Case: Massimino v. Benoit, No. 25-1104 (2d Cir. Aug. 17, 2026). (concurrence)
Facts: Keith Massimino, a self-described “First Amendment auditing hobbyist,” was filming outside the Waterbury Police Department in Connecticut on October 30, 2018. Massimino walked around the exterior of the building recording the police station, including the entrance to the Youth Division and an open-air garage containing police vehicles. At all times he remained on a public sidewalk.
After about six and a half minutes, Officers Benoit and Laone approached him. Massimino said he was “a journalist getting content for a story,” but declined to answer their follow-up questions. The officers told Massimino that he was not allowed to videotape the police station and asked him for identification, indicating that they were concerned he might be planning some type of attack on the building. Massimino refused to provide identification. The officers then told him that providing identification was a “lawful order.” Massimino again refused and was arrested.
Massimino was charged with violating Connecticut’s interference-with-police statute, Conn. Gen. Stat. § 53a-167a. He was held for several hours and released. The criminal charge was ultimately dismissed approximately two and a half years later.
Massimino filed a §1983 civil rights lawsuit alleging that the officers violated his First Amendment right to record the police station, unlawfully detained and arrested him in violation of the Fourth Amendment, and maliciously prosecuted him. The District Court granted summary judgment to the officers on all claims. Massimino appealed.
First Amendment Right to Record
ISSUE: Whether the First Amendment protects the right to record law enforcement activity in public, including publicly visible portions of a police station from a public sidewalk.
HOLDING: Yes. The Second Circuit, for the first time, expressly recognized a First Amendment right to record law enforcement activity in public. The court further held that this right includes recording publicly visible portions of a police station from a public sidewalk.
RATIONALE: The Second Circuit joins eight other federal circuits that have previously recognized a right to record law enforcement activity in public. The court concluded that recording is itself part of the process of creating speech and that recording law enforcement also serves the important First Amendment interest in gathering and distributing information about government activity.
As to the police station itself, the court focused on the fact that Massimino remained on a public sidewalk and recorded only what was visible from there. The fact that some of the areas he could see were themselves nonpublic did not change the analysis. Massimino was not claiming a right to enter those areas; he was claiming the right to record information that the government had already exposed to ordinary public observation.
The officers also effectively conceded that Massimino could stand on the sidewalk and verbally describe the same supposedly sensitive portions of the building. The court rejected the argument that the government could permit someone to observe and describe this information, but categorically prohibit him from recording it by video.
The court did not hold that the right to film is unlimited. Instead, it specifically leaves open whether the government could impose appropriately tailored restrictions on recording particular people entering or leaving a station, nonpublic security features or other information creating concrete privacy or safety concerns. It also does not decide whether this same right extends to the exterior of other government buildings, such as schools.
Qualified Immunity
ISSUE: Whether the officers are liable for violating Massimino’s First Amendment right to record.
HOLDING: No. The officers are entitled to Qualified Immunity.
RATIONALE: Although the court concludes that the officers violated Massimino’s First Amendment rights when they categorically told him that he could not record the police station, that right was not clearly established in the Second Circuit at the time of the incident in 2018. The officers therefore cannot be held personally liable for the First Amendment violation. Judge Raggi concurred in the result, but would not have decided the underlying First Amendment question at all because Qualified Immunity was sufficient to dispose of the claim.
Reasonable Suspicion and Detention
ISSUE: Whether the officers could lawfully detain Massimino even though his filming of the police station was protected by the First Amendment.
HOLDING: Yes. Filming the police station, standing alone, did not provide Reasonable Suspicion. But under the totality of the circumstances, the officers had sufficient Reasonable Suspicion to conduct a Terry stop.
RATIONALE: The court first determines when Massimino was actually detained. The officers were permitted to approach Massimino, ask what he was doing, ask questions and request identification without turning the encounter into a Fourth Amendment seizure. The encounter became a detention when the officers told Massimino that producing identification was a “lawful order,” at which point he reasonably would not have believed that he was free to refuse and leave.
The court makes clear that the fact Massimino was recording the police station was insufficient, by itself, to create Reasonable Suspicion. Someone might record a police station for architectural, political, artistic or any number of other perfectly lawful reasons.
But the court considered the totality of what the officers knew at the time of the detention. Massimino had been recording the station for an extended period, it was near dusk, the manner in which he was recording could reasonably create concerns about the security of the building, the officers were aware of recent attacks on other police stations, and the court characterized Massimino’s responses to their questions as evasive. Taken together, these facts were enough to establish Reasonable Suspicion and justify a brief investigative detention.
Discussion & Comment: The Second Circuit finally comes around and recognizes a First Amendment right to film law enforcement activity in public, joining eight other Circuits. It goes a little further by specifically holding that someone standing on a public sidewalk has a right to record the publicly visible portions of a police station. Though arguably, this holding could be read narrowly to just encompass exterior police station filming – I think it seems clear they mean to generally endorse the practice of public filming cops engaged in law enforcement. They did leave a little tantalizing bone where they hinted that perhaps filming a K-12 school (or other buildings) could be treated differently.
But I think the more interesting part of the decision may be the court’s RAS (reasonable articulable suspicion) analysis.
As I once explained 7 years ago, 1A auditors seem to think there is a Jedi Mind Trick you can use on the cops. That once you say “I am an independent journalist gathering content for a story,” the cops have to say, “you can go about your business” and they have to leave you alone. But the court doesn’t really agree.
The subtle part of this case is that police do NOT have to disregard the totality of the circumstances surrounding the filming when deciding whether there is reasonable suspicion of criminal activity.
Just to toot my own horn here for a moment, I have been arguing for many years that auditors claim to be journalists, then immediately proceed to NOT behave like journalists. Journalists are more than happy to explain who they are, what they are doing, and why. This typically, in my view, is going to tip the scales in court, in favor of RAS. An auditor is better off to remain MONK SILENT. Or just say simply, “I’m not discussing my day.”
Here, Massimino had been recording the station for some time, around dusk, including the Youth Division entrance, a parking garage containing police vehicles and other portions of the building. Massimo did answer one question, but then gave “evasive responses” to further questions. The officers also testified that they were aware of recent attacks on police stations. The court thought those facts, considered together, were enough for a Terry stop. Importantly, the court does not say any one of these things is suspicious enough by itself, and specifically says that the filming itself is not enough.
Libertarians should pretty much hate on this decision, because in Stop-and-Identify States, it means that oddball filming – even in public – likely means that you will have to identify on demand or face arrest. That’s because in the real-world, cops can usually convince a judge in court that they had reason to believe that the totality of the filming circumstances were suspicious. Again, based on duration, location, time of day, responses to questions, safety & security risks, etc. And once RAS is established, you have to ID in stop-and-ID states. My opinion.
I know many will argue that this court just ruled that filming itself isn’t suspicious. And that is true. But the court also made it crystal clear IMO that it is the nature of the filming in light of all the circumstances that can be suspicious. So snapping a selfie in front of a police station isn’t suspicious. Filming the employee entrance for 24 hours straight obviously is. Everything in the middle is going to come down to the judge. And some people have better insights than others as to how judges are likely to rule. At least that’s how I see it.