“A federal court judge Monday ruled a Massachusetts General Law prohibiting the secret audio recording of police or government officials is unconstitutional. …In the 44-page decision [Judge Patti] Saris declared that ‘secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place and manner restrictions.'” [Noah Bombard, MassLive]
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Seems to me this was a circuit court decision down in Florida a dozen or more years ago. I don’t have the decision in front of me so can’t give a citation. Guess the word is spreading.
There is also this decision out of Florida from the 11th Circuit in 2017 where a man secretly recorded public officials in a private meeting.
https://caselaw.findlaw.com/us-11th-circuit/1867669.html
Florida is a two party consent state when it comes to recording. (Except in public where there is no reasonable expectation of privacy.)
This ruling says that in Florida, public officials have no expectation of privacy when acting within their official capacity and duties..
There have been various ones finding forbidding recording is impermissible, but were not clear whether secret, as opposed to open, recording of sound could be banned under wiretapping statutes.
And yet the cops will continue to arrest (and then release) or beat people who do record them. This keeps happening in state after state.
Yep, brought to you by “Qualified” Immunity.
Police must know the law, to enforce the law, within the bounds of what the law allows.
Yet, they must not know the law in order to invoke qualified immunity.
How about this as a compromise: Invoke QI, get fired, and have lifetime ban on being in law enforcement.
Qualified immunity is not a question of the individual officer’s knowledge. It is whether the particular right was clearly established by law. I agree with most here that circumstances under which many courts have found a right to not be clearly established have too often been a ridiculous reach to avoid attaching liability for wrongful conduct. However, there are times when there is a split in authority or the issue has not remotely been addressed where an officer acting responsibly and conscientiously would not know what the law required. For example, enforcing anti-abortion laws was perfectly lawful until it suddenly–and for many attorneys and judges unexpectedly–wasn’t. Right now there is a significant split between the circuits as to whether reasonable suspicion is required for border searches of devices. Can you really expect even a well trained officer to have known what the law requires when the federal circuit opinions reflect contradictory views?
Richard,
While there may be splits in different circuit courts, in the above cited case where the 11th Circuit says that there is a right to record the police and any government official in their official capacity, doesn’t that set the law for the states covered by that Circuit? (Alabama, Florida and Georgia)
If that is the case, then shouldn’t the officers and public officials know that established law and any attempt to stop the recording of them be illegal and therefore not covered by sovereign immunity? Doesn’t the decision set up the fact that the law is established in those three states?
And the police will be granted qualified immunity because there are not previous cases on point: “Yes, we had previously ruled that hitting the person recording with your fists is violating his rights, but in this case, he kicked him in the crotch. There was never a ruling re such a situation, therefore, qualified immunity.”
Any time law enforcement violates someone’s rights, there should be no QI. After all, we hold these truths to be self evident… That means that no case on point is required. Illegal search, covered. Prior restraint? Covered. Etc…
Officers doing their jobs in an accountable, above-board manner have nothing to fear from being recorded. Most officers actually welcome it, because it keeps the person they are interacting with as honest as they are. It is the officers who do not want to be recorded that most need to be. As the conduct of the San Diego officer shows, we will all need to remain vigilant to avoid efforts to violate our fundamental rights to hold our government officials accountable.