Filming a Traffic Stop in Weare, NH The Gericke Case:
A case right here in New Hampshire that discusses the filming of police at traffic stops. On March 24, 2010, around 11:30 p.m., Carla Gericke was following her friend Tyler Hanslin to his home in Weare. Sergeant Joseph Kelley pulled over Hanslin for a traffic stop on South Stark Highway. Gericke, who just happened to be following her friend Hanslin to his home in Weare, NH stopped too, thinking she was being detained. Officer Kelley clarified it was Hanslin he was stopping and allowed Gericke to move her car to the adjacent Weare Middle School parking lot.
From about 30 feet away, behind a fence, Gericke bravely announced she was recording and pointed her camera at Officer Kelley as he interacted with Hanslin (who had disclosed to the officer he had a licensed firearm). Her camera malfunctioned and didn't record, but that's irrelevant—the attempt mattered. Kelley ordered her back to her car, and she complied. He never told her to stop filming or to leave the area. Backup officers arrived, demanded her camera, and when she refused, arrested her for disobeying orders. At the station, she was charged with disobeying an officer, obstructing a government official, and—crucially—violating the wiretapping statute for "unlawful interception of oral communications.
Charges were dropped before trial. Gericke sued under 42 U.S.C. § 1983, claiming retaliatory prosecution, which violated her First Amendment rights. The district court denied qualified immunity to the officers, finding no probable cause for the wiretapping charge (officers had no privacy expectation in public). On appeal, the First Circuit affirmed the lower court's ruling. Read The Law About ... - Recording Conversations - NH Law About ... at New Hampshire Law Library
Key rulings:
- Right to Film Traffic Stops: Traffic stops are "police carrying out their duties in public," so the right applies, just like in Glik. It's not extinguished by the setting.
- Reasonable Restrictions Allowed: Officers can impose limits for safety (e.g., if armed suspects or crowds pose risks). But orders targeting filming must be reasonable—only if it interferes or is about to interfere with duties.
- Clearly Established: By 2010, the right was clear in the First Circuit. Without an order to stop or leave, Gericke's attempt was protected.
- Retaliation: Charging her for protected activity, without probable cause, violated the First Amendment.
- Pedestrian Stops: If officers stop you on the sidewalk for questioning (e.g., reasonable suspicion of loitering), you can film from a safe distance without interfering. Courts in other circuits, like the Seventh (ACLU of Ill. v. Alvarez, 2012), have struck down broad anti-recording laws.
- Arrests in Public: As in Glik, filming an arrest in a park, street, or protest is protected. The Third Circuit (Fields v. City of Philadelphia, 2017) and Fifth Circuit (Turner v. Lieutenant Driver, 2017) agree: It's a First Amendment activity.
- Vehicle Searches or DUI Checkpoints: During a sobriety checkpoint or car search, passengers or bystanders can record if not obstructing. But inside a private vehicle? Gray area—expectation of privacy might apply, though public roads lean toward protection.
- Protests or Crowds: Filming at demonstrations is core speech. The Ninth Circuit (Animal Legal Def. Fund v. Wasden, 2018) protected undercover filming of government-related activities.
- Interference: You can't block officers, ignore lawful orders (e.g., "Step back 10 feet"), or create hazards. Gericke stresses: No right if disruptive.
- Private Property: On private land (e.g., mall, home), owners can restrict filming, and police might enforce trespass laws.
- Sensitive Situations: In high-risk scenarios (active shooter, confidential informants), reasonable orders to disperse are okay.
- Audio vs. Video: NH's wiretap law requires consent for private conversations, but public police actions aren't "private."
- Stay Safe and Non-Interfering: Announce you're recording (as Gericke did) to avoid secrecy claims. Keep distance—30 feet like Gericke is a good benchmark. Obey commands unrelated to filming.
- Know Your Device: Use hands-free if driving. Apps like ACLU's "Mobile Justice" auto-upload videos to prevent seizure.
- If Arrested: Don't resist. Invoke your rights calmly: "I'm exercising my First Amendment right to record." Seek legal help immediately seized devices need court orders for searches (Riley v. California, 2014).
- Post-Incident: If charged (e.g., wiretapping, disorderly conduct), evidence of retaliation can lead to dismissal or lawsuits. Gericke's case shows dropped charges don't end liability.
- For Officers: Training on Gericke is key. NH departments should update policies to respect this right.
Laws evolve—stay informed. Joseph Kelly Levasseur, Esq.
(603) 622-7575
(603) 622-7575
Manchester, NH 03103
This post is for informational purposes only and may not include updated legal opinions. Consult a lawyer for your situation.