Second Circuit Rules First Amendment Protects Recording Police in Public on August 20

The U.S. Second Circuit Court of Appeals has ruled that the First Amendment protects people’s right to record police activity in public spaces. In Massimino v. Benoit, decided August 17, the court held that recording law enforcement from a public area is constitutionally protected speech. The ruling aligns the Second Circuit with eight other federal appeals courts on the issue, though the plaintiff cannot recover damages because his right was not clearly established when he was arrested in 2018.

What the court decided

The Second Circuit ruled that citizens have a First Amendment right to record publicly visible police activity while standing in public areas. Keith Massimino was arrested on October 30, 2018, for filming the exterior of the Waterbury, Connecticut police station from a public sidewalk. Sergeants Matthew Benoit and Frank Laone detained him, citing security concerns. The court found that recording itself is protected speech, whether the person intends to share it later or livestream it in real time.

Why this matters beyond journalism

The court emphasized that this right belongs to everyone, not just accredited journalists. The National Press Photographers Association noted that Massimino identified himself as a “First Amendment auditing hobbyist,” yet the court still recognized his constitutional protection. The opinion states that recording can express views about the subject or about constitutional protections themselves.

The qualified immunity problem

Although the Second Circuit recognized the constitutional right, Massimino cannot recover damages from the officers. The court ruled that his right was not clearly established in 2018 when he was arrested. Qualified immunity protects officers from liability if the law was not clearly established at the time of their actions. The charges against Massimino were dropped, but he received no compensation for his detention.

Where the Second Circuit stands now

The Second Circuit hears federal appeals from New York, Connecticut, and Vermont. The panel stated it was “joining a growing chorus” of eight other federal circuits that have already recognized the right to record police in public. This ruling sets binding precedent for the three-state region and signals broader judicial consensus on First Amendment protections for citizen recording.

Final Thoughts

The Second Circuit’s ruling affirms a constitutional right to record police in public spaces, but qualified immunity limits remedies for past violations. Citizens in New York, Connecticut, and Vermont now have clear legal protection for recording law enforcement activity from public areas.

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