NH Activist’s Lawsuit over Filming Cops a Major Victory

UPDATED 6/5/2014: Just yesterday, Gericke announced the following via Facebook: “Today, thanks to the wonderful work of the The Law Offices of Martin & Hipple, PLLC, I settled my case against Weare et al, with no confidentiality restrictions, for $57,500. My heartfelt gratitude to everyone’s support over the years, and a special shout out to Seth Hipple and Stephen T. Martin. Thank you.”

According to Gericke’s lead counsel Stephen Martin ““The case will be cited for many years to come, especially because only a handful of courts have weighed in on the right to record”.

Our original article follows:

WEARE – On May 23rd, the 1st Circuit Court of Appeals ruled in favor of Carla Gericke, a Manchester, New Hampshire resident and President of the Free State Project. Gericke had sued the Weare, New Hampshire Police Department over a March 24, 2010 incident in which she video-taped police officers in the act of investigating another individual during a traffic stop.

Judge Kermit V. Lipez ruled in his 21-page decision: “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”.  Referencing Glik v. Cunniffe, a 2011 case where the same Court had upheld the right to record an arrest in a public park, the Court wrote in its opinion that “First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park.” The ruling upheld a Concord federal court decision that denied Weare police officers’ claim that they were entitled to “qualified immunity” in charging Gericke with illegal wiretapping during the 2010 traffic stop. Weare police had argued they were entitled to qualified immunity in charging Gericke with violating the state’s wiretapping law because Gericke allegedly was disruptive and interfered with a “late-night troublesome traffic stop” that involved four unknown people – at least one of whom was lawfully carrying a pistol – and multiple vehicles.

According to court documents, on the evening of March 24, 2010, former Weare, NH police sergeant Joseph Kelley (who, according to an article in the Concord Monitor, has since been fired for unspecified department violations) pulled over a motorist. Gericke stood approximately 30 feet away and attempted to record the interaction. Soon after, Officer Brandon Montplaisir, also of the Weare, NH Police Department, confronted Gericke. Montplaisir eventually arrested Gericke and the Weare Police seized her camera. For recording, she was charged with illegal wiretapping, a felony carrying prison time. All charges were subsequently dropped.

On May 9, 2010, Gericke sued the officers in the Federal District Court for the District of New Hampshire (docket number 11-CV-00231-SM) claiming that recording police is a First Amendment right and that charging her with a crime for recording violated that right.

Court documents show that the officers argued that the right to record police officers should not extend to traffic stops, which the officers argued were “inherently dangerous.” Gericke’s First Amendment claim, they argued, should therefore be dismissed under a process known as “summary judgment.” After losing this argument in the District Court, the officers appealed to the First Circuit Court of Appeals on October 29, 2012 (appellate case number CCA 12-2326).

The case now goes back to U.S. District Court in Concord for a jury trial, at which jurors will decide whether Gericke’s claim – that she complied with all police orders – was truthful or they believe Weare police officers’ assertion that she was disruptive and interfered with police work.

Attorney Charles P. Bauer, who represents the Weare Police Department and most of the officers named in the suit, stressed the case is far from over and will hinge on whom the jury believes. If a jury believes the police officers’ version that Gericke was disruptive, the qualified immunity claim could be raised again. Bauer said he will review the decision in greater detail and will consider appealing to the U.S. Supreme Court.

 “I feel vindicated and happy,” Gericke said in a press statement soon after the decision was handed down. “This was a traumatic experience for me. I had never been arrested before. It’s good to know that the courts won’t allow the police to hide from public scrutiny.”

Attorneys Seth Hipple and Stephen Martin of Martin & Hipple represented Carla Gericke in her lawsuit over arrest for filming cops
Attorneys Seth Hipple and Stephen Martin of Martin & Hipple

Rulings from the First Circuit Court of Appeals are binding precedent in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island and Gericke’s attorneys believe this case will have far-reaching effects.

“The case will be cited for many years to come, especially because only a handful of courts have weighed in on the right to record,” said Attorney Stephen Martin of the Concord firm Martin & Hipple, and lead counsel in Gericke’s case against the police officers. Attorney Martin’s co-counsel, Attorney Seth Hipple, agreed. “The only reason you know Rodney King’s name is because someone had a camera,” he said.

The case will now proceed to trial, unless a settlement is reached.