The ACLU-NH has joined a federal civil rights lawsuit as counsel for Alfredo Valentin, who was wrongly arrested for criminal wiretapping simply because he used his phone to record two Manchester police officers while they were performing their official duties on the public street outside Valentin’s home and without interfering with the officers’ performance of those duties. This arrest violated Valentin’s First and Fourth Amendment rights.
As the First Circuit Court of Appeals has explained in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) and Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), a person has a clearly-established First Amendment right to both video and audio record police officers engaged in official duties in public places provided that the recording does not interfere with the officers’ performance of those duties. This First Amendment right exists regardless of whether the police officer being recorded consents to the recording and regardless of whether the recording is done openly. Following the Glik decision, in a March 22, 2012 memorandum, the New Hampshire Attorney General’s Office explained this legal principle to all law enforcement agencies in New Hampshire and explicitly warned these agencies about the consequences of ignoring it.
In arresting and charging Valentin on March 2, 2015, the Defendants blatantly violated this clearly-established legal principle. Indeed, the police reports and press release that document Defendants’ decision to arrest Valentin in this case do not dispute the fact that Valentin was simply in a public place recording law enforcement officers without interfering with their duties. Manchester ultimately dismissed this wiretapping charge on May 15, 2015. Unfortunately, by that time, Defendants’ unlawful decisions to arrest and charge Valentin had already inflicted tremendous injury on Valentin, including the loss of his career.
Shockingly, even in the face of this clearly unconstitutional arrest, the Hillsborough County Attorney’s Office then elected to further prosecute Valentin for a misdemeanor violation of the wiretap statute in an indictment issued on June 18, 2015. The Hillsborough County Attorney’s Office newly contended in the indictment that Valentin’s recording was done “while trying to hide the telephone from view.” Defendants have reasserted this “secret recording” argument as a defense in this civil rights lawsuit.
However, Valentin was never secretly recording. But even if he was, the First Amendment right to record law enforcement extends to both open and secret recordings of police officers performing their duties in public. In fact, secret recording is a key component of this First Amendment right. It is the only way that individuals who are too afraid to openly record police officers can exercise their constitutionally-protected rights, and it is a critical tool to gather accurate information about official government activity.
The Hillsborough County Superior Court (Northern Division) agreed. In an October 21, 2015 order dismissing the criminal wiretapping indictment, that Court held that “the First Amendment protects secretly filming police in public, for the reasons that the First Amendment generally protects filming police. The public has the right to gather and disseminate information about the police.”
Accordingly, Valentin sought declaratory and injunctive relief to stop the City of Manchester from illegally enforcing New Hampshire’s wiretap statute to violate the First and Fourth Amendments, as well as damages for the violation of Valentin’s constitutional rights.
On May 6, 2016, Valentin filed a motion seeking judgment against the two Manchester police officers for violating his First Amendment rights.