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    United States Court of Appeals,First Circuit. GLIK v. CUNNIFFE Simon GLIK, Plaintiff, Appellee, v. John CUNNIFFE, in his individual capacity; Peter J. Savalis,
    Message 1 of 1 , Aug 30, 2011
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      United States Court of Appeals,First Circuit.



      GLIK v. CUNNIFFE
      Simon GLIK, Plaintiff, Appellee, v. John CUNNIFFE, in his individual
      capacity; Peter J. Savalis, in his individual capacity; Jerome Hall–Brewster, in
      his individual capacity; City of Boston, Defendants, Appellants.
      No. 10–1764.
      -- August 26, 2011 Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.
      Ian D. Prior, Assistant Corporation Counsel, City of Boston Law Department,
      with whom William F. Sinnott, Corporation Counsel, and Lisa Skehill Maki,
      Assistant Corporation Counsel, were on brief, for appellants.David Milton,
      with whom Howard Friedman, Law Offices of Howard Friedman, P.C., Sarah
      Wunsch, and ACLU of Massachusetts were on brief, for appellee.Anjana Samant and
      Center for Constitutional Rights on brief for Berkeley Copwatch,
      Communities United Against Police Brutality, Justice Committee, Milwaukee Police
      Accountability Coalition, Nodutdol for Korean Community Development, and
      Portland Copwatch, amici curiae.
      Simon Glik was arrested for using his cell phone's digital video camera to
      film several police officers arresting a young man on the Boston Common.
      The charges against Glik, which included violation of Massachusetts's wiretap
      statute and two other state-law offenses, were subsequently judged
      baseless and were dismissed. Glik then brought this suit under 42 U.S.C. § 1983,
      claiming that his arrest for filming the officers constituted a violation of
      his rights under the First and Fourth Amendments.
      In this interlocutory appeal, the defendant police officers challenge an
      order of the district court denying them qualified immunity on Glik's
      constitutional claims. We conclude, based on the facts alleged, that Glik was
      exercising clearly-established First Amendment rights in filming the officers
      in a public space, and that his clearly-established Fourth Amendment rights
      were violated by his arrest without probable cause. We therefore affirm.
      I.
      We recite the pertinent facts based upon the allegations of the complaint,
      Asociación de Subscripción Conjunta del Seguro de Responsabilidad
      Obligatorio v. Flores Galarza, 484 F.3d 1, 6 (1st Cir.2007), “accepting all
      well-pleaded facts in the complaint as true,” Sanchez v. Pereira–Castillo, 590
      F.3d 31, 36, 52 n. 15 (1st Cir.2009).
      As he was walking past the Boston Common on the evening of October 1, 2007,
      Simon Glik caught sight of three police officers—the individual defendants
      here—arresting a young man. Glik heard another bystander say something to
      the effect of, “You are hurting him, stop.” Concerned that the officers
      were employing excessive force to effect the arrest, Glik stopped roughly ten
      feet away and began recording video footage of the arrest on his cell
      phone.
      After placing the suspect in handcuffs, one of the officers turned to Glik
      and said, “I think you have taken enough pictures.” Glik replied, “I am
      recording this. I saw you punch him.” An officer_1_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_1) then
      approached Glik and asked if Glik's cell phone recorded audio. When Glik affirmed
      that he was recording audio, the officer placed him in handcuffs, arresting
      him for, inter alia, unlawful audio recording in violation of
      Massachusetts's wiretap statute. Glik was taken to the South Boston police station. In
      the course of booking, the police confiscated Glik's cell phone and a
      computer flash drive and held them as evidence.
      Glik was eventually charged with violation of the wiretap statute, Mass.
      Gen. Laws ch. 272, § 99(C)(1), disturbing the peace, id. ch. 272, § 53(b),
      and aiding in the escape of a prisoner, id. ch. 268, § 17. Acknowledging lack
      of probable cause for the last of these charges, the Commonwealth
      voluntarily dismissed the count of aiding in the escape of a prisoner. In February
      2008, in response to Glik's motion to dismiss, the Boston Municipal Court
      disposed of the remaining two charges for disturbance of the peace and
      violation of the wiretap statute. With regard to the former, the court noted
      that the fact that the “officers were unhappy they were being recorded during
      an arrest ․ does not make a lawful exercise of a First Amendment right a
      crime.” Likewise, the court found no probable cause supporting the wiretap
      charge, because the law requires a secret recording and the officers admitted
      that Glik had used his cell phone openly and in plain view to obtain the
      video and audio recording.
      Glik filed an internal affairs complaint with the Boston Police Department
      following his arrest, but to no avail. The Department did not investigate
      his complaint or initiate disciplinary action against the arresting
      officers. In February 2010, Glik filed a civil rights action against the officers
      and the City of Boston in the United States District Court for the District
      of Massachusetts. The complaint included claims under 42 U.S.C. § 1983 for
      violations of Glik's First and Fourth Amendment rights, as well as
      state-law claims under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12,
      § 11I, and for malicious prosecution.
      The defendants moved to dismiss Glik's complaint under Federal Rule of
      Civil Procedure 12(b)(6), arguing that the allegations of the complaint failed
      to adequately support Glik's claims and that the officers were entitled to
      qualified immunity “because it is not well-settled that he had a
      constitutional right to record the officers.” At a hearing on the motion, the
      district court focused on the qualified immunity defense, noting that it presented
      the closest issue. After hearing argument from the parties, the court
      orally denied the defendants' motion, concluding that “in the First Circuit ․
      this First Amendment right publicly to record the activities of police
      officers on public business is established.”
      This timely appeal followed. Denial of a motion to dismiss on qualified
      immunity grounds, unlike denial of a typical motion to dismiss, is immediately
      appealable on interlocutory review. Garnier v. Rodríguez, 506 F.3d 22, 25
      (1st Cir.2007); cf. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)
      (stressing “the importance of resolving immunity questions at the earliest
      possible stage in litigation”). We limit our review to the issue of
      qualified immunity, Garnier, 506 F.3d at 25, which is a legal determination that
      we review de novo, Raiche v. Pietroski, 623 F .3d 30, 35 (1st Cir.2010).
      II.
      Long-standing principles of constitutional litigation entitle public
      officials to qualified immunity from personal liability arising out of actions
      taken in the exercise of discretionary functions. See Harlow v. Fitzgerald,
      457 U.S. 800, 807 (1982); Barton v. Clancy, 632 F.3d 9, 21 (1st Cir.2011).
      The qualified immunity doctrine “balances two important interests-the need
      to hold public officials accountable when they exercise power irresponsibly
      and the need to shield officials from harassment, distraction, and
      liability when they perform their duties reasonably .” Pearson v. Callahan, 555
      U.S. 223, 231 (2009). We apply a two-prong analysis in determining questions
      of qualified immunity. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st
      Cir.2009). These prongs, which may be resolved in any order, Pearson, 555 U.S. at
      236, require that we decide “(1) whether the facts alleged or shown by the
      plaintiff make out a violation of a constitutional right; and (2) if so,
      whether the right was ‘clearly established’ at the time of the defendant's
      alleged violation,” Maldonado, 568 F.3d at 269.
      The latter analysis of whether a right was “clearly established” further
      divides into two parts: “(1) ‘the clarity of the law at the time of the
      alleged civil rights violation,’ and (2) whether, given the facts of the
      particular case, ‘a reasonable defendant would have understood that his conduct
      violated the plaintiff['s] constitutional rights.’ “ Barton, 632 F.3d at
      22 (alteration in original) (quoting Maldonado, 568 F.3d at 269). An
      affirmative finding on these inquiries does “not require a case directly on point,
      but existing precedent must have placed the ․ constitutional question
      beyond debate.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011). At bottom, “
      the salient question is whether the state of the law at the time of the
      alleged violation gave the defendant fair warning that his particular conduct
      was unconstitutional.” Maldonado, 568 F.3d at 269.
      On appeal, appellants_2_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_2) argue that they are entitled to
      qualified immunity on each of Glik's constitutional claims and, accordingly,
      that the district erred in denying their motion to dismiss._3_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_3)
      Their arguments track the two parts of the “clearly established right”
      analysis. With regard to the First Amendment claim, appellants dispute the
      clarity of the law establishing a First Amendment right to record police
      officers carrying out their public duties. On the Fourth Amendment claim,
      appellants contend that, in light of Massachusetts case law interpreting the
      state's wiretap statute, a reasonable officer would have believed there was
      probable cause to arrest Glik, and thus would not have understood that the
      arrest would violate the Fourth Amendment. We examine each argument in turn.
      A. Immunity from Glik's First Amendment Claim
      1. Were Glik's First Amendment Rights Violated?
      The First Amendment issue here is, as the parties frame it, fairly narrow:
      is there a constitutionally protected right to videotape police carrying
      out their duties in public? Basic First Amendment principles, along with case
      law from this and other circuits, answer that question unambiguously in
      the affirmative.
      It is firmly established that the First Amendment's aegis extends further
      than the text's proscription on laws “abridging the freedom of speech, or of
      the press,” and encompasses a range of conduct related to the gathering
      and dissemination of information. As the Supreme Court has observed, “the
      First Amendment goes beyond protection of the press and the self-expression of
      individuals to prohibit government from limiting the stock of information
      from which members of the public may draw.” First Nat'l Bank v. Bellotti,
      435 U.S. 765, 783 (1978); see also Stanley v. Georgia, 394 U.S. 557, 564
      (1969) (“It is ․ well established that the Constitution protects the right to
      receive information and ideas.”). An important corollary to this interest
      in protecting the stock of public information is that “[t]here is an
      undoubted right to gather news ‘from any source by means within the law.’ “
      Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (quoting Branzburg v. Hayes, 408
      U.S. 665, 681–82 (1972)).
      The filming of government officials engaged in their duties in a public
      place, including police officers performing their responsibilities, fits
      comfortably within these principles. Gathering information about government
      officials in a form that can readily be disseminated to others serves a
      cardinal First Amendment interest in protecting and promoting “the free discussion
      of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966).
      Moreover, as the Court has noted, “[f]reedom of expression has particular
      significance with respect to government because ‘[i]t is here that the state has
      a special incentive to repress opposition and often wields a more
      effective power of suppression.’ “ First Nat'l Bank, 435 U.S. at 777 n. 11
      (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the
      First Amendment 9 (1966)). This is particularly true of law enforcement
      officials, who are granted substantial discretion that may be misused to
      deprive individuals of their liberties. Cf. Gentile v. State Bar of Nev., 501
      U.S. 1030, 1035–36 (1991) (observing that “[t]he public has an interest in
      [the] responsible exercise” of the discretion granted police and
      prosecutors). Ensuring the public's right to gather information about their officials
      not only aids in the uncovering of abuses, see id. at 1034–35 (recognizing a
      core First Amendment interest in “the dissemination of information
      relating to alleged governmental misconduct”), but also may have a salutary effect
      on the functioning of government more generally, see Press–Enter. Co. v.
      Superior Court, 478 U.S. 1, 8 (1986) (noting that “many governmental
      processes operate best under public scrutiny”).
      In line with these principles, we have previously recognized that the
      videotaping of public officials is an exercise of First Amendment liberties. In
      Iacobucci v. Boulter, 193 F.3d 14 (1st Cir.1999), a local journalist
      brought a § 1983 claim arising from his arrest in the course of filming officials
      in the hallway outside a public meeting of a historic district commission.
      The commissioners had objected to the plaintiff's filming. Id. at 18. When
      the plaintiff refused to desist, a police officer on the scene arrested
      him for disorderly conduct. Id. The charges were later dismissed. Id.
      Although the plaintiff's subsequent § 1983 suit against the arresting police
      officer was grounded largely in the Fourth Amendment and did not include a First
      Amendment claim, we explicitly noted, in rejecting the officer's appeal
      from a denial of qualified immunity, that because the plaintiff's
      journalistic activities “were peaceful, not performed in derogation of any law, and
      done in the exercise of his First Amendment rights, [the officer] lacked the
      authority to stop them.” Id. at 25 (emphasis added).
      Our recognition that the First Amendment protects the filming of government
      officials in public spaces accords with the decisions of numerous circuit
      and district courts. See, e.g., Smith v. City of Cumming, 212 F.3d 1332,
      1333 (11th Cir.2000) (“The First Amendment protects the right to gather
      information about what public officials do on public property, and specifically,
      a right to record matters of public interest.”); Fordyce v. City of
      Seattle, 55 F .3d 436, 439 (9th Cir.1995) (recognizing a “First Amendment right
      to film matters of public interest”); Demarest v. Athol/Orange Cmty.
      Television, Inc., 188 F.Supp.2d 82, 94–95 (D.Mass.2002) (finding it “highly
      probable” that filming of a public official on street outside his home by
      contributors to public access cable show was protected by the First Amendment,
      and noting that, “[a]t base, plaintiffs had a constitutionally protected
      right to record matters of public interest”); Channel 10, Inc. v. Gunnarson,
      337 F.Supp. 634, 638 (D.Minn.1972) (holding that police interference with
      television newsman's filming of crime scene and seizure of video camera
      constituted unlawful prior restraint under First Amendment); cf. Schnell v. City
      of Chi., 407 F.2d 1084, 1085 (7th Cir.1969) (reversing dismissal for
      failure to state a claim of suit claiming police interference with news reporters
      and photographers' “constitutional right to gather and report news, and to
      photograph news events” under the First Amendment (internal quotation mark
      omitted)), overruled on other grounds by City of Kenosha v. Bruno, 412 U.S.
      507 (1973); Connell v. Town of Hudson, 733 F.Supp. 465, 471–72
      (D.N.H.1990) (denying qualified immunity from First Amendment claim to police chief
      who prevented freelance photographer from taking pictures of car accident).
      It is of no significance that the present case, unlike Iacobucci and many
      of those cited above, involves a private individual, and not a reporter,
      gathering information about public officials. The First Amendment right to
      gather news is, as the Court has often noted, not one that inures solely to
      the benefit of the news media; rather, the public's right of access to
      information is coextensive with that of the press. Houchins, 438 U.S. at 16
      (Stewart, J., concurring) (noting that the Constitution “assure[s] the public
      and the press equal access once government has opened its doors”); Branzburg,
      408 U.S. at 684 (“[T]he First Amendment does not guarantee the press a
      constitutional right of special access to information not available to the
      public generally.”). Indeed, there are several cases involving private
      individuals among the decisions from other courts recognizing the First Amendment
      right to film. See, e.g., Smith, 212 F.3d 1332; Robinson v. Fetterman, 378
      F.Supp.2d 534 (E.D.Pa.2005) (holding that arrest of individual filming
      police activities from private property violated First Amendment); Cirelli v.
      Town of Johnston Sch. Dist., 897 F.Supp. 663 (D.R.I.1995) (holding that
      teacher had a right under the First Amendment to videotape potentially
      hazardous working conditions at school, which were a matter of public concern).
      Moreover, changes in technology and society have made the lines between
      private citizen and journalist exceedingly difficult to draw. The proliferation
      of electronic devices with video-recording capability means that many of our
      images of current events come from bystanders with a ready cell phone or
      digital camera rather than a traditional film crew, and news stories are now
      just as likely to be broken by a blogger at her computer as a reporter at
      a major newspaper. Such developments make clear why the news-gathering
      protections of the First Amendment cannot turn on professional credentials or
      status.
      To be sure, the right to film is not without limitations. It may be subject
      to reasonable time, place, and manner restrictions. See Smith, 212 F.3d at
      1333. We have no occasion to explore those limitations here, however. On
      the facts alleged in the complaint, Glik's exercise of his First Amendment
      rights fell well within the bounds of the Constitution's protections. Glik
      filmed the defendant police officers in the Boston Common, the oldest city
      park in the United States and the apotheosis of a public forum. In such
      traditional public spaces, the rights of the state to limit the exercise of
      First Amendment activity are “sharply circumscribed.” Perry Educ. Ass'n v.
      Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). Moreover, as in
      Iacobucci, the complaint indicates that Glik “filmed [the officers] from a
      comfortable remove” and “neither spoke to nor molested them in any way” (except
      in directly responding to the officers when they addressed him). 193 F .3d
      at 25. Such peaceful recording of an arrest in a public space that does not
      interfere with the police officers' performance of their duties is not
      reasonably subject to limitation.
      In our society, police officers are expected to endure significant burdens
      caused by citizens' exercise of their First Amendment rights. See City of
      Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a
      significant amount of verbal criticism and challenge directed at police
      officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or
      challenge police action without thereby risking arrest is one of the principal
      characteristics by which we distinguish a free nation from a police state.”
      Id. at 462–63. The same restraint demanded of law enforcement officers in
      the face of “provocative and challenging” speech, id. at 461 (quoting
      Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are
      merely the subject of videotaping that memorializes, without impairing,
      their work in public spaces.
      2. Was the Right to Film Clearly Established?
      Though the “clearly established” inquiry does “not require a case directly
      on point,” al-Kidd, 131 S.Ct. at 2083, we have such a case in Iacobucci.
      What is particularly notable about Iacobucci is the brevity of the First
      Amendment discussion, a characteristic found in other circuit opinions that
      have recognized a right to film government officials or matters of public
      interest in public space. See Smith, 212 F.3d at 1333; Fordyce, 55 F .3d at
      439. This terseness implicitly speaks to the fundamental and virtually
      self-evident nature of the First Amendment's protections in this area. Cf. Lee v.
      Gregory, 363 F.3d 931, 936 (9th Cir.2004) (noting that some constitutional
      violations are “self-evident” and do not require particularized case law
      to substantiate them). We thus have no trouble concluding that “the state
      of the law at the time of the alleged violation gave the defendant[s] fair
      warning that [their] particular conduct was unconstitutional.” Maldonado,
      568 F.3d at 269.
      We find unavailing the two cases principally relied upon by the appellants
      in arguing that the First Amendment right to film was not clearly
      established at the time of the arrest, both of which were decided after Glik's
      arrest. The first is an unpublished per curiam opinion from the Fourth Circuit
      that summarily concludes, with no discussion of the facts or relevant law,
      that the “right to record police activities on public property was not
      clearly established in this circuit at the time of the alleged conduct.”
      Szymecki v. Houck, 353 F. App'x 852 (4th Cir.2009). Such unpublished opinions “
      have no precedential force,” Merrimac Paper Co. v. Harrison (In re Merrimac
      Paper Co.), 420 F.3d 53, 60 (1st Cir.2005); see also United States v. King,
      628 F.3d 693, 700 n. 3 (4th Cir.2011) (same), and the absence of substantive
      discussion deprives Szymecki of any marginal persuasive value it might
      otherwise have had.
      The second case appellants cite is a Third Circuit opinion finding the
      right to film not clearly established in the context of a traffic stop,
      characterized as an “inherently dangerous situation[ ].” Kelly v. Borough of
      Carlisle, 622 F.3d 248, 262 (3d Cir.2010). Kelly is clearly distinguishable on
      its facts; a traffic stop is worlds apart from an arrest on the Boston
      Common in the circumstances alleged. Nonetheless, even if these cases were to
      establish a circuit split with respect to the clarity of the First
      Amendment's protections in the situation before us, that split would not undermine
      our conclusion that the right violated by appellants was clearly established
      in this circuit at the time of Glik's arrest. See Newman v. Massachusetts,
      884 F.2d 19, 25 (1st Cir.1989) (finding constitutional right clearly
      established in the First Circuit despite “recogni[tion] that the courts are not
      yet unanimous on whether this ․ right exists”).
      In summary, though not unqualified, a citizen's right to film government
      officials, including law enforcement officers, in the discharge of their
      duties in a public space is a basic, vital, and well-established liberty
      safeguarded by the First Amendment. Accordingly, we hold that the district court
      did not err in denying qualified immunity to the appellants on Glik's First
      Amendment claim.
      B. Immunity from Glik's Fourth Amendment Claim
      1. Were Glik's Fourth Amendment Rights Violated?

      The existence of a Fourth Amendment violation on the facts alleged here
      turns on a question of Massachusetts law. The Fourth Amendment requires that
      an arrest be grounded in probable cause, Martínez–Rodríguez v. Guevara, 597
      F.3d 414, 420 (1st Cir.2010), i.e., that, “at the time of the arrest, the ‘
      facts and circumstances within the officer's knowledge ․ [were] sufficient
      to warrant a prudent person, or one of reasonable caution, in believing,
      in the circumstances shown, that the suspect [had] committed, [was]
      committing, or [was] about to commit an offense,’ “ Holder v. Town of Sandown, 585
      F.3d 500, 504 (1st Cir.2009) (quoting Michigan v. DeFillippo, 443 U.S. 31,
      37 (1979)). The thrust of Glik's Fourth Amendment claim is that the
      appellants lacked any such probable cause that Glik had violated state law at the
      time of arrest. The appellants argue, to the contrary, that the
      allegations of the complaint establish probable cause that Glik violated
      Massachusetts's wiretap statute._4_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_4) Upon examination of the statute and
      relevant case law from Massachusetts's Supreme Judicial Court, we disagree.
      Massachusetts's wiretap statute makes it a crime to “willfully commit[ ]
      an interception ․ of any wire or oral communication.” Mass. Gen. Laws ch.
      272, § 99(C)(1). As the Supreme Judicial Court has noted, this statute
      sweeps more broadly than comparable laws in other jurisdictions, in that its
      prohibition is not restricted to the recording of communications that are made
      with a reasonable expectation of privacy. See Commonwealth v. Hyde, 750
      N.E.2d 963, 967–68 & n. 5 (Mass.2001)._5_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_5) The critical limiting
      term in the statute is “interception,” defined to mean “to secretly hear,
      secretly record, or aid another to secretly hear or secretly record the
      contents of any wire or oral communication through the use of any intercepting
      device by any person other than a person given prior authority by all
      parties to such communication.” Id. § 99(B)(4).
      The relevant question, then, is whether, on the facts alleged in the
      complaint, Glik “secretly” videotaped the appellant officers._6_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_6)
      The Supreme Judicial Court has held that a recording is “secret” unless the
      subject has “actual knowledge” of the fact of recording. Commonwealth v.
      Jackson, 349 N.E.2d 337, 340 (Mass.1976). It has also made clear that “
      actual knowledge” can be proven by “objective manifestations of knowledge” to “
      avoid the problems involved in speculating as to the [subject's]
      subjective state of mind.” Id. at 340–41. Moreover, the court has noted that “
      actual knowledge” does not require that there be any explicit acknowledgment of
      or reference to the fact of the recording. Id. at 340 (“[T]he person
      recording the conversation [need not] confirm the [subject's] apparent awareness
      by acknowledging the fact of the intercepting device.”). Thus, in Hyde,
      where the defendant was convicted of a wiretap violation for secretly
      recording a traffic stop, the Supreme Judicial Court explained that “the recording
      would not have been secret” within the meaning of the statute if the
      defendant had simply “held the tape recorder in plain sight.” 750 N.E.2d at 971.
      The unmistakable logic of Hyde, building on Jackson, is that the secrecy
      inquiry turns on notice, i.e., whether, based on objective indicators, such
      as the presence of a recording device in plain view, one can infer that the
      subject was aware that she might be recorded.
      Commonwealth v. Rivera, 833 N.E.2d 1113 (Mass.2005), forcefully illustrates
      this point. There, a criminal defendant argued for suppression under the
      wiretap statute of an audio recording by a convenience store security
      camera, on the theory that he lacked actual knowledge that the security cameras
      recorded audio as well as video. Although the case was resolved on other
      grounds, four of the seven justices of the Supreme Judicial Court concurred to
      note that the defendant's unawareness of the audio recording capabilities
      of the security cameras did not render the recordings “secret” under the
      wiretap statute where the cameras were in plain sight. Id. at 1125 (Cowin,
      J., concurring in part) (“That the defendant did not know the camera also
      included an audio component does not convert this otherwise open recording
      into the type of ‘secret’ interception prohibited by the Massachusetts
      wiretap statute.”); id. at 1130 (Cordy, J., concurring) (“Just because a robber
      with a gun may not realize that the surveillance camera pointed directly
      at him is recording both his image and his voice does not ․ make the
      recording a ‘secret’ one within the meaning and intent of the statute.”).
      The complaint alleges that Glik “openly record[ed] the police officers”
      with his cell phone, and further that “the police officers admitted Mr. Glik
      was publicly and openly recording them.” On its face, this conduct falls
      plainly outside the type of clandestine recording targeted by the wiretap
      statute. See Jackson, 349 N.E.2d at 339 (“While we recognize that [the wiretap
      statute] is designed to control the use of electronic surveillance devices
      by private individuals because of the serious threat they pose to ‘the
      privacy of all citizens,’ (§ 99A), it is clear that the Legislature intended
      that the statutory restrictions be applicable only to the secret use of such
      devices.” (emphasis added)). Moreover, not only does Hyde (along with the
      Rivera concurrences) indicate that the use of a recording device in “plain
      sight,” as here, constitutes adequate objective evidence of actual
      knowledge of the recording, but here the police officers made clear through their
      conduct that they knew Glik was recording them. Specifically, one of the
      police officers approached Glik after the suspect had been handcuffed and told
      him, “I think you have taken enough pictures.”
      The officers protest that Glik's use of a cell phone was insufficient to
      put them on notice of the recording. They note that a cell phone, unlike the
      tape recorder used in Hyde, has numerous discrete functions, such as text
      messaging, internet browsing, video gaming, and photography, and thus the
      fact of an individual holding out a cell phone in front of his body is of
      indeterminate significance. The argument suffers from factual as well as legal
      flaws. The allegations of the complaint indicate that the officers were
      cognizant of Glik's surveillance, knew that Glik was using his phone to
      record them in some fashion, and were aware, based on their asking Glik whether
      he was recording audio, that cell phones may have sound recording
      capabilities. The fact that a cell phone may have other functions is thus irrelevant
      to the question of whether Glik's recording was “secret.”
      Appellants' argument reduces to the contention that, though they were aware
      of Glik's recording, they initially thought Glik was taking pictures of
      them rather than recording video and audio. This is almost precisely the
      argument rejected by the four concurring justices in Rivera, and it runs
      directly contrary to the logic of Hyde's “plain view” discussion. Taking the
      appellants' argument to its logical end, the Hyde defendant's recording would
      have escaped a wiretap offense only if he had held his tape recorder in
      plain view and there was affirmative evidence that the officers were aware
      that the device was switched on and recording audio. To the contrary, Hyde
      makes the point that the use in plain view of a device commonly known to
      record audio is, on its own, sufficient evidence from which to infer the
      subjects' actual knowledge of the recording. See 750 N.E.2d at 971 (noting that
      recording would not have been secret under the statute if “the defendant had
      simply informed the police of his intention to tape record the encounter,
      or even held the tape recorder in plain sight” (emphasis added)). Simply
      put, a straightforward reading of the statute and case law cannot support the
      suggestion that a recording made with a device known to record audio and
      held in plain view is “secret.”
      We thus conclude, on the facts of the complaint, that Glik's recording was
      not “secret” within the meaning of Massachusetts's wiretap statute, and
      therefore the officers lacked probable cause to arrest him. Accordingly, the
      complaint makes out a violation of Glik's Fourth Amendment rights.
      2. Was the Absence of Probable Cause Clearly Established Under the
      Circumstances?
      Appellants contend that, regardless of whether Glik's conduct in fact
      violated the wiretap law, the state of the law was such that a reasonable
      officer would not have understood that arresting Glik for a wiretap offense
      under the circumstances alleged in the complaint would violate Glik's Fourth
      Amendment rights. They point out, rightly, that a lesser showing is required
      for an officer to be entitled to qualified immunity from a Fourth Amendment
      claim based on a warrantless arrest than to establish probable cause. See
      Cox v. Hainey, 391 F.3d 25, 31 (1st Cir.2004). Officers are entitled to
      qualified immunity “so long as the presence of probable cause is at least argua
      ble.” Ricci v. Urso, 974 F.2d 5, 7 (1st Cir.1992) (quoting Prokey v.
      Watkins, 942 F.2d 67, 72 (1st Cir.1991)).
      The presence of probable cause was not even arguable here. The allegations
      of the complaint establish that Glik was openly recording the police
      officers and that they were aware of his surveillance. For the reasons we have
      discussed, we see no basis in the law for a reasonable officer to conclude
      that such a conspicuous act of recording was “secret” merely because the
      officer did not have actual knowledge of whether audio was being recorded. We
      thus agree with the district court that, at this stage in the litigation,
      the officers are not entitled to qualified immunity from Glik's Fourth
      Amendment claim.
      III.
      For the reasons set forth above, we affirm the district court's order
      denying appellants' claim of qualified immunity.
      So ordered.
      FOOTNOTES
      _1_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_ref_1) . It is not clear from the complaint whether this was
      the same officer who initially addressed Glik.
      _2_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_ref_2) . Although the City of Boston is formally included in
      the caption to this appeal, the parties agree that the City has no right
      to immediate interlocutory appeal from a denial of qualified immunity, as it
      did not-and could not-assert such a defense. See Walden v. City of
      Providence, 596 F.3d 38, 55 n. 23 (1st Cir.2010). In referring to the appellants,
      then, we refer only to the individual defendants appealing the denial of
      qualified immunity.
      _3_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_ref_3) . Appellants also argue that Glik failed to state a
      claim for malicious prosecution under Massachusetts law because, they argue,
      there was probable cause to charge Glik with a violation of the wiretap
      statute. As Glik rightly points out, however, appellants have no immediate
      right of appeal from denial of a motion to dismiss for failure to state a
      claim, and thus we do not reach their argument. See Domegan v. Fair, 859 F.2d
      1059, 1061–62 (1st Cir.1988) (“Notwithstanding that we have jurisdiction
      to review the denial of qualified immunity midstream, ‘[a]ny additional
      claim presented to and rejected by the district court must independently
      satisfy the collateral-order exception to the final-judgment rule in order for us
      to address it on an interlocutory appeal.’ “ (alteration in original)
      (quoting Bonitz v. Fair, 804 F.2d 164, 173 (1st Cir.1986))).
      _4_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_ref_4) . Appellants do not attempt any argument that the
      facts make out probable cause for the other two offenses with which Glik was
      charged, disturbing the peace and aiding in the escape of a prisoner.
      _5_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_ref_5) . In Hyde, the defendant argued that the wiretap
      statute did not apply to his taping of police officers, as those “police
      officers did not possess any privacy interest in the words they spoke” in their
      interactions with the defendant. 750 N.E.2d at 965. The court rejected the
      argument, noting that the statute requires no reasonable expectation of
      privacy, and held that the prohibition of secret recordings squarely applies to
      “recordings of police officers or other public officials interacting with
      members of the public.” Id. at 967. Thus, in the present case, the fact
      that the subjects of Glik's recording were police officers is immaterial to
      the question of the wiretap statute's applicability.
      _6_
      (http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw#footnote_ref_6) . Glik also points to the statute's language
      requiring that an offender “willfully commit[ ] an interception,” Mass. Gen. Laws
      ch. 272, § 99(C)(1) (emphasis added), and argues that there was no probable
      cause for his arrest because his recording was not “willful.” In this
      vein, he notes that he was holding his camera in plain view and readily
      acknowledged that he was recording sound when asked. However, the relevant
      precedent suggests that the statute's reference to willfulness requires only a
      specific intent to record a particular communication, rather than requiring
      an intent to hide the recording from the subject or some other “willful”
      state of mind. See Commonwealth v. Ennis, 785 N.E.2d 677, 681 (Mass.2003)
      (noting that the Department of Correction “did willfully record” a telephone
      call, under circumstances where the Department expressly advised the
      participants that their conversation would be recorded). The allegations of the
      complaint leave no doubt that Glik intended to record appellants' conduct of
      the arrest, and thus we see no merit in Glik's argument on this point.
      LIPEZ, Circuit Judge.


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