          United States Court of Appeals
                      For the First Circuit

No. 12-2326

                          CARLA GERICKE,

                       Plaintiff, Appellee,

                                v.

    GREGORY C. BEGIN, WEARE POLICE CHIEF, IN HIS INDIVIDUAL AND
  OFFICIAL CAPACITIES; JAMES J. CARNEY, LIEUTENANT, WEARE POLICE
   DEPARTMENT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; JOSEPH
KELLEY, SERGEANT, WEARE POLICE DEPARTMENT, IN HIS INDIVIDUAL AND
 OFFICIAL CAPACITIES; BRANDON MONTPLAISIR, POLICE OFFICER, WEARE
   POLICE DEPARTMENT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES,

                      Defendants, Appellants,

              WEARE POLICE DEPARTMENT, TOWN OF WEARE,

                            Defendants.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW HAMPSHIRE
         [Hon. Steven J. McAuliffe, U.S. District Judge]


                              Before

                    Thompson, Selya and Lipez,
                          Circuit Judges.


     Charles P. Bauer, with whom Robert J. Dietel, Gallagher,
Callahan & Gartrell, P.C., Corey M. Belobrow, and Maggiotto &
Belobrow, PLLC were on brief, for appellants.
     Seth J. Hipple, with whom Stephen T. Martin and The Law
Offices of Martin & Hipple, PLLC were on brief, for appellee.
May 23, 2014




    -2-
            LIPEZ, Circuit Judge.           This case raises an important

question about an individual's First Amendment right to film a

traffic stop by a police officer.           Carla Gericke attempted to film

Sergeant Joseph Kelley as he was conducting a late-night traffic

stop.     Shortly thereafter, she was arrested and charged with

several     crimes,   including   a     violation     of   New   Hampshire's

wiretapping statute.         Gericke was not brought to trial.           She

subsequently sued the Town of Weare, its police department, and the

officers who arrested and charged her, alleging in pertinent part

that the wiretapping charge constituted retaliatory prosecution in

violation of her First Amendment rights.

            In this interlocutory appeal, the defendant-appellant

police officers challenge the district court's order denying them

qualified    immunity   on    Gericke's      First   Amendment   retaliatory

prosecution claim.      Based on Gericke's version of the facts, we

conclude that she was exercising a clearly established First

Amendment right when she attempted to film the traffic stop in the

absence of a police order to stop filming or leave the area.             We

therefore affirm.

                                      I.

            We have interlocutory appellate jurisdiction over a

denial of summary judgment on qualified immunity grounds only if

the material facts are undisputed and the issue on appeal is one of

law.    Mlodzinski v. Lewis, 648 F.3d 24, 27 (1st Cir. 2011).         As the


                                      -3-
officers acknowledge, we must accept and analyze Gericke's version

of the facts.      See Campos v. Van Ness, 711 F.3d 243, 245 (1st Cir.

2013).        We offer for context, only where it is uncontested,

Sergeant Kelley's account of events.

              On March 24, 2010, at approximately 11:30 p.m. in Weare,

Gericke and Tyler Hanslin were caravaning in two cars to Hanslin's

house. Gericke was following Hanslin because she had never been to

his house.      Gericke had a passenger in her car, as did Hanslin.

              On South Stark Highway, Sergeant Kelley pulled his police

car behind Gericke's vehicle and activated his emergency lights.

Believing that Kelley was pulling her over, Gericke stopped her car

on the side of the highway.          Hanslin likewise stopped his car in

front    of    Gericke's.       Kelley   parked      his   own   vehicle   between

Hanslin's and Gericke's cars.             Kelley approached Gericke's car,

informed her that it was Hanslin who was being detained, and told

her to move her car.         Gericke informed Kelley that she was going to

pull her car into the adjacent Weare Middle School parking lot to

wait for Hanslin.            According to Gericke's deposition, Kelley

"eventually said that's fine."

              As   Gericke    was   moving     her    car,   Kelley   approached

Hanslin's vehicle.      According to Kelley, when he asked Hanslin if




                                         -4-
he had any weapons, Hanslin disclosed that he was carrying a

firearm.   Kelley instructed Hanslin to exit the car.1

            Once Gericke parked in the lot, she got out of her car

and approached a fence that, along with a grassy area, separated

the lot from the road.      Gericke was at least thirty feet from

Kelley.    Gericke announced to Kelley that she was going to audio-

video record him.      She pointed a video camera at Kelley and

attempted to film him as he was interacting with Hanslin.

            Unbeknownst to Kelley, Gericke's camera, despite her

attempts, would not record.2   Kelley ordered Gericke to return to

her car, and she immediately complied. From her car, she continued

to point her camera at Kelley even though she knew the camera was

not recording.     Significantly, under Gericke's account, Kelley

never asked her to stop recording, and, once she pulled into the

parking lot, he did not order her to leave the area.

            Gericke stopped holding up the camera on her own accord

and placed it in the center console of her car.    Officer Brandon

Montplaisir then arrived on the scene.      Montplaisir approached



     1
      Gericke states that Hanslin was properly licensed to possess
and carry a pistol, and she asserts that at no point did Sergeant
Kelley draw his own weapon.
     2
       The parties do not treat as relevant the fact that Gericke
attempted, but was unable, to record Kelley due to a problem with
her video camera. We agree that Gericke's First Amendment right
does not depend on whether her attempt to videotape was frustrated
by a technical malfunction. There is no dispute that she took out
the camera in order to record the traffic stop.

                                 -5-
Gericke while she was in her car and demanded to know where her

camera was, but she refused to tell him.         He asked for her license

and     registration.     When   Gericke   did   not   comply,   Montplaisir

arrested her for disobeying a police order.               Lieutenant James

Carney then arrived on the scene, as did several civilians in a

car.3       Gericke was transported to the Weare police station, where

the police filed criminal complaints against her for disobeying a

police officer, see N.H. Rev. Stat. Ann. § 265:4; obstructing a

government official, see id. § 642:1; and, the charge relevant here

-- unlawful interception of oral communications, see id § 570-A:2.4

Gericke's camera was also seized.5

               A criminal probable cause hearing was scheduled for May

25, 2010. On the day of that hearing, the town prosecutor declined



        3
       In her deposition, Gericke stated that she thought there
were three people in the additional civilian car that arrived. She
stated that she knew several of the occupants of the car, who she
thinks arrived to "take a look and make sure everyone [was] safe."
        4
      For the purpose of this interlocutory appeal, the parties do
not make an issue of the identity of the officer(s) who charged
Gericke with illegal wiretapping. Therefore, without specificity,
we simply refer to the "police" or the "officers" in describing
those who charged Gericke with illegal wiretapping.
        5
       On November 2, 2010, the police obtained a warrant to search
the contents of Gericke's video camera.          According to the
government, during the search of the video camera, digital video
files were discovered but could not be opened. The camera was sent
to the New Hampshire State Laboratory, which apparently encountered
the same difficulty. Gericke subsequently filed a motion in state
court seeking return of her video camera. The motion was granted,
and her camera was returned after the government's motion for
reconsideration was denied.

                                     -6-
to proceed on the pending charges, including the charge for

unlawful interception of oral communications.                 The prosecutor sent

the matter to the Hillsborough County Attorney, who also did not

move forward with the charges.6

               In May 2011, Gericke brought this action under 42 U.S.C.

§ 1983 and state law against the defendant police officers, the

Weare Police Department, and the Town of Weare.                     In her amended

complaint, she alleged, inter alia, that the officers violated her

First       Amendment     rights    when   they   charged     her    with   illegal

wiretapping in retaliation for her videotaping of the traffic stop.

In May 2012, the officers filed motions for summary judgment,

arguing in pertinent part that they were entitled to qualified

immunity on Gericke's First Amendment claim because there was no

clearly established right to film the traffic stop.

               In a thoughtful opinion, the district court ruled that

the police lacked probable cause to believe that Gericke had

committed illegal wiretapping because "that statute provides that,

for    a     crime   to    occur,    the   victim   of   an    intercepted     oral

communication must have had a reasonable expectation 'that such

communication is not subject to interception under circumstances

justifying such expectation.'              [N.H. Rev. Stat. Ann. §] 570-A:1,

II."        Gericke v. Begin, No. 11-cv-231-SM, 2012 WL 4893218, at *6


        6
       The officers do not attempt to explain why the prosecution
did not proceed, and neither party points to any explanation in the
record.

                                           -7-
(D.N.H. Oct. 15, 2012).           Here, the district court reasoned, "the

officers     had   no     reasonable       expectation       that   their       public

communications     during       the    traffic    stop    were   not    subject     to

interception."     Id.

            The district court denied the officers' motions seeking

qualified    immunity     on    the     First    Amendment    retaliation        claim

stemming    from    the    illegal       wiretapping      charge,      ruling     that

development of the facts was necessary before it could determine

whether the officers were entitled to qualified immunity.                   Relying

on our decision in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011),

the district court stated that, under the "broad holding" there, "a

reasonable officer should have known that a blanket prohibition on

the recording of all traffic stops, no matter the circumstances,

was not constitutionally permissible."               Gericke, 2012 WL 4893218,

at *7 n.4.     The court noted that "the circumstances faced by the

officers in this case were substantially different than those faced

by the officers in Glik."              Id. at *7.        Whereas Glik filmed an

arrest on the Boston Common, the district court recognized that

here the officers faced a potentially dangerous late-night traffic

stop involving a firearm, multiple vehicles, and multiple citizens,

some of whom, according to Kelley, were confrontational.

            However,      the     district       court    reasoned      that      Glik

"recognized that it is clearly established in this circuit that

police   officers       cannot,       consistently    with    the   Constitution,


                                          -8-
prosecute     citizens     for   violating    wiretapping     laws   when   they

peacefully record a police officer performing his or her official

duties in a public area."         Id. at *6.     By extension, the district

court concluded that there was not a clearly established First

Amendment right to record in a disruptive manner the public

activity of police officers. Because the court held that there was

a   genuine     factual    dispute   about     whether   Gericke     had    been

disruptive, the court denied the officers' motions for summary

judgment on the retaliatory prosecution claim stemming from the

wiretapping charge.

            The officers filed this timely interlocutory appeal.              If

the district court was correct that the qualified immunity question

depends on the resolution of disputed issues of fact about whether

Gericke   had    been     disruptive,    we   would   refuse   to    hear   this

interlocutory appeal. See Mlodzinski, 648 F.3d at 27-28. However,

since the officers "accept [Gericke's] version in order to test the

immunity issue," we, in turn, accept interlocutory jurisdiction to

decide the question on Gericke's "best case," which portrays

compliance with all police orders.            See id. at 28

            The issue before us is whether it was clearly established

that Gericke was exercising a First Amendment right when she

attempted to film Sergeant Kelley during the traffic stop.                 If she

was not exercising a First Amendment right, or, on her facts, a

reasonable officer could have concluded that she was not, then the


                                        -9-
officers are entitled to qualified immunity. Our review is limited

to the denial of summary judgment on qualified immunity grounds,

Boyle v. Burke, 925 F.2d 497, 499 (1st Cir. 1991), which we review

de novo, Mlodzinski, 648 F.3d at 32.

                                      II.

             Qualified immunity provides government officials with

"breathing room to make reasonable but mistaken judgments" by

shielding officials from liability for civil damages for actions

that do not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.             Stanton v.

Sims, 134 S. Ct. 3, 4-5 (2013) (internal quotation mark omitted).

We apply a two-prong test in determining whether a defendant is

entitled to qualified immunity.        Glik, 655 F.3d at 81.      We ask "(1)

whether the facts alleged or shown by the plaintiff make out a

violation of a constitutional right; and (2) if so, whether the

right was clearly established at the time of the defendant's

alleged violation."       Id. (internal quotation marks omitted).

             Whether the right was clearly established depends on "(1)

the clarity of the law at the time of the alleged . . . violation,

and   (2)   whether,   given   the   facts   of   the    particular    case,   a

reasonable    defendant    would     have   understood    that   his   conduct

violated     the   plaintiff['s]       constitutional       rights."       Id.

(alternation in original) (internal quotation marks omitted).              The

law may be clearly established even if there is no "case directly


                                     -10-
on point," but "existing precedent must have placed the statutory

or constitutional question beyond debate."              Stanton, 134 S. Ct. at

5 (internal quotation marks omitted).                Our task is to determine

"whether the state of the law at the time of the alleged violation

gave the defendant fair warning that his particular conduct was

unconstitutional."      Glik, 655 F.3d at 81 (internal quotation mark

omitted); see also Macdonald v. Town of Eastham, 745 F.3d 8, 12

(1st Cir. 2014).

           On appeal, the officers argue both that there was no

First Amendment right to film law enforcement officers during the

late-night traffic stop, when Hanslin had a gun and Kelley faced

two cars and four individuals, and that, even if such a right

existed, it was not clearly established at the time of the traffic

stop in this case.

                                   III.

A.   Retaliatory Prosecution for First Amendment Activity

           Gericke claims that her First Amendment rights were

violated because the officers, by filing the charge of illegal

wiretapping, retaliated against her for her attempt to film the

public traffic stop.         It is well established that claims of

retaliation    for    the   exercise   of    First     Amendment   rights      are

cognizable under section 1983. Powell v. Alexander, 391 F.3d 1, 16

(1st Cir. 2004) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle,   429   U.S.   274   (1977)).        In   a    section   1983   claim   of


                                   -11-
retaliatory prosecution for First Amendment activity, a plaintiff

must prove that her conduct was constitutionally protected and was

a "'substantial'" or "'motivating'" factor for the retaliatory

decision, Powell, 391 F.3d at 17 (quoting Mt. Healthy, 429 U.S. at

287), and that there was no probable cause for the criminal charge,

Hartman v. Moore, 547 U.S. 250, 265-66 (2006).7        Retaliation is

always reprehensible, and, regardless of whether the underlying

activity is constitutionally protected, it is obviously improper

for officers to invoke criminal laws for retaliatory purposes.

However,   the   plaintiff's   activity   must   be   constitutionally

protected in order to bring a section 1983 claim of First Amendment

retaliation.8




     7
       In holding that the plaintiff must plead and prove an
absence of probable cause for a retaliatory prosecution claim, the
Supreme Court observed that "[i]t may be dishonorable to act with
an unconstitutional motive and perhaps in some instances be
unlawful, but action colored by some degree of bad motive does not
amount to a constitutional tort if that action would have been
taken anyway." Hartman, 547 U.S. at 260. The Court reasoned that
evidence regarding probable cause "will always be a distinct body
of highly valuable circumstantial evidence available and apt to
prove or disprove retaliatory causation." Id. at 261. On this
interlocutory appeal, the officers have not challenged the district
court's probable cause ruling. Therefore, we treat the lack of
probable cause as a given for the purpose of this appeal.
     8
       Even if the activity is not constitutionally protected, a
state law claim, such as malicious prosecution, might lie if the
elements of such a claim are met. Gericke in fact also brought
such a malicious prosecution claim, which is not before us on this
interlocutory appeal, and the district court ruled that the claim
survived the officers' motions for summary judgment.

                                 -12-
            If Gericke was exercising a clearly established First

Amendment right, then it is in turn clearly established that the

police could not retaliate for such activity by charging her with

illegal    wiretapping       without     probable       cause.        Therefore,    to

determine whether Gericke has a colorable section 1983 claim, we

must analyze (1) whether Gericke was exercising a constitutionally

protected right to film the police during the traffic stop, and (2)

whether that right was clearly established at the time of the stop.

B.   Was Gericke Exercising a First Amendment Right to Film the
Traffic Stop?

            In Glik, the plaintiff filmed several police officers

arresting a young man on the Boston Common.               Glik, 655 F.3d at 79.

Recognizing that it is firmly established that the First Amendment

protects   "a     range    of    conduct"    surrounding        the    gathering   and

dissemination      of     information,      we   held    that    the    Constitution

protects the right of individuals to videotape police officers

performing their duties in public.               Id. at 82.      Gericke attempted

to videotape Sergeant Kelley during the traffic stop of Hanslin.

Thus, the threshold question here is whether the occasion of a

traffic    stop    places       Gericke's   attempted      filming      outside    the

constitutionally protected right to film police that we discussed

in Glik.    It does not.

            In Glik, we explained that gathering information about

government officials in a form that can be readily disseminated

"serves a cardinal First Amendment interest in protecting and

                                       -13-
promoting 'the free discussion of governmental affairs.'"                    Glik,

655 F.3d at 82 (quoting Mills v. Alabama, 384 U.S. 214, 218

(1966)).   Protecting that right of information gathering "not only

aids in the uncovering of abuses, but also may have a salutary

effect on the functioning of government more generally."                    Id. at

82-83 (citations omitted).          Those First Amendment principles apply

equally to the filming of a traffic stop and the filming of an

arrest in a public park. In both instances, the subject of filming

is "police carrying out their duties in public."                     Id. at 82.     A

traffic    stop,   no     matter       the    additional      circumstances,      is

inescapably a police duty carried out in public.                Hence, a traffic

stop does not extinguish an individual's right to film.

           This    is    not   to   say,      however,   that   an     individual's

exercise of the right to film a traffic stop cannot be limited.

Indeed, Glik remarked that "a traffic stop is worlds apart from an

arrest on the Boston Common in the circumstances alleged."                   Glik,

655 F.3d at 85.         That observation reflected the Supreme Court's

acknowledgment in Fourth Amendment cases that traffic stops may be

"'especially fraught with danger to police officers'" and thus

justify more invasive police action than would be permitted in

other settings.         Arizona v. Johnson, 555 U.S. 323, 330 (2009)

(quoting   Michigan      v.    Long,    463    U.S.   1032,     1047    (1983)).9


     9
       In a traffic stop, for example, officers may insist that
passengers exit the vehicle without even a reasonable suspicion
that they were engaged in wrongdoing. Maryland v. Wilson, 519 U.S.

                                        -14-
Reasonable restrictions on the exercise of the right to film may be

imposed when the circumstances justify them. See Glik, 655 F.3d at

84 (the exercise of the right to film may be subject to reasonable

time, place, and manner restrictions); ACLU of Ill. v. Alvarez, 679

F.3d 583, 607 (7th Cir. 2012) (reasonable orders to maintain safety

and control, which have incidental effects on an individual's

exercise   of   the   First   Amendment   right   to   record,   may   be

permissible).

           The circumstances of some traffic stops, particularly

when the detained individual is armed, might justify a safety

measure -- for example, a command that bystanders disperse -- that

would incidentally impact an individual's exercise of the First

Amendment right to film.      Such an order, even when directed at a

person who is filming, may be appropriate for legitimate safety

reasons.   However, a police order that is specifically directed at

the First Amendment right to film police performing their duties in

public may be constitutionally imposed only if the officer can

reasonably conclude that the filming itself is interfering, or is

about to interfere, with his duties. Glik's admonition that, "[i]n

our society, police officers are expected to endure significant



408, 413-15 (1997). A police officer may also request identifying
information   from    passengers   in  a   traffic   stop    without
particularized suspicion that they pose a safety risk or are
violating the law, "[s]o long as the request [does] not 'measurably
extend the duration of the stop.'" United States v. Fernandez, 600
F.3d 56, 57, 62 (1st Cir. 2010) (quoting Johnson, 555 U.S. at 333).

                                  -15-
burdens caused by citizens' exercise of their First Amendment

rights" will bear upon the reasonableness of any order directed at

the First Amendment right to film, whether that order is given

during a traffic stop or in some other public setting.              Glik, 655

F.3d at 84 (citing City of Houston v. Hill, 482 U.S. 451, 461

(1987)). We have made clear that "[t]he same restraint demanded of

police officers in the face of 'provocative and challenging'

speech, must be expected when they are merely the subject of

videotaping that memorializes, without impairing, their work in

public spaces."     Glik, 655 F.3d at 84 (citations omitted) (quoting

Hill, 482 U.S. at 461).

             Importantly,    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 or in place.                    This

conclusion    follows     inescapably   from   the   nature    of   the   First

Amendment right, which does not contemplate self-censorship by the

person exercising the right. See generally Baggett v. Bullitt, 377

U.S. 360, 372 n.10 (1964) ("[T]he conduct proscribed must be

defined specifically so that the person or persons affected remain

secure and unrestrained in their rights to engage in activities not

encompassed    by   the    [restriction]."     (internal      quotation   mark

omitted)); Herndon        v. Lowry, 301 U.S. 242, 259 (1937) ("The

appellant had a constitutional right to address meetings and


                                    -16-
organize parties unless in so doing he violated some prohibition of

a valid statute."); Dean v. Byerley, 354 F.3d 540, 551 (6th Cir.

2004) ("Although the government may restrict the [First Amendment]

right [to use streets for assembly and communication] through

appropriate regulations, that right remains unfettered unless and

until        the   government    passes     such   regulations.").      Such   a

restriction could take the form of a reasonable, contemporaneous

order from a police officer, or a preexisting statute, ordinance,

regulation,        or   other   published    restriction   with   a   legitimate

governmental purpose.

               Under Gericke's version of the facts, no such restriction

was imposed or in place.10          According to Gericke, she immediately

complied with all police orders:            she returned to her car with her

camera when Sergeant Kelley asked her to do so, he never ordered

her to stop filming, and once she pulled into the parking lot, he

never asked her to leave the scene.                Therefore, under Gericke's

version of the facts, her right to film remained unfettered, and a

jury could supportably find that the officers violated her First

Amendment right by filing the wiretapping charge without probable

cause in retaliation for her attempted filming.




        10
        We do not consider whether the wiretapping statute amounted
to a reasonable time, place, and manner restriction because the
officers have not in any way challenged on appeal the district
court's ruling that there was no probable cause for the wiretapping
charge.

                                          -17-
C.   Was the Right to Film The Traffic Stop Clearly Established?

            In   Glik,    we   held   that,    "though   not   unqualified,    a

citizen's   right    to    film   government     officials,    including   law

enforcement officers, in the discharge of their duties in a public

space" was clearly established by the time of the underlying events

in the case.     Glik, 655 F.3d at 85.        Our observation that the right

to film is not unqualified recognized that the right can be limited

by reasonable time, place, and manner restrictions.               Id. at 84.

Gericke's attempt to film Sergeant Kelley during the traffic stop

was unmistakably an attempt to film a law enforcement officer in

the discharge of his duties in a public space.             Therefore, as the

events in Glik occurred well over two years before the events here,

Gericke's right to film the traffic stop was clearly established

unless it was reasonably restricted.

            Under Gericke's account, no order to leave the area or

stop filming was given.           Hence, we need not analyze whether a

reasonable officer could have believed that the circumstances

surrounding this traffic stop allowed him to give such an order.

That hypothetical scenario involving a possible restriction on the

right to film is irrelevant to this interlocutory appeal.              In the

absence of a reasonable restriction, it is self-evident, based on

first principles, that Gericke's First Amendment right to film




                                      -18-
police carrying out their duties in public remained unfettered.11

Under Gericke's account, she was permissibly at the site of the

police encounter with Hanslin.     It would be nonsensical to expect

Gericke to refrain from filming when such filming was neither

unlawful nor the subject of an officer's order to stop.              In the

absence    of   such   restrictions,     a    reasonable   police   officer

necessarily would have understood that Gericke was exercising a

clearly established First Amendment right.

           As we explained above, claims of retaliation for the

exercise   of   clearly   established        First   Amendment   rights    are

cognizable under section 1983.     See Powell, 391 F.3d at 16.            Thus,

under Gericke's version of the facts, any reasonable officer would

have understood that charging Gericke with illegal wiretapping for

attempted filming that had not been limited by any order or law

violated her First Amendment right to film.12           "'[T]he contours of

[the] right [were] sufficiently clear' that every 'reasonable



     11
       In Glik, we recognized that "some constitutional violations
are 'self-evident' and do not require particularized case law to
substantiate them." Glik, 655 F.3d at 85 (citing Lee v. Gregory,
363 F.3d 931, 936 (9th Cir. 2004)). We specifically observed that
the "terseness" of our acknowledgment of a journalist's First
Amendment right to film officials in Iacobucci v. Boulter, 193 F.3d
14 (1st Cir. 1999), "implicitly speaks to the fundamental and
virtually self-evident nature of the First Amendment's protections
in this area." Glik, 655 F.3d at 84-85.
     12
        As we explained in note 10, supra, the officers do not
challenge the finding of the district court that there was no
probable cause to believe that Gericke had violated the wiretapping
statute.

                                  -19-
official would have understood that what he [was] doing violate[d]

that right.'"    Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).           Hence,

at this stage of the litigation, the officers are not entitled to

qualified immunity.13

                                    IV.

           Under Gericke's version of the facts, where there was no

police order to stop filming or leave the area, a jury could

supportably find that the officers violated her First Amendment

right by filing the wiretapping charge against her because of her

attempted filming of Sergeant Kelley during the traffic stop.           It

was clearly established at the time of the stop that the First

Amendment right to film police carrying out their duties in public,

including a traffic stop, remains unfettered if no reasonable

restriction is imposed or in place.       Accordingly, we hold that the

district court properly denied qualified immunity to the officers

on   Gericke's   section   1983   claim   that   the   wiretapping   charge



      13
        Of course, a trial might leave a fact-finder with a
different view of whether Sergeant Kelley ordered Gericke to leave
the area or stop filming. That view, in turn, might affect the
court's analysis of the availability of qualified immunity to the
officers. See Swain v. Spinney, 117 F.3d 1, 10 (1st Cir. 1997)
("We recognize that the immunity question should be resolved, where
possible, in advance of trial.       However, disposition of the
question on summary judgment is not always possible. . . . There
are . . . factual issues, potentially turning on credibility, that
must be resolved by the trier of fact. Only after the resolution
of these conflicts may the trial court apply the relevant law on
objective reasonableness." (citation omitted)).

                                   -20-
constituted retaliatory prosecution in violation of the First

Amendment.

             Affirmed.




                            -21-
