significance with respect to government because it is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’ This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties.’ Id. (citations omitted) (quoting First Nat’l Bank v Belotti, 435 US 765, 777 n.11 (1978)).

‘In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.’ Id. at 84. ‘The same restraint demanded of police officers in the face of provocative and challenging speech, must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.’ Id. (quotation omitted).”

However, the State contended that the First Amendment did not protect Valentin because he concealed the fact that he was recording. The State argued that the US Court of Appeals for the First Circuit in Glik, “…found that, in the absence of a statutory exception, the First Amendment…does not protect an individual who intercepts public officials’ oral communications unless…the act of recording is done openly.” The State further asserted: “…[t]he decision in Glik turned on the question of the openness of the actor’s conduct, that is whether it was readily apparent to the officers whose communications were recorded that the actor was engaged in recording them. The Court determined that, because Glik’s conduct was open and obvious to the officers…his conduct was constitutionally protected.”

It is apparent that the police officers spotted the cellphone. They said Valentin held it by his leg. Valentin insisted that he held it at chest level. Irrespective of which version is accurate, the location of the phone is of little significance. Judge Abramson stated, at pp. 3-4: “The State’s representation of Glik and Gericke is manifestly incorrect. The question of ‘openness’ did not enter into the First Amendment analysis in either case. In Glik, the plaintiff brought First and Fourth Amendment claims against Massachusetts following an arrest under Massachusetts’ wiretap statute for recording police. 655 F.3d at 79. In its First Amendment analysis, the Glik court wrote, ‘[i]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.’ Id. at 82. Glik later suggests that the First Amendment does not protect filming that interferes with police duties. Id. at 84. The Court, however, explicitly declined to specify further limitations stating, ‘[t]o be sure, the right to film is not without limitations…We have no occasion to explore those limitations here, however.’ Id. at 84. Likewise, Gernicke allows for reasonable restrictions on the right to record police, but never discusses whether such recordings must be open. 753 F.3d at 8-9.”

It appears clear, then, that the issue of openness only applies in the context of a Fourth Amendment analysis. However, the State argued further that both First and Fourth Amendment issues must be tried together. They reasoned that, if a secret recording is permissible under the First Amendment, then the arrest would be a Fourth Amendment violation. Judge Abramson rejected that argument, at pp. 4-5: “If the First Amendment protects secret recordings, the State argues, there would have been no probable cause to arrest the plaintiff, and so the Court would have had no reason to decide whether the recording was secret. To the contrary, the fact that a criminal charge violates the First Amendment does not mean that the arrest underlying the charge violates the Fourth Amendment. See Michigan v DeFillippo, 443 US 31, 38 (1979) (‘The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality – with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.’). Thus, the Glik analysis about whether the recording was secret for Fourth Amendment purposes does not show that secret recordings are beyond the First Amendment’s protection…As such, absent contrary authority from the State, the Court finds that the First Amendment protects secretly filming police in public, for the same reasons that the First Amendment generally protects filming police. The public has the right to gather and disseminate information about the police. Glik, 655 F.3d at 82.”

There are aspects of the Valentin ruling that do not translate easily into the Canadian paradigm. Although the First Amendment analysis could resolve the overarching constitutional question under s. 2(b) of the Charter that protects freedom of expression and media communication, specific provisions of wiretap law, governed in Canada by Part VI of the Criminal Code, would also have to be considered. It is an indictable offence under s. 184(1) to intercept a private communication. However, by virtue of s. 184(2) it is not an offence if the originator of the private communication or the person intended to receive it consents to the interception. That exception does not apply to agents of the state who must obtain a one-party consent authorization to intercept private communications under s. 184.2(3). In Canada, Valentin may not have been charged at all, and if he was, would have had a good defence based on the participant consent exception. The New Hampshire law requires the consent of all parties to the communication whereas Canadian law only requires the consent of one party – the originator or recipient. In the arrest and search contexts, the constitutional analysis may thus have a more direct impact on the outcome where the recording is made by a person who is not the originator or recipient of the communication. (See also: R v Duarte, [1990] 1 SCR 30)

It is important to emphasize that the facts in Valentin raised an issue of passive recording. Relying on Glik, Judge Abramson described it, at p. 2, as “videotaping that memorializes, without impairing” police work in public places. There was no suggestion that Valentin’s interactions with the police interfered with the performance of their duties. In Canada, these facts would trigger consideration of s. 129 of the Criminal Code that makes it an offence to wilfully obstruct a peace officer in the execution of his or her duty. It is impossible to see how a citizen’s passive recording or videotaping of the police could be construed as obstruction. And, in the context of a Charter s. 2(b) analysis, it makes no difference that the recording is made by a bystander on a street corner, based on the rationale that recording the police in the execution of their duties enhances the public’s right to gather and disseminate information about the police and redresses the power imbalance between agents of the state and citizens armed only with cameras and provocative speech.

As for Valentin? With the dismissal of the charge based on the First Amendment, his lawsuit that focuses on other constitutional violations may proceed unburdened with the wiretapping charge. (See: Andrew Quemere. New Hampshire Police Face Million Dollar Lawsuit After Arresting Man For Recording Them. PINAC News. July 7, 2015; and, Tim Cushing. Court Tosses Bogus Wiretapping Charge Against Man Who Recorded Cops Who Raided His House. TechDirt. November 3, 2015.)