District Court Says You Can (Probably) Photograph Police, But Only With A Regular Camera, Not A Drone
from the also:-plenty-of-deferential-exceptions dept
You have a First Amendment right to film police officers and other public figures during their performance of public duties… except when you don't. Police officers are given the most deference in these matters, despite a handful of circuit courts upholding this right and the DOJ itself stepping in to inform police departments around the nation that, yes, citizens have a right to record police officers in public.
But the "right" is loaded with exceptions, and it's not backed up by circuit court decisions in several states. To date, most courts have given law enforcement officers plenty of leeway to shut down recordings as they see fit and stay one step ahead of accountability.
In February of last year, Pedro Rivera overheard a police scanner call for respondents to a serious traffic accident in Hartford, Connecticut. Rivera, a cameraman for a local news station, headed to the crash site and attempted to gather footage using his personal drone. This drew the attention of responding officers, who forced Rivera to remove himself and his drone from the scene. (They also suggested his employer could stay in their "good graces" by punishing Rivera for hovering by proxy 150 feet above the scene of the accident.)
Rivera sued, claiming the police violated several of his rights, including his First Amendment right to film police officers performing their public duties. Connecticut's federal court has sided with the police officers, in effect declaring that those within the Second Circuit's coverage area don't have a right to film police -- at least not with a drone.
As for his First Amendment claims, the court found that there was no recognized right to record police activity. While other circuits have split on the issue -- there is such a right in the First, Seventh, Ninth and Eleventh circuits -- the Second has never addressed the question, meaning that there could be no clearly established right as needed for the officers to waive their qualified immunity.Specifically, the court seems to have an issue with the type of camera used, rather than the act itself.
The district court also went out of its way to note that, had Rivera even been in a jurisdiction which protected the right to film police activity, he may have fallen outside the scope of those protections. He wasn't standing by with a camcorder, after all, but sending "a flying object into a police-restricted area ... effectively trespassing onto an active crime scene." Similarly, because there was no constitutional violation, the court dismissed Rivera's retaliation complaint, as you cannot retaliate against the exercise of a right that doesn't exist.
Moreover, the Court notes that in cases where the right to record police activity has been recognized by our sister circuits, it appears that the protected conduct has typically involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, the police activity at issue. [...]The case cited quotes Congress as defining "public domain" airspace as somewhere between 500-1000 feet above the ground, depending on location, time of day, weather, etc. In the 1946 case, military planes were buzzing Causby's farm at less than 100 feet above the ground. The Supreme Court found in Causby's favor.
By contrast, here Plaintiff directed a flying object into a police-restricted area, where it proceeded to hover over the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene. See, e.g., U.S. v. Causby, 328 U.S. 256, 266 (1946) (holding that invasions to airspace situated within ―the immediate reaches of land—including airspace so close to the land that invasions of it affect the use and enjoyment of the surface of the land—are in the same category as invasions to the land itself). Even if recording police activity were a clearly established right in the Second Circuit, Plaintiff‘s conduct is beyond the scope of that right as it has been articulated by other circuits.
This raises the question: would Rivera's photography have been protected if it had occurred above 500 feet? The district court has basically declared that an altitude of 150 feet is an "invasion" of the ground below it. Would going higher restore rights? Or would deference to law enforcement make an accident scene off-limits to aerial photography?
This is where older rulings clash with new technology. The court plainly states that it would have viewed Rivera's photography more charitably had he been using a handheld camera, placing him closer to the accident scene than his drone ever was. Somehow, the fact that it was overhead seems to be what's holding the district court back from upholding Rivera's First Amendment rights. A height of 150 feet likely interfered with nothing more than the officers' sense of control. Because the police couldn't "rope off" the sky, they had to do the next best thing: order the flying camera and its operator away from the scene.
The court says the camera "trespassed" into an active crime scene. But cameras do that all the time. The yellow tape may keep observers further away horizontally from crime scenes, but it does not prevent them from observing or filming any visible part of it. This decision gives police control over the skies, even when the circumstances don't demand it. They certainly have every right to ground a citizen's drone if it's interfering with police or medical aircraft, but otherwise it's just another camera -- in this case a camera 150 feet away from the nearest police officer. There's no interference happening here, and yet, the "right" to film police has been limited to only certain earthbound photography equipment -- and even then, still subject to any number of restrictions imposed arbitrarily by police officers.
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Filed Under: drone, filming police, first amendment, journalism, pedro rivera, photography, police
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I think this has already been answered with news helicopters filming car chases, bank robberies, et al... There's still limits, such as they can not interfere with police helicopters and following FAA guidelines: 1000 ft above the highest surface within 2000 ft radius.
As a side note what ever happened to the false no-fly zone put in place by police during the Ferguson fiasco? I thought there was supposed to be a backlash from that.
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Still too vague
I fear that this is going to continue to a sublime level of stupidity.
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Re: Still too vague
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Re: Re: Still too vague
If you could stop someone from doing it in your backyard while they stand on a public street nearby, the cops can stop you from doing it at an active crime scene.
Standing on the street with a camera pointed at you? OK
Reaching a hundred foot pole into your backyard? Trespassing, not OK.
Flying a drone in the airspace above your backyard? Trespassing, not OK.
You own the airspace above your property, cops have control of it when they're working. This is altogether reasonable.
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Re: Re: Re: Still too vague
2. The examples that you talk about with your backyard concern PRIVATE property. A public street is not suddenly private property because the police cordoned off a crime scene. It's still public and you have the right to photograph it. Period.
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Note that we don't actually KNOW that the drone was flying overhead. If it's flying approximately as far away as people might be standing and observing, and they were still concerned about it, then that's silly.
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"Common Sense"
Drivers by have crashed into accident scenes or even police officers at accident scenes and yet common sense doesn't compel us to shut down freeways whenever there's a collision.
Why does your common sense prevail when my common sense says otherwise?
common sense also tells us that (for example) that people in authority are righteous and should be obeyed. And that people of strange colors or smells or custom are bad people and we should throw rocks at them.
So I challenge the validity of common sense as a concept and I challenge anyone's declaration that a given notion might be categorized as common sense. And if there's a conflict between my common sense and your common sense, I, of course, want my common sense to prevail.
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Re: "Common Sense"
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Not crashing is not in the least relevant...
I would definitely be wary of a small device hovering overhead while I was working a crime scene or accident. That is what I believe is objectionable to law-enforcement personnel. Their inability to regulate this would be cause for concern, as it would be easy for an operator to handle their drone from a small distance away, making it difficult to determine exactly where it was being piloted from. I fully expect the police and our other public employees to be held accountable, but feel that having multiple drones overhead (and trust me, if news crews could afford them, there would already be several hovering over every accident/police standoff scene around...) is a hazard to their health and ability to conduct their job duties.
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So your argument is that you don't trust drone flight technology?
I also assume that you think that so long as drones present a hazard they shouldn't be used by responders such as police or firefighters either. Yes?
Incidentally, have we any actual data regarding how many drones have created hazards for responders, or for that matter accidentally injured people? (Accidentally, as opposed to the countless casualties of strikes by armed drones.)
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They probably won't disturb any evidence! They might, but let's punish them after they do!
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If filming is acceptable from one hundred and fifty feet laterally, why is the distance unacceptable vertically?
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Advice to future drone camera operators
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Would they complain?
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Re: Would they complain?
We shoot you in the back and then drop the stolen Tazer next to your cuffed, rapidly cooling corpse!
And if we spot the camera-man, woman, child, drone, what ever we commence to giving you the hardwood-shampoo and siezing the equipment that you were threatning us with, and you are greatfull citizen! Gratefull I say that that is all the attention you have received.
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Re: Would they complain?
The drone operator should have stayed outside of the restricted area.
I think the chilling effects of surveillance are often overlooked when it comes to filming police. The fact they are being recorded will change their behaviour and not necessarily in a positive way.
Imagine an important piece of evidence being near the nether regions of some dead corpse, you think the cop would want to gather such evidence while being recorded? I can see the headlines now, "Local cop rapes corpse! News at 11" with a blurry five second clip with no context.
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Re: Re: Would they complain?
And so are the pedestrians over there.
And so is the cell phone in your hand.
Distraction is a part of life. Learn to deal with it.
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Re: Re: Would they complain?
Your argument would be equally as valid for banning all recording of police. That is to say, not compelling at all.
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The future
Then we're back to traffic law with a vengeance. Who do you charge if there's a drone collision in the air above your head? Who saw the collision, who is "obstructing police work" and who's the innocent bystander whose drone was clunked by some bad driver? (pilot?) Plus there's privacy issues. When the police are collecting bodies or hauling bloody corpses (or live bodies) out off mangled cars, there's got to be some restraint. Keeping people 200 feet away usually works, blocking the view with vehicles and people - but not if they are being photographed from overhead and 100 feet up.
I have to agree that the people have some rights but there has to be some restraint. Staying out of the perimeter airspace unless you are much higher (500 feet seems to be a good start) seems about right.
OTOH, if you can see it from public space you can photo it.
I also wonder about a professional news photographer using a "private drone" for his own purposes. Seems much to much to me like bypassing/sidestepping the rules on commercial use of drones.
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Re: The future
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Also -
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Bullshit.
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Re: Bullshit.
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The police don't suddenly own the property.
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Re: Bullshit.
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Re: Bullshit.
If you cannot enter it, it is not public.
When a public bathroom is locked, it is no longer a public bathroom. It is a locked bathroom.
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Re: Re: Bullshit.
The opposite of a "public area" is not "private property". There are many publicly owned areas that the general public does not have free access to. Military bases are an example that pops to mind, but there are multitudes of others. If you try to go to such places, you are trespassing.
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How exactly do they think they're going to measure it?
Say perhaps, at an angle?
Which cop has the measuring tape that can extend 500 feet straight up to determine if the drone is actually violating their "secure" airspace?
How exactly is this supposed to be measured?
Or do all police now have eyeballs calibrated to measure accurately to 500 feet without necessarily having points of reference?
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Am I missing something here? Since when is the site of a traffic accident "an active crime scene"? Seems to me this fails on two points: it's not "active" because it happened in the past and now it's done happening, and it's not "a crime scene" because it's an accident. (Unless they're using "accident" in the colloquial sense and it was actually a road rage incident or something similar?)
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How about out a window?
Would a security camera on the side of the building be considered inappropriate?
Or even going so far as a tethered drone?
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What about..
A recorder with a telescoping lens and a monopod?
The height advantage of standing on their own car?
A hidden in a bear nanny-cam style recorder.. that they hold like a regular camera?
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One scenario the police might be worried about...
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How does it feel to have the "Iron Boot"
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"...protected conduct has typically involved..."
Since when does typical behavior determine the limits of our rights? These rights are meant to protect atypical behavior because they're meant to apply to atypical circumstances.
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Rights
So now we only have those rights the government chooses to recognize? I thought that was only within 100 miles of the border.
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Talk about a catch 22! Next thing you know cops will state satellites aren't allowed to orbit directly over a crime scene and that they must change their orbital trajectory to 'route around' the crime scene.
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There may be an opportunity here to extort some fees from planes and satellites.
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