Gericke v. Begin

• Decision Date: 23 May 2014
• Docket Number: No. 12–2326.,12–2326.
• Citation: 753 F.3d 1
• Parties: 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.
• Court: U.S. Court of Appeals — First Circuit

753 F.3d 1

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.

No. 12–2326.

United States Court of Appeals, First Circuit.

May 23, 2014.

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.

Before THOMPSON, SELYA and LIPEZ, Circuit Judges.

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 Amendmentretaliatory 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 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 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 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, seeN.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 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 (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, 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 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 ...