63 Fla. L. Rev. 1549 (2011)| | | |

On October 1, 2007, Simon Glik observed several police officers arresting a young man on the Boston Common. Concerned that the officers were employing excessive force, Glik began to record the arrest with his cell phone. After successfully arresting the young man, an officer asked Glik whether the cell phone had recorded audio. When Glik replied in the affirmative, the officer arrested Glik for “unlawful audio recording in violation of Massachusetts’s wiretap statute.” Glik was ultimately charged with three state law offenses: (1) violating the state wiretap statute,3 (2) disturbing the peace,4 and (3) aiding in the escape of a prisoner.

The Commonwealth voluntarily dismissed the count of aiding in the escape of a prisoner, and a Boston municipal court disposed of the remaining two charges in response to Glik’s motion to dismiss.6 In particular, 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.” Following a fruitless filing of his complaint with the Boston Police Department,8 Glik filed an action against the arresting officers and the City of Boston in the U.S. District Court for the District of Massachusetts. Glik’s complaint included, in relevant part, claims under 42 U.S.C. § 19839 for violation of Glik’s First and Fourth Amendment rights.