Illegal, illegal, illegal, illegal. That's all reasonable suspicion now. The First Amendment doesn't just protect recording if something dramatic happens. Recording the government during their routine operations is what makes it possible to document misconduct in the first place. We the people shouldn't need a dramatic police encounter before the camera receives constitutional protections. Welcome back to the Lackluster Channel. On August 17th in 2026, the Second Circuit finally recognized that the First Amendment protects recording police activity in public, including publicly visible portions of a police station from a public sidewalk. Unfortunately, the court protected the right while punishing the man who established it. This goes back to a story that happened in 2018. I first covered it in 2020. Keith Massimino spent about 6 and 1/2 minutes recording the exterior of a police station in Waterbury, Connecticut. >> How you doing, guys? Northeast Auditor here. I am in the city of Waterbury, Connecticut. And we're going to perform a First Amendment audit on the Waterbury Police Station. See if they respect our right to film. We're here right now. As you can see, we got a public sidewalk all through here. So, we're going to get some footage of the exteriors and then we'll go around back and get some footage of the back back parking lot. It's funny if they're not going to be happy with us filming cuz they're sure as hell filming us. It's pretty cool. Got a youth division right there on the ground level. >> Officer coming out right there. That's pretty good. No issues so far. So obviously someone walked drove out, saw us there, didn't say anything. So that's what we want to see. Always say in my videos that you know I'm not one of those that's out trying to stir up trouble. Um you know, if if I had it my way it wouldn't make for the best videos, but we would have no [clears throat] contact and people would just leave us alone. Cuz at the end of the day that's what we're all going for, just the ability and the idea that you know, we're not going to get messed with when we try to film. So that's what we want. >> He was on a public sidewalk and when officers approached, he said he was a journalist, but declined to answer additional questions. >> It's cold out. Ooh. Hands are freezing. >> What are you um what are you taping? >> Just getting footage. >> Oh, it's like you just got the building or >> Yeah. >> Any specific reason? >> Just getting content for a story. >> What kind of story? >> It's it's all public so I'm not going to divulge what it is. What's your name and badge number? >> Sergeant Franklin. >> Thank you. What's your uh badge number? >> 738. >> Thank you. >> The officers falsely told him that recording the police station was prohibited and demanded that he identify. And when he refused, they claimed their command was a lawful order and arrested him for interfering with the police. >> You got to you got to ID in here? >> No. >> Yeah, we need ID. >> We need ID. >> For a First Amendment protected activity? >> Well, it's actually a security issue. >> Security issue? >> Yeah, you're video taping the police station. >> I'm getting caught on my journalist getting content for a story. >> Which is fine. So, you have no problem then giving us >> Why would I have to give you my ID for performing a legal activity? >> How do we know it's legal? >> I'm on a I'm on a I'm on a public sidewalk. >> How do we know you're not planning on blowing up the building? >> Ouch. >> Shooting up >> I have no ill will, if that's what you're asking. >> Okay. We don't know that. >> Well, that's a That's the beauty of the Constitution. You don't need to know that, right? Um I'm filming in a public >> Okay, we're legally asking you for your ID. >> Is that Is that that's a lawful order? >> That is lawful order. >> Are you sure? >> Yeah, positive. >> Okay. Well, I'm not going to provide my ID. >> Okay. >> There's no reason I haven't performed any illegal act. I'm on a public sidewalk, as you can see. >> Yes, filming the police department. It's supposed to be secure. We don't want people coming here. >> This is a public building. >> Yes. >> Yes. >> Yes, that that in there is very public. >> It's a public building. We We own this building. >> It's not a public building. >> This is not a public building? >> You can't go in and walk around. >> In the lobby? In the lobby? >> In the lobby. >> Yeah. >> In the lobby. >> This is a public building. I'm filming from the outside on a public space. >> You're not allowed to video tape the police station. >> You most certainly can. >> No, you I can't actually. >> Uh you most I'm a thousand percent sure you can film anywhere outside. Are you sure about that? >> Yeah, absolutely. >> Okay. >> I am. >> You're sure about that as well? >> Yep. >> Okay. Well, I'm not going to provide my ID. I haven't performed any illegal activity. Can you articulate a crime I've committed or >> Reasonable suspicion. >> Of what crime? >> Reasonable sus- I don't know if you're about to blow up the building, if you're setting fire >> you articulate a crime I've committed? >> You're video taping security areas of the police station. >> That's not a crime. So, I'm going to need you to let me know what crime I've committed. >> Reasonable suspicion. You do not have to commit a crime. >> Okay, am I being detained right now or am I free to go? >> Yes, you are. >> Okay, on what under what suspicion of what crime? >> Reasonable suspicion. I don't know >> Are you sure about this? >> I'm positive. >> Okay. >> So, you're not going to >> I would I would ask for a supervisor to come out at this point because Okay. >> Well, well, you provide identification or not? >> Uh I'm not providing any identification. I've done nothing wrong. >> your back and be detained. >> Okay, that's fine. >> I'm going to hold your camera. Please don't turn it off. >> Thank you. After his arrest, he spent several hours in custody and the charge remained pending for 2 and 1/2 years before finally being dismissed. I've made multiple videos about this interaction as it's moved along through the court and as we've established in a previous publication Massimino's suit and as usual, the District Court [music] sided with the police. But when Massimino appealed it forced the second circuit to address a question it had been avoiding for decades. The odd thing was it's not even a difficult question. It's one that has been established in many circuits across the United States already. In fact, [music] Turner V Drivers one that you guys will be familiar with it's very similar to the ruling that we currently got in this case. Of course, that question is do we as citizens have the right to not only record in public, but record the police specifically if the police aren't engaged in any specific police activity. In their recently published opinion, the court correctly held that recording is part of the process of creating speech. It also rejected the argument that Massimino could not record restricted portions of the police station. He remained in a public space and recorded only what the government left exposed to public view. >> Yes, filming the police department is supposed to be secure. We don't want people coming here. >> Yeah. This is a public building. >> Yes. >> Yes. >> Yes, that that and there is very public. >> It's okay. It's public. We we own this building. >> It's not a public building. >> This is not a public building. >> You can't you can't go in there and walk around. >> This is important. We see it a lot in audits where somebody is in a public lobby and the person behind the counter says you can't record behind the counter because I have sensitive data. Okay? Well, now [music] we've determined that it's their job to protect it and we can record it. The court explained their reasoning behind it as the government may build a fence or close a door, but it cannot ban speech. But, there's an interesting thing that happened in this case that is discussed pretty often regarding qualified immunity. Most of the time, qualified immunity requires that two prongs be met. First, the court has to look at the facts of the case and decide whether or not a police officer or public official broke a law or violated the plaintiff's constitutional rights, such as free speech or unlawful search and seizure. But, the second prong is where we've gotten the most trouble. In prong two, the court must decide whether or not that right was clearly established at the time of the offense. Now, they don't have to do these in order, so it's not like, "Okay, yes, there's a constitutional violation, and yes, it was clearly established." What they'll do instead is reverse it. We've seen this happen many times where they decide, "No, that right wasn't clearly established." So, they get qualified immunity. But, that doesn't establish whether or not the constitutional right was violated, and therefore, it is not clearly established even though the court has made a ruling on that specific instance. So, it can happen over and over and over again without the courts ever making any true impact through precedent. In fact, in this case, it's the first time I've seen them take it in order of prong one, prong two, where they've decided, "Yes, there's a constitutional violation, and no, it was not clearly established." Which I disagree with, but they granted the officers qualified immunity while establishing they're not going to get it next time. Essentially, the officers received qualified immunity because the right was not clearly established in the second circuit in 2018. But, that's not all because the court's Fourth Amendment analysis was far more troubling. And I imagine we're going to see a lot more come of this ruling as we do from the first ruling. The court allowed his supposedly evasive responses to help establish reasonable suspicion. Now, think about what that means. The opinion describes the suspicious behavior as Massimino identifying himself as a journalist and then declining to answer questions from the officers during a consensual encounter. The court then combined his silence with his 6 and 1/2 minutes of recording, which is a protected act, the fact that it was near dusk and generalized concerns about attacks on police stations. And he used those four details to create a constitutional trap. You see, a consensual encounter means that police can walk up to anybody without reasonable suspicion and ask questions, and that person has no obligation whatsoever to answer. But the way the court ruled on this is that they can use your refusal to answer to manufacture the suspicion that they originally lacked. Doesn't make any sense. So, after declaring that the detention of Massimino was lawful, the court concluded that Massimino's refusal to identify himself supplied probable cause under Connecticut law. And because of that, all of his remaining claims collapse. His arrest, the seizure of his identification, etc., etc. But the one judge that I just knew was going to be a problem just by looking at her, took things even further. This is Judge Reena Raggi. She argued that the court should not have recognized the First Amendment right at all. In her dissenting opinion, she raised hypothetical concerns of make-believe witnesses, >> [music] >> undercover officers, and zoom lenses, and even elementary schools to tell us that we shouldn't have the right to record in public, even though none of those circumstances existed in this case. Just to examine a little bit of her hypocrisy, we can analyze some of her storytelling from a talk she gave at Harvard Law. >> Judge Reena Raggi, who is about to celebrate her 30th year on the bench, which means that she was appointed when she was 12. >> In one of her cases about a large ship owned by the government, the state wanted to sell it, but the defense opposed the sale of the ship just in case the jurors wanted to personally visit it. But to allow the sale of the ship, she offered to hire a videographer to photograph the ship every which way rather than let the jurors personally visit it. >> wanted to sell it. This is before we went to any trials because apparently nothing is more expensive than to maintain than a ship. The defense attorneys, and there were probably about eight or nine of them at that point, opposed it. And their basis for their opposition was, "Well, they might want a jury to have a viewing of the ship." And I was saying, "What do you need that for? I'll I'll authorize money for a videographer. You can photograph it every which way." "No, Judge, we might want a jury to see the ship." >> This shows that she plainly understands that video can document the appearance, structure, condition, and physical location of a ship, but her concurrence nevertheless questions whether public value exists in recording the exterior of a government facility unless something dramatic is happening. Later, she praises the FBI's thorough use of Walmart surveillance footage to reconstruct a terrorism case. >> I can't emphasize enough for you the mindset change for everybody pre-9/11 and post-9/11. The New York FBI office had a very sophisticated um terrorist squad. Now, I'd been in law enforcement. I had never seen a case investigated as thoroughly, but you need resources to do that. They had traced tracked this defendant, and he had a co-defendant, too, down to North Carolina. They found him on so the surveillance camera of like a Walmart and they took the time that he was on that surveillance camera and they took all the cash register receipts from that time and they found purchases for the component parts of the bomb. >> But when a citizen uses a camera to monitor law enforcement, she suddenly is worried about the zoom features. And that contrast exposes her government-centered view of surveillance. Towards the end of the publication, she states that watching herself on video makes things evident to you in an instant. >> Don't ignore your strengths and your weaknesses. I will say if you ever have the opportunity to participate in a trial practice program where they video tape you, take it because I can tell you things about yourself for hours and it'll be evident to you in an instant if you see yourself on video tape. >> Again, she's acknowledging that recording reveals details and preserves information in a way ordinary observation does not, which means her talk at Harvard Law supports the majority's conclusion that creating a recording is part of the First Amendment speech process. In the end, her talk provides clear evidence that she has an instinctive deference to the state. >> Now, I've been in law enforcement. Having been a prosecutor myself, I try not to second guess the government on what they charge, how they prosecute their cases because they have the burden of proof and they know where the problems are and whether a deal is better than risking an acquittal. >> And that she evaluates legal questions partly through their effect on law enforcement power. But perhaps the biggest flounder is when she's describing the controversial 2016 amendment to criminal rule 41, calling it a small question and a relatively modest rule change. >> Until last year, the federal rules provided that if you wanted a search warrant, the venue for getting that warrant was the location where the place to be searched was. Where's the place to be searched when tomorrow morning the New York Stock Exchange is hacked and no one knows where the hacking is coming from. But federal agents tell us that if they can get into the stock exchanges computers, they can work backwards and try and find out where the hack is coming from. So we had to decide where was the venue for those kind of warrants. And actually, if you think about it, it's a small question. We're not saying you don't need probable cause. We're not saying you don't need particularity. We're just telling you what courthouse to go to. So we decided it was in those circumstances it would be the courthouse where the harm is occurring, which you know, maybe I I hope I've told in a way that doesn't make it sound like that was outrageous. >> That amendment allowed a single magistrate judge to authorize remote access searches of computers located outside the district, including devices spread across at least five different districts or whose locations were concealed. >> But I think the times we're in make everybody very wary of government um intrusion into computers and electronic devices. So when we held public hearings on what I consider to be a relatively modest rule change, we must have had 20 different groups from you know, idiosyncratic views to the ACLU to major um computer companies come and tell us why they thought this rule was a bad idea, that it was the camel's nose under the tent and we should think hard about it. And I will say the only thing that I think was good about it, the rule went into effect anyway, but it really shows why public hearings are good. Um, I let everybody speak for as long as they wanted to. >> [applause] >> The judiciary called it a small procedural question, but Congress blocked it by introducing the Stop Mass Hacking Act. Judge Rakoff is minimizing a significant expansion of practical search authority while treating a citizen's use of an ordinary zoom function as a reason for constitutional hesitation. It's a remarkable double standard. The government remotely searches computers across multiple jurisdictions, a modest procedural adjustment, but a citizen zooms towards a publicly visible police station, this is a troubling technological complication. It's ridiculous. But in the end, I want to make it clear, I don't think her background disqualifies her from deciding a case, but her own words reveal a deeply prosecution-centered view of the legal system. She repeatedly describes government surveillance and prosecutorial authority as necessary tools, while treating citizen oversight as a collection of potential threats. She's out of touch because her caution operates almost entirely in one direction. She demands concrete precedent before protecting the citizens, but accepts speculative threats when preserving police authority. >> Now, I've been in law enforcement. >> She minimized powerful government search tools as procedural details, while treating 6 and 1/2 minutes of sidewalk recording and the ordinary zoom feature on a camera as sources of constitutional uncertainty. It's restraint applied primarily against the expansion of individual rights. Her approach would have been to first grant qualified immunity and then determine whether or or they violated somebody's rights. It's that trick we've seen before. Luckily, it didn't happen here because when it does, it perpetuates qualified immunity's most dishonest cycle. It's a cycle of dishonesty. It just keeps on giving. Qualified immunity, it's what it gives. The courts will grant qualified immunity, claim that a right is not clearly established, refuse to establish it, and then tell the next victim that the same right is not clearly established. And on it goes. You see it, the cycle. Her concurrence demonstrates just how disconnected some judges remain from the practical importance of recording government officials. There's a reason why we do it. Ragghi agreed that the officer should win, but objected to the majority finally recognizing a First Amendment right to record police activity in publicly visible portions of a police station. In fact, in my first video about this incident, I noted that the police station was in the middle of a little town, and there are houses all around it. So, all the Ring doorbell cameras and all the uh people driving by with dashcams on, illegal illegal illegal illegal. That's all reasonable suspicion now, at least if she would have got her way. Because according to her, there was very little police activity happening in the video. Like it matters. Most of it showed just the building, just the entrances, a security camera, I think an open-air parking garage, uh some police vehicles, but the First Amendment doesn't just protect recording if something dramatic happens. We don't need to wait for an arrest or a beating or a shooting before pressing record. Recording the government during their routine operations is what makes it possible to document misconduct in the first place. Judge Ragghi also emphasized that Massimino occasionally used his camera's zoom function, suggesting that he may have captured a bit of view than he was able to with the naked eye. This woman is remarkably out of touch with modern technology. Nearly every cell phone has a camera feature and using an ordinary camera feature from a lawful public sidewalk does not transform protected recording into surveillance. Now, even if it did, argue against Flock, woman? Now, most importantly to this case, the officers never imposed a narrowly tailored restriction to zooming towards a specific security feature. They simply declared that recording the police station was prohibited. Judge Draghi then raised hypothetical concerns about victims, witnesses, confidential informants, undercover officers, youth division entrances, and even public elementary schools. None of those hypothetical cases were before the court. >> You have to like facts. You have to like facts. You have to be willing to investigate facts. You have to learn how to put them together and tell them to another person, either the judge or the jury, in a way that makes sense, in a way that is convincing for the side you're arguing. You know, you have to characterize facts fairly, but I sometimes used to think that if you you hadn't won the case by the time you told the facts, hm, you weren't going to win it. >> The majority specifically left open whether narrowly tailored restrictions could protect identifiable privacy or security interests. While Judge Draghi used future possible controversies to avoid deciding on the straightforward violation that clearly occurred. The officers weren't imposing a narrow restriction to protect sensitive data. Instead, they categorically prohibited recording a police station. Just all together. Just don't No, you can't. Judge Draghi, the Harvard graduate, if we would have went with her approach, it would have preserved the worst feature of qualified immunity. When courts repeatedly say that a right is not clearly established and refuse to establish it at the same time. But, despite that evil woman, and that is just my opinion, don't sue me. The decision finally places officers in Connecticut, New York, and Vermont on notice that we have the right to film in public. Judge Rakoff's preferred approach would have been to grant qualified immunity first without determining whether the officers even violated the First Amendment. But the facts of the case are simple. Mausammano stood on a public sidewalk. He recorded what the government exposed to every pedestrian, every driver, every passenger, every bus rider, scooter enthusiast who passed the building. >> You have to like facts. >> And the officers imposed a categorical prohibition and arrested him for refusing to identify himself when he wasn't lawfully required to do so. >> You have to be willing to investigate facts. >> If those facts aren't sufficient enough for a federal court to define the constitutional right of freedom of speech, it it's difficult to imagine what would be. Judge Rakoff treated the recording as valuable only after a citizen proves that the subject was sufficiently important. But the First Amendment doesn't require any sort of justification like that whatsoever. People don't need the government's permission to document what the government leaves in public view. It's that simple. And we the people shouldn't need a dramatic police encounter before the camera receives constitutional protections. Simple. It's a right, not a privilege. It still allows officers to treat our refusal to justify our own protected conduct as evidence of criminal suspicion, completely missing the point that a person who is legally free to remain silent should not become suspicious merely for exercising their rights. I'm going to leave the full 30-something page thing down in the thing. You know where to find it if you want to read it. It's very interesting. As always, let me know what you guys think of it, especially if you have a dissenting opinion. We'll see you in the next video. >> [music]