Gericke v. Begin, 2014 U.S. App. LEXIS 9623

Gericke filmed a late-night traffic stop by Sgt. Kelley; her camera did not record, and Kelley ordered her to return to her car.
Gericke complied, did not leave, and Kelley did not order her to stop filming or leave the area according to her account.
Gericke was arrested for disobeying a police order and charged with illegal wiretapping, obstructing an official, among other counts; camera seized.
Prosecutors later declined to proceed with the wiretapping charge; the Hillsborough County Attorney also did not pursue the charge.
Gericke sued under 42 U.S.C. § 1983 and state law, alleging retaliation and First Amendment violations; district court denied qualified immunity on the retaliatory prosecution claim.
The First Circuit held, based on Gericke’s version of events, that she clearly exercised a First Amendment right to film the public police activity, and that right was clearly established, so qualified immunity was not warranted at this stage.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gericke’s filming was a protected First Amendment activity.	Gericke; not stated.	Kelley/ Officers; filming may be restricted if interferes.	Yes; filming a police public duty is protected.
Whether the right to film the traffic stop was clearly established at the time.	Glik established right to film; applicable here.	Not clearly established due to stop’s dangerous context.	Yes, it was clearly established.
Whether retaliatory prosecution requires lack of probable cause given First Amendment activity.	Retaliation claim stands if First Amendment rights were exercised.	Need to show lack of probable cause; disputed.	Probable cause need not be established for this interlocutory exposure; focus is on right and immunity.
Whether any police order restricted Gericke’s right to film.	No order to stop filming or leave.	Order could restrict if interference with duties.	Under Gericke’s version, no restriction; right remained unfettered.
Whether the district court properly denied qualified immunity on retaliation claim.	Right to film was clearly established; retaliation violated rights.	Rights not clearly established given circumstances.	No qualified immunity; district court’s denial affirmed.

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (right to film police in public is protected; can be subject to reasonable restrictions)
Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004) (retaliation claims under §1983 require protected conduct and motive)
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (U.S. 1977) (factors for causation in retaliation analyses)
Hartman v. Moore, 547 U.S. 250 (U.S. 2006) (probable cause relevance in retaliatory prosecution)
Ashcroft v. al-Kidd, 131 S. Ct. 2074 (U.S. 2011) (clearly established right can be determined by existing precedent)
Anderson v. Creighton, 483 U.S. 635 (U.S. 1987) (objective reasonableness standard for qualified immunity)