- Associated Press - Monday, May 26, 2014

CONCORD, N.H. (AP) - A federal appeals court has refused to dismiss a New Hampshire woman’s lawsuit against the Weare police department, saying she had a constitutional right to videotape a police officer during a traffic stop.

The 1st Circuit Court of Appeals says citizens may videotape police officers performing their duties unless an officer orders them to disperse or stop recording for legitimate safety reasons.

In its unanimous ruling Friday, the court rejected arguments by Weare officers that they should be immune from liability, under a theory that allows government officials to make reasonable mistakes that do not violate clearly established constitutional rights or state laws.

The ruling allows Carla Gericke of Lebanon to pursue her civil rights violation lawsuit and claims that Weare police charged her with illegal wiretapping in retaliation for her videotaping a 2010 traffic stop of an acquaintance in another car. She was not prosecuted on the charge.

Attorney Charles Bauer, who represents the Weare Police Department, said the police could still prevail at trial if the jury finds Gericke’s conduct during the traffic stop was disruptive.

“There’s another side of the story,” Bauer said Sunday. “Right now everybody, including me, has had to accept Ms. Gericke’s side of the story.”

The appeals court judges say their ruling is based on Gericke’s version of what took place March 24, 2010, when former Sgt. Joseph Kelley pulled over the car she was following to a friend’s house. According to the ruling, Gericke stopped behind her friend’s car when Kelley pulled it over and Kelley told her to move her car to another location. Once parked nearby, she took her camera and began filming Kelley as he spoke to the occupants of the other car. Kelley ordered her to return to her car.

“Significantly, under Gericke’s account, Kelley never asked her to stop recording,” Judge Kermit Lipez wrote.

“An individual’s exercise of her First Amendment right to film police activity carried out in public, including a traffic stop, necessarily remains unfettered unless and until a reasonable restriction is imposed,” Lipez wrote.

She was charged with illegal wiretapping later that night. She filed her federal lawsuit against the department in 2011.

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