(José Niño, Headline USA) A federal appellate court has delivered a split verdict for civil liberties supporters, confirming a constitutional protection while leaving the man who pursued it empty handed, according to a report from Reclaim The Net.
The Second Circuit Court of Appeals now stands as the ninth federal appellate body to conclude that the First Amendment covers the public’s right to film police carrying out their work in open settings, a finding that now governs Connecticut, New York, and Vermont.
Yet the very same decision, released Monday, preserved qualified immunity protections for the officers who made the arrest, meaning plaintiff Keith Massimino walks away without compensation despite the court validating his core argument.
The dispute began on October 30, 2018, when Massimino recorded footage of the Waterbury Police Department’s exterior while positioned on a public sidewalk. This was consistent with his usual practice, as he identifies himself, per the ACLU of Connecticut, as a “First Amendment auditing hobbyist.”
During that encounter, officers Matthew Benoit and Frank Laone questioned him. Massimino offered noncommittal replies and refused to hand over identification after the officers characterized their request as a “lawful order.” Authorities then arrested him for obstructing a peace officer under a Connecticut statute, holding him for several hours before his release. The case against him was ultimately dropped in May 2021.
He subsequently filed a lawsuit against both officers in August 2021, bringing three distinct claims, a First Amendment argument centered on his right to film police, a Fourth Amendment argument alleging wrongful detention and arrest lacking probable cause, and a malicious prosecution claim.
While the appellate judges acknowledged the First Amendment applied to his actions, they nevertheless affirmed the lower court’s ruling awarding qualified immunity to the officers, explaining that the right in question had not been clearly established within the Second Circuit when the arrest took place. The right now carries clear legal standing in that jurisdiction, though this recognition offers Massimino no personal remedy because it only applies to future cases.
Judges further rejected his Fourth Amendment and malicious prosecution claims, concluding the officers possessed adequate reasonable suspicion to initiate the stop and probable cause to arrest him once he declined to identify himself.
Judge Myrna Pérez, authoring the panel’s opinion, stated that constitutional coverage “encompasses Massimino’s recording of the exterior of a police station from a public sidewalk.” She also delivered a pointed remark on government transparency, writing, “When the government wants to preserve its privacy, it may build a fence or close a door, but not ban speech.”
Moving forward, law enforcement agencies across Connecticut, New York, and Vermont can no longer rely on qualified immunity as protection if they detain someone strictly for recording them in a public location, even as this landmark clarification does nothing to alter the result of Massimino’s own legal battle.
José Niño is the deputy editor of Headline USA. Follow him at x.com/JoseAlNino
