Filed: May 23, 2014
Latest Update: Mar. 02, 2020
Summary: wait for Hanslin.some of whom, according to Kelley, were confrontational.activity of police officers. Glik, 655 F.3d at 81.Hill, 482 U.S. at 461).13, Of course, a trial might leave a fact-finder with a, different view of whether Sergeant Kelley ordered Gericke to leave, the area or stop filming.
United States Court of Appeals
For the First Circuit
No. 12-2326
CARLA GERICKE,
Plaintiff, Appellee,
v.
GREGORY C. BEGIN, WEARE POLICE CHIEF, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITIES; JAMES J. CARNEY, LIEUTENANT, WEARE POLICE
DEPARTMENT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; JOSEPH
KELLEY, SERGEANT, WEARE POLICE DEPARTMENT, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITIES; BRANDON MONTPLAISIR, POLICE OFFICER, WEARE
POLICE DEPARTMENT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES,
Defendants, Appellants,
WEARE POLICE DEPARTMENT, TOWN OF WEARE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Thompson, Selya and Lipez,
Circuit Judges.
Charles P. Bauer, with whom Robert J. Dietel, Gallagher,
Callahan & Gartrell, P.C., Corey M. Belobrow, and Maggiotto &
Belobrow, PLLC were on brief, for appellants.
Seth J. Hipple, with whom Stephen T. Martin and The Law
Offices of Martin & Hipple, PLLC were on brief, for appellee.
May 23, 2014
-2-
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.
I.
We have interlocutory appellate jurisdiction over a
denial of summary judgment on qualified immunity grounds only if
the material facts are undisputed and the issue on appeal is one of
law. Mlodzinski v. Lewis, 648 F.3d 24, 27 (1st Cir. 2011). As the
-3-
officers acknowledge, we must accept and analyze Gericke's version
of the facts. See Campos v. Van Ness, 711 F.3d 243, 245 (1st Cir.
2013). We offer for context, only where it is uncontested,
Sergeant Kelley's account of events.
On March 24, 2010, at approximately 11:30 p.m. in Weare,
Gericke and Tyler Hanslin were caravaning in two cars to Hanslin's
house. Gericke was following Hanslin because she had never been to
his house. Gericke had a passenger in her car, as did Hanslin.
On South Stark Highway, Sergeant Kelley pulled his police
car behind Gericke's vehicle and activated his emergency lights.
Believing that Kelley was pulling her over, Gericke stopped her car
on the side of the highway. Hanslin likewise stopped his car in
front of Gericke's. Kelley parked his own vehicle between
Hanslin's and Gericke's cars. Kelley approached Gericke's car,
informed her that it was Hanslin who was being detained, and told
her to move her car. Gericke informed Kelley that she was going to
pull her car into the adjacent Weare Middle School parking lot to
wait for Hanslin. According to Gericke's deposition, Kelley
"eventually said that's fine."
As Gericke was moving her car, Kelley approached
Hanslin's vehicle. According to Kelley, when he asked Hanslin if
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he had any weapons, Hanslin disclosed that he was carrying a
firearm. Kelley instructed Hanslin to exit the car.1
Once Gericke parked in the lot, she got out of her car
and approached a fence that, along with a grassy area, separated
the lot from the road. Gericke was at least thirty feet from
Kelley. Gericke announced to Kelley that she was going to audio-
video record him. She pointed a video camera at Kelley and
attempted to film him as he was interacting with Hanslin.
Unbeknownst to Kelley, Gericke's camera, despite her
attempts, would not record.2 Kelley ordered Gericke to return to
her car, and she immediately complied. From her car, she continued
to point her camera at Kelley even though she knew the camera was
not recording. Significantly, under Gericke's account, Kelley
never asked her to stop recording, and, once she pulled into the
parking lot, he did not order her to leave the area.
Gericke stopped holding up the camera on her own accord
and placed it in the center console of her car. Officer Brandon
Montplaisir then arrived on the scene. Montplaisir approached
1
Gericke states that Hanslin was properly licensed to possess
and carry a pistol, and she asserts that at no point did Sergeant
Kelley draw his own weapon.
2
The parties do not treat as relevant the fact that Gericke
attempted, but was unable, to record Kelley due to a problem with
her video camera. We agree that Gericke's First Amendment right
does not depend on whether her attempt to videotape was frustrated
by a technical malfunction. There is no dispute that she took out
the camera in order to record the traffic stop.
-5-
Gericke while she was in her car and demanded to know where her
camera was, but she refused to tell him. He asked for her license
and registration. When Gericke did not comply, Montplaisir
arrested her for disobeying a police order. Lieutenant James
Carney then arrived on the scene, as did several civilians in a
car.3 Gericke was transported to the Weare police station, where
the police filed criminal complaints against her for disobeying a
police officer, see N.H. Rev. Stat. Ann. § 265:4; obstructing a
government official, see id. § 642:1; and, the charge relevant here
-- unlawful interception of oral communications, see id § 570-A:2.4
Gericke's camera was also seized.5
A criminal probable cause hearing was scheduled for May
25, 2010. On the day of that hearing, the town prosecutor declined
3
In her deposition, Gericke stated that she thought there
were three people in the additional civilian car that arrived. She
stated that she knew several of the occupants of the car, who she
thinks arrived to "take a look and make sure everyone [was] safe."
4
For the purpose of this interlocutory appeal, the parties do
not make an issue of the identity of the officer(s) who charged
Gericke with illegal wiretapping. Therefore, without specificity,
we simply refer to the "police" or the "officers" in describing
those who charged Gericke with illegal wiretapping.
5
On November 2, 2010, the police obtained a warrant to search
the contents of Gericke's video camera. According to the
government, during the search of the video camera, digital video
files were discovered but could not be opened. The camera was sent
to the New Hampshire State Laboratory, which apparently encountered
the same difficulty. Gericke subsequently filed a motion in state
court seeking return of her video camera. The motion was granted,
and her camera was returned after the government's motion for
reconsideration was denied.
-6-
to proceed on the pending charges, including the charge for
unlawful interception of oral communications. The prosecutor sent
the matter to the Hillsborough County Attorney, who also did not
move forward with the charges.6
In May 2011, Gericke brought this action under 42 U.S.C.
§ 1983 and state law against the defendant police officers, the
Weare Police Department, and the Town of Weare. In her amended
complaint, she alleged, inter alia, that the officers violated her
First Amendment rights when they charged her with illegal
wiretapping in retaliation for her videotaping of the traffic stop.
In May 2012, the officers filed motions for summary judgment,
arguing in pertinent part that they were entitled to qualified
immunity on Gericke's First Amendment claim because there was no
clearly established right to film the traffic stop.
In a thoughtful opinion, the district court ruled that
the police lacked probable cause to believe that Gericke had
committed illegal wiretapping because "that statute provides that,
for a crime to occur, the victim of an intercepted oral
communication must have had a reasonable expectation 'that such
communication is not subject to interception under circumstances
justifying such expectation.' [N.H. Rev. Stat. Ann. §] 570-A:1,
II." Gericke v. Begin, No. 11-cv-231-SM, 2012 WL 4893218, at *6
6
The officers do not attempt to explain why the prosecution
did not proceed, and neither party points to any explanation in the
record.
-7-
(D.N.H. Oct. 15, 2012). Here, the district court reasoned, "the
officers had no reasonable expectation that their public
communications during the traffic stop were not subject to
interception." Id.
The district court denied the officers' motions seeking
qualified immunity on the First Amendment retaliation claim
stemming from the illegal wiretapping charge, ruling that
development of the facts was necessary before it could determine
whether the officers were entitled to qualified immunity. Relying
on our decision in Glik v. Cunniffe,
655 F.3d 78 (1st Cir. 2011),
the district court stated that, under the "broad holding" there, "a
reasonable officer should have known that a blanket prohibition on
the recording of all traffic stops, no matter the circumstances,
was not constitutionally permissible." Gericke,
2012 WL 4893218,
at *7 n.4. The court noted that "the circumstances faced by the
officers in this case were substantially different than those faced
by the officers in Glik."
Id. at *7. Whereas Glik filmed an
arrest on the Boston Common, the district court recognized that
here the officers faced a potentially dangerous late-night traffic
stop involving a firearm, multiple vehicles, and multiple citizens,
some of whom, according to Kelley, were confrontational.
However, the district court reasoned that Glik
"recognized that it is clearly established in this circuit that
police officers cannot, consistently with the Constitution,
-8-
prosecute citizens for violating wiretapping laws when they
peacefully record a police officer performing his or her official
duties in a public area." Id. at *6. By extension, the district
court concluded that there was not a clearly established First
Amendment right to record in a disruptive manner the public
activity of police officers. Because the court held that there was
a genuine factual dispute about whether Gericke had been
disruptive, the court denied the officers' motions for summary
judgment on the retaliatory prosecution claim stemming from the
wiretapping charge.
The officers filed this timely interlocutory appeal. If
the district court was correct that the qualified immunity question
depends on the resolution of disputed issues of fact about whether
Gericke had been disruptive, we would refuse to hear this
interlocutory appeal. See Mlodzinski, 648 F.3d at 27-28. However,
since the officers "accept [Gericke's] version in order to test the
immunity issue," we, in turn, accept interlocutory jurisdiction to
decide the question on Gericke's "best case," which portrays
compliance with all police orders. See
id. at 28
The issue before us is whether it was clearly established
that Gericke was exercising a First Amendment right when she
attempted to film Sergeant Kelley during the traffic stop. If she
was not exercising a First Amendment right, or, on her facts, a
reasonable officer could have concluded that she was not, then the
-9-
officers are entitled to qualified immunity. Our review is limited
to the denial of summary judgment on qualified immunity grounds,
Boyle v. Burke, 925 F.2d 497, 499 (1st Cir. 1991), which we review
de novo,
Mlodzinski, 648 F.3d at 32.
II.
Qualified immunity provides government officials with
"breathing room to make reasonable but mistaken judgments" by
shielding officials from liability for civil damages for actions
that do not violate clearly established statutory or constitutional
rights of which a reasonable person would have known. Stanton v.
Sims, 134 S. Ct. 3, 4-5 (2013) (internal quotation mark omitted).
We apply a two-prong test in determining whether a defendant is
entitled to qualified immunity.
Glik, 655 F.3d at 81. We ask "(1)
whether the facts alleged or shown by the plaintiff make out a
violation of a constitutional right; and (2) if so, whether the
right was clearly established at the time of the defendant's
alleged violation."
Id. (internal quotation marks omitted).
Whether the right was clearly established depends on "(1)
the clarity of the law at the time of the alleged . . . violation,
and (2) whether, given the facts of the particular case, a
reasonable defendant would have understood that his conduct
violated the plaintiff['s] constitutional rights." Id.
(alternation in original) (internal quotation marks omitted). The
law may be clearly established even if there is no "case directly
-10-
on point," but "existing precedent must have placed the statutory
or constitutional question beyond debate." Stanton, 134 S. Ct. at
5 (internal quotation marks omitted). Our task is to determine
"whether the state of the law at the time of the alleged violation
gave the defendant fair warning that his particular conduct was
unconstitutional."
Glik, 655 F.3d at 81 (internal quotation mark
omitted); see also Macdonald v. Town of Eastham,
745 F.3d 8, 12
(1st Cir. 2014).
On appeal, the officers argue both that there was no
First Amendment right to film law enforcement officers during the
late-night traffic stop, when Hanslin had a gun and Kelley faced
two cars and four individuals, and that, even if such a right
existed, it was not clearly established at the time of the traffic
stop in this case.
III.
A. Retaliatory Prosecution for First Amendment Activity
Gericke claims that her First Amendment rights were
violated because the officers, by filing the charge of illegal
wiretapping, retaliated against her for her attempt to film the
public traffic stop. It is well established that claims of
retaliation for the exercise of First Amendment rights are
cognizable under section 1983. Powell v. Alexander, 391 F.3d 1, 16
(1st Cir. 2004) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle,
429 U.S. 274 (1977)). In a section 1983 claim of
-11-
retaliatory prosecution for First Amendment activity, a plaintiff
must prove that her conduct was constitutionally protected and was
a "'substantial'" or "'motivating'" factor for the retaliatory
decision, Powell, 391 F.3d at 17 (quoting Mt.
Healthy, 429 U.S. at
287), and that there was no probable cause for the criminal charge,
Hartman v. Moore,
547 U.S. 250, 265-66 (2006).7 Retaliation is
always reprehensible, and, regardless of whether the underlying
activity is constitutionally protected, it is obviously improper
for officers to invoke criminal laws for retaliatory purposes.
However, the plaintiff's activity must be constitutionally
protected in order to bring a section 1983 claim of First Amendment
retaliation.8
7
In holding that the plaintiff must plead and prove an
absence of probable cause for a retaliatory prosecution claim, the
Supreme Court observed that "[i]t may be dishonorable to act with
an unconstitutional motive and perhaps in some instances be
unlawful, but action colored by some degree of bad motive does not
amount to a constitutional tort if that action would have been
taken anyway." Hartman, 547 U.S. at 260. The Court reasoned that
evidence regarding probable cause "will always be a distinct body
of highly valuable circumstantial evidence available and apt to
prove or disprove retaliatory causation."
Id. at 261. On this
interlocutory appeal, the officers have not challenged the district
court's probable cause ruling. Therefore, we treat the lack of
probable cause as a given for the purpose of this appeal.
8
Even if the activity is not constitutionally protected, a
state law claim, such as malicious prosecution, might lie if the
elements of such a claim are met. Gericke in fact also brought
such a malicious prosecution claim, which is not before us on this
interlocutory appeal, and the district court ruled that the claim
survived the officers' motions for summary judgment.
-12-
If Gericke was exercising a clearly established First
Amendment right, then it is in turn clearly established that the
police could not retaliate for such activity by charging her with
illegal wiretapping without probable cause. Therefore, to
determine whether Gericke has a colorable section 1983 claim, we
must analyze (1) whether Gericke was exercising a constitutionally
protected right to film the police during the traffic stop, and (2)
whether that right was clearly established at the time of the stop.
B. Was Gericke Exercising a First Amendment Right to Film the
Traffic Stop?
In Glik, the plaintiff filmed several police officers
arresting a young man on the Boston Common. Glik, 655 F.3d at 79.
Recognizing that it is firmly established that the First Amendment
protects "a range of conduct" surrounding the gathering and
dissemination of information, we held that the Constitution
protects the right of individuals to videotape police officers
performing their duties in public.
Id. at 82. Gericke attempted
to videotape Sergeant Kelley during the traffic stop of Hanslin.
Thus, the threshold question here is whether the occasion of a
traffic stop places Gericke's attempted filming outside the
constitutionally protected right to film police that we discussed
in Glik. It does not.
In Glik, we explained that gathering information about
government officials in a form that can be readily disseminated
"serves a cardinal First Amendment interest in protecting and
-13-
promoting 'the free discussion of governmental affairs.'" Glik,
655 F.3d at 82 (quoting Mills v. Alabama,
384 U.S. 214, 218
(1966)). Protecting that right of information gathering "not only
aids in the uncovering of abuses, but also may have a salutary
effect on the functioning of government more generally."
Id. at
82-83 (citations omitted). Those First Amendment principles apply
equally to the filming of a traffic stop and the filming of an
arrest in a public park. In both instances, the subject of filming
is "police carrying out their duties in public."
Id. at 82. A
traffic stop, no matter the additional circumstances, is
inescapably a police duty carried out in public. Hence, a traffic
stop does not extinguish an individual's right to film.
This is not to say, however, that an individual's
exercise of the right to film a traffic stop cannot be limited.
Indeed, Glik remarked that "a traffic stop is worlds apart from an
arrest on the Boston Common in the circumstances alleged." Glik,
655 F.3d at 85. That observation reflected the Supreme Court's
acknowledgment in Fourth Amendment cases that traffic stops may be
"'especially fraught with danger to police officers'" and thus
justify more invasive police action than would be permitted in
other settings. Arizona v. Johnson,
555 U.S. 323, 330 (2009)
(quoting Michigan v. Long,
463 U.S. 1032, 1047 (1983)).9
9
In a traffic stop, for example, officers may insist that
passengers exit the vehicle without even a reasonable suspicion
that they were engaged in wrongdoing. Maryland v. Wilson, 519 U.S.
-14-
Reasonable restrictions on the exercise of the right to film may be
imposed when the circumstances justify them. See Glik, 655 F.3d at
84 (the exercise of the right to film may be subject to reasonable
time, place, and manner restrictions); ACLU of Ill. v. Alvarez,
679
F.3d 583, 607 (7th Cir. 2012) (reasonable orders to maintain safety
and control, which have incidental effects on an individual's
exercise of the First Amendment right to record, may be
permissible).
The circumstances of some traffic stops, particularly
when the detained individual is armed, might justify a safety
measure -- for example, a command that bystanders disperse -- that
would incidentally impact an individual's exercise of the First
Amendment right to film. Such an order, even when directed at a
person who is filming, may be appropriate for legitimate safety
reasons. However, a police order that is specifically directed at
the First Amendment right to film police performing their duties in
public may be constitutionally imposed only if the officer can
reasonably conclude that the filming itself is interfering, or is
about to interfere, with his duties. Glik's admonition that, "[i]n
our society, police officers are expected to endure significant
408, 413-15 (1997). A police officer may also request identifying
information from passengers in a traffic stop without
particularized suspicion that they pose a safety risk or are
violating the law, "[s]o long as the request [does] not 'measurably
extend the duration of the stop.'" United States v. Fernandez, 600
F.3d 56, 57, 62 (1st Cir. 2010) (quoting
Johnson, 555 U.S. at 333).
-15-
burdens caused by citizens' exercise of their First Amendment
rights" will bear upon the reasonableness of any order directed at
the First Amendment right to film, whether that order is given
during a traffic stop or in some other public setting. Glik, 655
F.3d at 84 (citing City of Houston v. Hill,
482 U.S. 451, 461
(1987)). We have made clear that "[t]he 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."
Glik, 655 F.3d at 84 (citations omitted) (quoting
Hill, 482 U.S. at 461).
Importantly, an individual's exercise of her First
Amendment right to film police activity carried out in public,
including a traffic stop, necessarily remains unfettered unless and
until a reasonable restriction is imposed or in place. This
conclusion follows inescapably from the nature of the First
Amendment right, which does not contemplate self-censorship by the
person exercising the right. See generally Baggett v. Bullitt, 377
U.S. 360, 372 n.10 (1964) ("[T]he conduct proscribed must be
defined specifically so that the person or persons affected remain
secure and unrestrained in their rights to engage in activities not
encompassed by the [restriction]." (internal quotation mark
omitted)); Herndon v. Lowry, 301 U.S. 242, 259 (1937) ("The
appellant had a constitutional right to address meetings and
-16-
organize parties unless in so doing he violated some prohibition of
a valid statute."); Dean v. Byerley, 354 F.3d 540, 551 (6th Cir.
2004) ("Although the government may restrict the [First Amendment]
right [to use streets for assembly and communication] through
appropriate regulations, that right remains unfettered unless and
until the government passes such regulations."). Such a
restriction could take the form of a reasonable, contemporaneous
order from a police officer, or a preexisting statute, ordinance,
regulation, or other published restriction with a legitimate
governmental purpose.
Under Gericke's version of the facts, no such restriction
was imposed or in place.10 According to Gericke, she immediately
complied with all police orders: she returned to her car with her
camera when Sergeant Kelley asked her to do so, he never ordered
her to stop filming, and once she pulled into the parking lot, he
never asked her to leave the scene. Therefore, under Gericke's
version of the facts, her right to film remained unfettered, and a
jury could supportably find that the officers violated her First
Amendment right by filing the wiretapping charge without probable
cause in retaliation for her attempted filming.
10
We do not consider whether the wiretapping statute amounted
to a reasonable time, place, and manner restriction because the
officers have not in any way challenged on appeal the district
court's ruling that there was no probable cause for the wiretapping
charge.
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C. Was the Right to Film The Traffic Stop Clearly Established?
In Glik, we held that, "though not unqualified, a
citizen's right to film government officials, including law
enforcement officers, in the discharge of their duties in a public
space" was clearly established by the time of the underlying events
in the case. Glik, 655 F.3d at 85. Our observation that the right
to film is not unqualified recognized that the right can be limited
by reasonable time, place, and manner restrictions.
Id. at 84.
Gericke's attempt to film Sergeant Kelley during the traffic stop
was unmistakably an attempt to film a law enforcement officer in
the discharge of his duties in a public space. Therefore, as the
events in Glik occurred well over two years before the events here,
Gericke's right to film the traffic stop was clearly established
unless it was reasonably restricted.
Under Gericke's account, no order to leave the area or
stop filming was given. Hence, we need not analyze whether a
reasonable officer could have believed that the circumstances
surrounding this traffic stop allowed him to give such an order.
That hypothetical scenario involving a possible restriction on the
right to film is irrelevant to this interlocutory appeal. In the
absence of a reasonable restriction, it is self-evident, based on
first principles, that Gericke's First Amendment right to film
-18-
police carrying out their duties in public remained unfettered.11
Under Gericke's account, she was permissibly at the site of the
police encounter with Hanslin. It would be nonsensical to expect
Gericke to refrain from filming when such filming was neither
unlawful nor the subject of an officer's order to stop. In the
absence of such restrictions, a reasonable police officer
necessarily would have understood that Gericke was exercising a
clearly established First Amendment right.
As we explained above, claims of retaliation for the
exercise of clearly established First Amendment rights are
cognizable under section 1983. See Powell, 391 F.3d at 16. Thus,
under Gericke's version of the facts, any reasonable officer would
have understood that charging Gericke with illegal wiretapping for
attempted filming that had not been limited by any order or law
violated her First Amendment right to film.12 "'[T]he contours of
[the] right [were] sufficiently clear' that every 'reasonable
11
In Glik, we recognized that "some constitutional violations
are 'self-evident' and do not require particularized case law to
substantiate them." Glik, 655 F.3d at 85 (citing Lee v. Gregory,
363 F.3d 931, 936 (9th Cir. 2004)). We specifically observed that
the "terseness" of our acknowledgment of a journalist's First
Amendment right to film officials in Iacobucci v. Boulter,
193 F.3d
14 (1st Cir. 1999), "implicitly speaks to the fundamental and
virtually self-evident nature of the First Amendment's protections
in this area."
Glik, 655 F.3d at 84-85.
12
As we explained in note 10, supra, the officers do not
challenge the finding of the district court that there was no
probable cause to believe that Gericke had violated the wiretapping
statute.
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official would have understood that what he [was] doing violate[d]
that right.'" Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)
(quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). Hence,
at this stage of the litigation, the officers are not entitled to
qualified immunity.13
IV.
Under Gericke's version of the facts, where there was no
police order to stop filming or leave the area, a jury could
supportably find that the officers violated her First Amendment
right by filing the wiretapping charge against her because of her
attempted filming of Sergeant Kelley during the traffic stop. 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. Accordingly, we hold that the
district court properly denied qualified immunity to the officers
on Gericke's section 1983 claim that the wiretapping charge
13
Of course, a trial might leave a fact-finder with a
different view of whether Sergeant Kelley ordered Gericke to leave
the area or stop filming. That view, in turn, might affect the
court's analysis of the availability of qualified immunity to the
officers. See Swain v. Spinney, 117 F.3d 1, 10 (1st Cir. 1997)
("We recognize that the immunity question should be resolved, where
possible, in advance of trial. However, disposition of the
question on summary judgment is not always possible. . . . There
are . . . factual issues, potentially turning on credibility, that
must be resolved by the trier of fact. Only after the resolution
of these conflicts may the trial court apply the relevant law on
objective reasonableness." (citation omitted)).
-20-
constituted retaliatory prosecution in violation of the First
Amendment.
Affirmed.
-21-
