In the recent case, Glik v. Cunnifee, 665 F.3d 78 (2011), the First Circuit Court of Appeals in Boston recently held that the First Amendment protects the right of citizens to make video and audio recordings of police officers arresting people on the street. The federal court decision was particularly relevant in New Hampshire, where police officers in Manchester, Nashua, Weare, Portsmouth and Keene, have recently charged citizens with violating the New Hampshire wiretap statute for recording police officers performing their pubic duties.

Mr. Glik observed and recorded Boston police officers arresting a citizen on Boston Common. Believing that the police were using excessive force, Glik advised the police that he was capturing their actions on video. The police arrested Mr. Glik and charged him with violating the Massachusetts wiretap statute. His criminal charges were ultimately dismissed and Mr. Glik then sued the officers involved and the City of Boston for violating his civil rights. The police and the city asked the court to dismiss the civil rights claim, but the court denied their request.

The court held that the protections of the First Amendment are not limited to the mere act of speaking or publishing words that the government may not like. “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 for the press and the self-expression of individuals to prohibit the government from limiting the stock of information from which members of the public may draw.”

The Court continued, writing that “the filing 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 public 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. The court concluded by stating that, “the freedom of individually 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.”

Police officers do not have easy jobs. However, the mere fact that performing their day to day activities may require them to endure certain unpleasantries does not change the fact that they perform their public duties in the name of the public, using equipment provided by the public, and to serve a public purpose. Monitoring and even criticizing the use of public authority and funding goes to the very heart of citizen activism that the First Amendment was specifically written to protect. The First Circuit Court of Appeals decided this case correctly and protected the public’s right to know.

One of the things that has caused some of Mr. Bird’s supporters to feel dissatisfied with the New Hampshire Supreme Court’s decision concerns the standard of review applied by the Court and the fact that the Court gave what some see as excessive deference to the government. The first thing to understand about New Hampshire appeal in the Supreme Court is that the Supreme Court is not a “second jury.” The Supreme Court judges assume that the jury got all of the factual questions right. Showing this kind of deference to the factual findings of juries is entirely appropriate. In fact, the system could not operate if the Supreme Court was able to second guess the jury verdict when it hears appeal. Appeals are usually limited to the question of whether the trial judge made an error of law.

The high burden faced by a party appealing a lower court decision, and the deference shown to lower court and jury proceedings, is not unique to New Hampshire. Although there may be some very subtle differences from state-to-state, in general, appellate courts exist to review trial court decisions solely for errors of law. The Supreme Court’s deference to findings of fact in the lower court is standard operating procedure; Mr. Bird is not being picked on in this regard.

One of the things that has caused some of Mr. Bird’s supporters to feel dissatisfied with the New Hampshire Supreme Court’s decision concerns the standard of review applied by the Court and the fact that the Court gave what some see as excessive deference to the government.  The first thing to understand about New Hampshire appeal in the Supreme Court is that the Supreme Court is not a “second jury.”  The Supreme Court judges assume that the jury got all of the factual questions right.  Showing this kind of deference to the factual findings of juries is entirely appropriate.  In fact, the system could not operate if the Supreme Court was able to second guess the jury verdict when it hears appeal.  Appeals are usually limited to the question of whether the trial judge made an error of law.

The high burden faced by a party appealing a lower court decision, and the deference shown to lower court and jury proceedings, is not unique to New Hampshire.  Although there may be some very subtle differences from state-to-state, in general, appellate courts exist to review trial court decisions solely for errors of law.  The Supreme Court’s deference to findings of fact in the lower court is standard operating procedure; Mr. Bird is not being picked on in this regard

Mr. Bird was charged with felony criminal threatening.  The government charged that Bird:

did commit the crime of criminal threatening in that by his physical conduct he purposely attempted to place [the woman] in fear of imminent bodily injury or physical contact by waving [a] forty-five caliber handgun, a firearm and deadly weapon pursuant to RSA 625:11, V at [the woman] while telling [the woman] to get off of his property.

In order to gain a conviction at trial, the government is required to prove each and every element of the crime charged beyond a reasonable doubt.  If a single juror has a doubt about even one of the elements, then the judge will tell the jury that it cannot convict a defendant.  The elements of criminal threatening are: (1) that by physical conduct; (2) Mr. Bird placed Ms. Harris in fear of imminent bodily injury or physical contact; (3) by “waving” a deadly weapon at Harris while telling her to get off his property; and (4) he did all of these things purposely.

Based on the facts as set forth in the opinion, there was enough evidence for jury to find that Mr. Bird’s committed each of these elements.  The main controversy seems to surround the rejection of Bird’s claims of self-defense.  RSA 627:7, entitled “Use of Force in Defense of Premises,” governs when a person is justified in using non-deadly force to terminate the commission of a criminal trespass. It states, in relevant part:

A person in possession or control of a premises or a person is licensed or privileged to be thereon is justified in using non-deadly force upon another when and to the extent that he reasonably believes it necessary to prevent or terminate the commission of a criminal trespass by such other in or upon such premises . . . .

When a defendant raises a valid self-defense claim, as Bird did in this case, then the burden shifts to the State to prove that it was unreasonable for Bird to think that his conduct was necessary to terminate Harris’ act of criminal trespass. Based on the guilty verdict, it is clear that the jury believed that Mr. Bird’s conduct was not reasonable in light of the “threat” posed by the trespasser.

The Ward Bird case has generated a great deal of local, and even national, attention.  On its face, the fact that a man with no criminal record whose only action was showing a gun to an intruder suggests an extreme miscarriage of justice.  The cases raises questions about the freedom a property owner to act in self-defense on his or her own property, judicial power, and the wisdom of laws establishing minimum mandatory sentences that are imposed without the benefit of a judicial “safety valve.”  The facts of the case, as recounted by the New Hampshire Supreme Court in its October 27, 2010 decision, are as follows:

Christine Harris arranged to meet a real estate agent on March 27, 2006, at his office to view a property for sale in Moultonborough owned by Patricia Viano that Harris was interested in purchasing. That day, she called the real estate agent to inform him she was running late and could not make the appointment. Because he could not meet her later that day, she decided to look at the property herself. During her drive to the property, she became lost and stopped at the home of the defendant’s niece, where she asked for directions. The niece told her that the most direct route to the property was Emerson Path to Yukon Trail, and then a road to the left with a small bridge over a stream. The niece told her that if she passed a white “job trailer,” she was on the wrong property.

After Harris left the home of the defendant’s niece, the niece telephoned the defendant to warn him that Harris was going to look at the Viano property and that she might show up on his property. She also told the defendant that Harris was driving a Ford Ranger. Harris followed the niece’s directions and drove past signs that stated “Private road, keep out” on Emerson Path and “no trespassing” on Yukon Trail. She missed the left hand turn off of Yukon Trail, drove past the white trailer, and ended up in front of the defendant’s house. She parked her car and got out. The defendant emerged from his home “screaming, get the F off my property.” He came down from his porch, continuing to yell profanities while waving a gun at her. At trial, she testified that he pointed the gun “[t]owards” her. Harris asked the defendant whether he was the boyfriend of the woman selling the property. He repeated his command for her to leave his property. Harris eventually climbed back into her car, mouthing “[w]hat an ass.” The defendant then walked off the porch toward her waving his gun as she backed out of the driveway.

Over the next several days, we will be updating this series of postings on the Ward Bird case, addressing the law of criminal threatening, prosecutor’s exercise of discretion, the right of self-defense and the duty to behave reasonably, and the merits of statutory mandatory minimum sentences, such as the one imposed on Mr. Bird.

The Austin, Texas police chief, echoing the desires of Mothers Against Drunk Driving and other advocacy groups, has endorsed a brand new category of drunk driving offense based on an even lower level of blood alcohol content (BAC).  This new category of proposed offense in Texas would be called “Operating While Ability Impaired,” and would be intended to address cases in which a driver has a BAC between .05 and .07.  The Austin chief argues that “the new offense would give prosecutors and judges and juries another tool to use” against drivers who drink.  Their argument claims that sometimes it can be hard to get convictions for DWI, so prosecutors may be forced to plea bargain cases in order to get convictions.

Of course, nobody who drives wants to share the road with drunk drivers but local politicians should not be tempted to bring the new law under consideration in Texas to New Hampshire.  Under New Hampshire law, a driver can already be convicted if his ability to drive is impaired to any degree. We all have different internal chemical make ups.  Some of us are not impaired at .05 or even at .08.  Others of us should not be driving after having anything to drink, even if out BAC is .03.  The DWI-law-enforcement-industrial-complex makes no effort whatsoever to distinguish between these different kinds of people.  Under our law, when it comes to breath testing, at .08, everyone is guilty by definition.  For New Hampshire to adopt a law such as the one proposed in Texas would only make this situation worse.