Glik v. Cunniffe, 655 F.3d 78

Glik filmed police officers on Boston Common during an arrest using his cell phone audio/video; he was restrained and later charged with Massachusetts wiretap violations and two state offenses.
The district court denied qualified immunity to the officers; it held Glik’s First Amendment right to record public officials in public was clearly established.
Glik’s district court ruling addressed whether filming public officials could be a protected First Amendment activity and whether the arrest violated the Fourth Amendment’s probable cause standard.
Glik sued under 42 U.S.C. § 1983 alleging violations of the First and Fourth Amendments, plus Massachusetts Civil Rights Act and malicious prosecution.
On interlocutory appeal, the First Circuit reviews de novo the qualified-immunity determination, focusing on (1) whether a constitutional right was violated and (2) whether it was clearly established at the time.
The court ultimately affirmed the district court’s denial of qualified immunity, finding a clearly established First Amendment right to film public officials and a Fourth Amendment violation due to lack of probable cause.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Glik have a First Amendment right to videotape police in public?	Glik asserts a clearly established First Amendment right to record public police activity.	Officers contend no clearly established right to film in the circumstances.	Yes; right to film public officials was clearly established.
Was Glik's First Amendment right to film clearly established at the time of arrest?	Iacobucci-like precedents show clear establishment.	Reliance on later or unpublished opinions to deny clarity.	Yes; filming in public was clearly established at the time.
Did Glik's arrest violate the Fourth Amendment due to lack of probable cause?	Recording openly in plain view cannot be a clandestine interception; thus no probable cause.	Massachusetts wiretap law supports probable cause under the statute.	Yes; arrest lacked probable cause under the wiretap statute.
Was the absence of probable cause clearly established for Fourth Amendment purposes?	Officers knew Glik was recording openly, so probable cause could not exist.	Arrest probable cause could be arguable under Fourth Amendment standards.	Yes; absence of probable cause was clearly established.

Iacobucci v. Boulter, 193 F.3d 14 (1st Cir.1999) (First Amendment right to film public officials established)
Maldonado v. Fontanes, 568 F.3d 263 (1st Cir.2009) (two-prong qualified immunity analysis)
Pearson v. Callahan, 555 U.S. 223 (U.S.2009) (two-prong analysis and clearly established inquiry)
Ashcroft v. al-Kidd, 131 S. Ct. 2074 (U.S.2011) (clearly established right need not be case-directly-on-point)
Harlow v. Fitzgerald, 457 U.S. 800 (U.S.1982) (qualified immunity framework for public officials)
Iacobucci v. Boulter, 193 F.3d 14 (1st Cir.1999) (First Amendment right to film public officials established)
Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir.2010) (context-specific limitations on right to film)
Smith v. City of Cumming, 212 F.3d 1332 (11th Cir.2000) (right to gather information about public officials on public property)