Legal to film, legal to arrest
On the evening of October 30, 2018, a man named Keith Massimino walked around the outside of the Waterbury, Connecticut police department with a camera. He stayed on the public sidewalk the whole time. About six and a half minutes in, two officers came out to ask what he was doing. He said he was "a journalist getting content for a story" and declined to answer their follow-up questions. They told him he was not allowed to videotape the police station, demanded his ID, called the demand "a lawful order" when he refused, and arrested him when he refused again.
He was charged with interfering with an officer under Connecticut General Statutes § 53a-167a, held for several hours, and released. The charge hung over him for roughly two and a half years before it was dismissed. He sued the officers, and last week the Second Circuit decided his appeal: Massimino v. Benoit, decided August 17, 2026.
He lost everything. And the strange part is that he lost while being told, in the same opinion, that he had been right all along.
The right the court found
Start with what the court actually did, because it matters. For years the Second Circuit had ducked the question of whether the First Amendment protects recording the police in public. Eight other circuits had said yes, starting with the Ninth back in 1995 and including well-known cases like Glik v. Cunniffe in the First Circuit. The Second Circuit has now joined them, and its reasoning is worth reading. Recording is part of making speech, the way writing a book is. Speech about the government sits at the very top of what the amendment protects. And the public has a right to gather information about the people who police it.
The court went further than the general principle. It held that the right covers exactly what Massimino was doing: filming the publicly visible outside of a police station from a public sidewalk. The city argued that some of what he filmed was sensitive, like the Youth Division door and a parking garage with police vehicles in it. The court's answer was blunt. Everything he recorded was visible to any passerby standing where he stood. If the government wants to keep something private, the opinion says, "it may build a fence or close a door — but not ban speech."
The officers had even conceded that Massimino could have legally stood on that sidewalk and described everything he saw. Their position was that he just couldn't record it. The court pointed out the First Amendment draws no such line.
So far, a clean win for the guy with the camera. Here is where it turns.
The right nobody had to know about
The officers claimed qualified immunity, the doctrine that shields officials from damages unless they violated a right that was "clearly established" at the time. The court agreed with them. In 2018, it reasoned, this circuit had never recognized the right to record police, so a reasonable officer in Waterbury would not have known that ordering Massimino to stop was unconstitutional.
That reasoning is harder to swallow than it sounds. The court's own test says a right can be clearly established by "a robust consensus" of other circuits even when the Second Circuit itself has not spoken. By October 2018, the count stood at roughly eight circuits to zero. One of them, the Fifth in Turner v. Driver, had dealt with almost the identical situation the year before: a man filming a police station from a public sidewalk. Eight circuits, no disagreement, one of them on all fours. The panel still concluded the right wasn't clear enough, partly because Massimino filmed some areas the public couldn't physically enter, and a reasonable officer might not have appreciated that what matters is public view, not public access.
Notice the asymmetry. The officers told Massimino, flatly and on camera, that recording the station was illegal. The court's own footnote says the video establishes they "believed it was unlawful for Massimino to record the police station under any circumstances." They were wrong about the law, and the law forgives them for it. Massimino was right about the law, and it did not help him at all.
The suspicion was made of protected activity
The Fourth Amendment half of the case is where the circularity really shows. The court, to its credit, states plainly that filming a police station cannot by itself create reasonable suspicion. People film buildings for architecture, for art, for politics. So what turned this stop into a lawful detention?
The court's list: he recorded for an extended time, it was near dusk, the officers knew of recent attacks on other police stations, and he gave "evasive" answers to their questions.
Look at those ingredients. The extended recording is the protected activity itself, just more of it. Dusk is when evenings happen; the stop began around when any after-work errand would. The attacks on other stations had nothing to do with him. And the "evasive" answers were his decision not to answer police questions, a choice the Supreme Court has addressed head-on. In a voluntary encounter you may refuse to answer and go about your business, and under Florida v. Bostick that refusal, "without more, does not furnish the minimal level of objective justification needed for a detention or seizure." Strip out the things he was legally entitled to do and what remains is a man standing on a sidewalk at dinnertime.
Take the officers' stated worry seriously for a moment. They told Massimino they were concerned he could be planning an attack on the building. That is a fair thing to wonder about, and the law fully entitled them to walk up and ask. But consider what was actually in front of them once they did. Nothing in the court's account mentions a weapon, or any attempt to conceal himself, his camera, or what he was doing. He filmed openly, for six and a half minutes, on a public sidewalk outside the station's front entrance, and when asked, said he was a journalist. Meanwhile, Google and Apple drive camera cars past every police station in the country, recording everything visible from the road, and nobody runs out to demand the driver's papers. What separated Massimino from the Street View car was not what the camera captured. It was that he declined to explain himself, and that is the one ingredient the Supreme Court has expressly said cannot go into the suspicion pot.
Nobody disputes the baseline rule here. Since Brown v. Texas in 1979, police cannot compel you to identify yourself without reasonable suspicion of a crime. The court didn't abolish that rule; it did something quieter. Connecticut's supreme court has read § 53a-167a to mean that refusing to identify yourself during a legitimate stop can itself be the crime of interfering with an officer. So once the stop was blessed, the refusal to show ID became the probable cause, the probable cause justified the arrest, and the same probable cause sank the malicious prosecution claim. His silence ended up doing double duty: it helped create the suspicion that made the ID demand compulsory, and then it became the crime. The protection Brown promises is still on the books. It just got easier to talk yourself around, because the quieter you are, the more suspicious you become.
This is the part that bothers me most. In the plain-view world of the Fourth Amendment, the government doesn't get to complain when you observe what it leaves exposed. The First Amendment half of this opinion embraces that logic: build a fence or accept the cameras. The Fourth Amendment half then treats sustained attention to those same exposed areas as a building block of suspicion. The two halves of the opinion are looking at the same six minutes of video and describing different men.
What actually changed
One judge on the panel, Judge Raggi, would not have declared the right at all. Her concurrence argues the court should have granted immunity and stopped, leaving the First Amendment question for another day, and she raises fair questions about where the majority's plain-view logic leads. Can you film the entrances and security cameras of an elementary school from the sidewalk? The majority expressly declined to say.
But the majority explained why it refused to stay silent, and this is the part worth holding onto. If courts resolve every one of these cases on "not clearly established" and never rule on the right itself, the right can stay unestablished forever. Officers keep getting immunity because no court ever said they were wrong, and no court ever says they were wrong because officers keep getting immunity. The Supreme Court flagged that trap in Pearson v. Callahan, and this panel deliberately stepped out of it.
So Massimino walks away with nothing: arrested, prosecuted for two and a half years, and told at the end that the Constitution was on his side in a way no one was obliged to know. That is a genuinely bad outcome, and I don't think the opinion's closing line about scrutiny being "essential" to policing softens it much.
The next person, though, is in a different position. As of August 17, 2026, the right to record the police in public, including the outside of a police station from a public sidewalk, is clearly established law in Connecticut, New York, and Vermont. The immunity that saved these two officers is spent. Rights in this country often get built exactly this way, at the expense of the person who tested them, and it is fair to ask why the person who was right had to pay for everyone else's clarity.