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

Wed, Apr 8th 2015 9:43am — Tim Cushing

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.

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.

Specifically, the court seems to have an issue with the type of camera used, rather than the act itself.

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. [...]

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.

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.

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.

No First Amendment Drones (PDF)No First Amendment Drones (Text)

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Filed Under: drone, filming police, first amendment, journalism, pedro rivera, photography, police

54 Comments

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Anonymous Coward, 8 Apr 2015 @ 9:59am

"Would going higher restore rights? Or would deference to law enforcement make an accident scene off-limits to aerial photography?"
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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TheResidentSkeptic (profile), 8 Apr 2015 @ 10:07am

Still too vague
"handheld". So on a tripod counts or not? Helmet mounted? Google Glass? I have a camera on my telescope - I can get some damn fine images and video from a LOT more than 150 feet...

I fear that this is going to continue to a sublime level of stupidity.
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AudibleNod (profile), 8 Apr 2015 @ 10:16am

Re: Still too vague
What about a 100-ft selfie stick? Obviously a 100-ft selfie stick filming the police is ridiculous on its face, given that the target of the camera would at that point be someone other than the holder of the stick. But I think my point is valid.
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bureau13 (profile), 8 Apr 2015 @ 10:22am

Honestly, I don't think this is as unreasonable as people probably want to make it. While unlikely with modern equipment and a pilot who knows what he's doing, it's not impossible for the thing to fly/crash into the scene. At the very least, it's likely that people working the scene might think so. I don't think I have a problem with prohibiting this. I'm more disturbed by the statements that this court seemingly doesn't recognize a right to film police in public. I thought that was clearly established everywhere in the US.
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John Fenderson (profile), 8 Apr 2015 @ 10:26am

Advice to future drone camera operators
Don't hover directly over the police activity. You don't want to anyway, because you won't get the best pictures that way. Instead, hover at a lateral distance equal to however far the cops are making pedestrians stand.
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John Fenderson (profile), 8 Apr 2015 @ 10:27am

Re:
I agree. Additionally, hovering directly over such a scene is a clear violation of best practices (and many municipal codes) that say you should not fly directly over people at all.
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Adam (profile), 8 Apr 2015 @ 10:33am

Re:
Once again, we have to make people violators of things that haven't happened yet. His drone DIDN'T crash so the what-if scenario is invalid. WHAT IF a car passing in another lane swerved into a police officer? So is it illegal now to drive by an accident?
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Spaceman Spiff (profile), 8 Apr 2015 @ 10:34am

Would they complain?
Would the police complain about this if they weren't doing anything wrong?
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bureau13 (profile), 8 Apr 2015 @ 10:39am

Re: Re:
Sometimes common sense dictates rules that should be in place, without seeing the possible outcomes actually occur. Drones have in fact crashed, it's not that outrageous. Plus, as others have indicated, flying directly overhead is probably already against rules and/or guidelines already in place.

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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Deputy Dickwad (profile), 8 Apr 2015 @ 10:49am

Re: Would they complain?
We never 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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sl8ofhand, 8 Apr 2015 @ 10:52am

Not crashing is not in the least relevant...
...in many states there are laws that require motorists to slow down and give stopped emergency vehicles (and road repair crews) a wider 'berth'. This invalidates your argument that this would be making '...people violators of things that haven't happened yet...".

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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Mike A., 8 Apr 2015 @ 10:54am

Re:
Totally Agree. I'm a First Amendment purist, but even I think that filming over an actively investigated crime scene with a drone isn't OK.
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Anon, 8 Apr 2015 @ 10:55am

The future
The annoyance hazard problem is valid. The last thing cops need is drones, or chunks of them, falling on their heads while they are trying to deal with an accident of incident.

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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Mike A., 8 Apr 2015 @ 10:55am

Re: Re:
Yeah, why shouldn't we just allow lookie-loos into crime scenes?

They probably won't disturb any evidence! They might, but let's punish them after they do!
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Anon, 8 Apr 2015 @ 10:57am

Also -
If I'm not allowed to fly my drone onto White House property or over a military base, why would I assume it's OK to do so over an active police crime scene or accident?
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Mike A., 8 Apr 2015 @ 10:58am

Re: Re: Still too vague
You're making this harder than it needs to be.

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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Anonymous Coward, 8 Apr 2015 @ 11:01am

Re: Would they complain?
Yes, its distracting which is enough to interfere with their investigation.

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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Anonymous Coward, 8 Apr 2015 @ 11:02am

Bullshit.
That is NOT trespassing. It is still a public area even if it is cordoned off by the police. It's not suddenly private property. If the FAA had wanted to declare a TFR for the area them maybe but at present I don't think the police have the power to declare those. The only question here that should have been addressed was if the flight actually was interfering with the ability of the officers to do their jobs which it most likely wasn't.
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Anonymous Coward, 8 Apr 2015 @ 11:03am

Re: Also -
Those areas have FAA imposed flight restrictions that prevent that. That has nothing to do with the police.
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Anonymous Coward, 8 Apr 2015 @ 11:07am

Re: Advice to future drone camera operators
That actually depends on how good you are at it. There is a reason news organizations have helicopters with cameras. Sometimes a shot from the air is best.
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Anonymous Coward, 8 Apr 2015 @ 11:07am

Court doesn't understand the difference between an accident and a collision. That is our tax dollar at work.
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Mike A., 8 Apr 2015 @ 11:10am

Re: Bullshit.
#notalawyer
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Anonymous Coward, 8 Apr 2015 @ 11:12am

How exactly do they think they're going to measure it?
So, directly overhead is one thing...but what if it's overhead, yet not directly overhead?

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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Anonymous Coward, 8 Apr 2015 @ 11:13am

Re: The future
I will repeat this because it bears repeating. 1st amendment rights (ie. freedom of the press) is an INDIVIDUAL right that ALL people have - not some privileged group of "professional journalists" that work for an established news organization. The right to film and publish news belongs to EVERYONE.
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Mason Wheeler (profile), 8 Apr 2015 @ 11:17am

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.

...

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."

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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Anonymous Coward, 8 Apr 2015 @ 11:18am

Re: Re: Bullshit.
https://en.wikipedia.org/wiki/Trespass

Trespass to land is today the tort most commonly associated with the term trespass; it takes the form of "wrongful interference with one's possessory rights in [real] property"

The police don't suddenly own the property.
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Anonymous Coward, 8 Apr 2015 @ 11:37am

Re: Re: Re: Still too vague
1. You only own the airspace above your property specific height. Above that it's still public but it is subject to FAA restrictions.

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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Anonymous Coward, 8 Apr 2015 @ 11:44am

Re:
It's active because there is an active investigation to determine if a crime had been committed (traffic violations - including those that result in accidents are misdemeanors) and who if anyone had committed it. So it more clearly would be described as a scene with an active crime investigation.
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Anonymous Coward, 8 Apr 2015 @ 12:07pm

What is worrisome here is that the court in assessing the claim of 4th amendment violation of the officer, the court says that probable cause existed for the officer to suspect him of being guilty of the crime of interfering with the police investigation of the scene. Yet they fail to explain how anything described could possibly be interfering with the police investigation. The simply gloss over that as to assume that an object overhead 150 feet above filming is somehow in their way. How exactly is it possible that it was interfering?
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Anonymous Coward, 8 Apr 2015 @ 12:14pm

Re: Bullshit.
You do not fly radio controlled aircraft over highways, or unsuspecting crowds, and calling it a drone does not change this. Further. if anything they are a higher risk of coming down out of control due to battery capacity issues.
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Anonymous Coward, 8 Apr 2015 @ 12:16pm

Re: Re: Re:
Better yet. Why don't the police arbitrarily issue tickets to all drivers BEFORE they commit a violation and cause a traffic accident just because they might instead of waiting until they actually do! That way there wouldn't be a need for a crime scene at all! Fabulous idea you are onto there.
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Anonymous Coward, 8 Apr 2015 @ 12:19pm

Re: Re: Would they complain?
> Yes, its distracting which is enough to interfere with their investigation.

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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Anonymous Coward, 8 Apr 2015 @ 12:22pm

Re: Re: Bullshit.
Whether or not it is a good idea to do so or not is not the issue. The issue is whether it is legal to do so or not. I would suspect that if it was in violation of an existing law, the court would have cited that. However they didn't which leads me to believe that one didn't exist. So instead the court misapplied a law that did exist to achieve the outcome they wanted. Courts are not supposed to do that.
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Anonymous Coward, 8 Apr 2015 @ 12:29pm

How about out a window?
If I was in an apartment building on the 3rd floor and videoed an arrest at street level in front of my building, would I be in violation?

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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Anonymous Coward, 8 Apr 2015 @ 12:49pm

What about..
A GoPro on balloon...that they are holding the string to?

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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Anonymous Coward, 8 Apr 2015 @ 12:52pm

Re: Re: Re: Bullshit.
I suspect if the police knew the law, they could charge the operator with endangering the public or something. Also, they may not be aware of any laws pertaining to radio controlled aircraft, as the radio controlled aircraft enthusiasts are careful about where they fly, and so called drone are a new phenomenon.
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Anonymous Coward, 8 Apr 2015 @ 2:37pm

Talk about yellow, he shot the dude in the back. If it weren't for a camera he probably would have gotten away with it. Not a good time to be a law enforcement officer in the US, as of late. Not a good time to be a citizen either. May you live in interesting times.
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Anonymous Coward, 8 Apr 2015 @ 2:44pm

One scenario the police might be worried about...
Some cities and counties have police helicopters. Sometimes these helicopters get called to accident scenes to look and advise responding units what to expect. They rarely hover over a scene but circle around it. A drone flying in the same area, even if a distance away, might collide with the helicopter if both pilots are not aware of one another. It would get worse if they called in a helicopter for medical evacuation: those need to land and take off in the area and will circle around at least once before landing.
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Pronounce (profile), 8 Apr 2015 @ 2:48pm

How does it feel to have the "Iron Boot"
Of the U.S. government on your neck?
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Uriel-238 (profile), 8 Apr 2015 @ 2:50pm

"Common Sense"
Whose 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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Uriel-238 (profile), 8 Apr 2015 @ 2:55pm

So your argument is that you don't trust drone flight technology?
I take then that once drones prove themselves reliable enough to not crash into crime scenes (even when hovering over one), or do so sufficiently rarely, that you're okay with them?

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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Uriel-238 (profile), 8 Apr 2015 @ 2:58pm

Re: Re:
Is filming from a nearby building by telescopic camera acceptable? Is filming from a drone that isn't directly over the crime scene acceptable?

If filming is acceptable from one hundred and fifty feet laterally, why is the distance unacceptable vertically?
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Uriel-238 (profile), 8 Apr 2015 @ 3:09pm

"...protected conduct has typically involved..."
...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

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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nasch (profile), 8 Apr 2015 @ 6:30pm

Re: Re: Would they complain?
I can see the headlines now, "Local cop rapes corpse! News at 11" with a blurry five second clip with no context.

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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JMT (profile), 8 Apr 2015 @ 6:34pm

Re: Re: Advice to future drone camera operators
And helicopters with cameras do exactly what John suggested.
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nasch (profile), 8 Apr 2015 @ 7:48pm

Rights
the court found that there was no recognized right to record police activity.

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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Anonymous Coward, 8 Apr 2015 @ 9:38pm

Hahah! Didn't the FAA just pass drone laws stating that civilian drones can't fly higher than 500 feet? Didn't Congress also state that 'public airspace' is between 500-1000 feet?

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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Anonymous Coward, 9 Apr 2015 @ 4:43am

Re: Re: Re: Re: Bullshit.
You just made his point why his 4th amendment claims are valid. The police have to show that they have probable cause for an actual crime not "you are probably guilty of something but I'm not sure what." It's the whole reason the 4th amendment exists in the first place.
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Anonymous Coward, 9 Apr 2015 @ 4:54am

Re: Re: Re: Advice to future drone camera operators
The reason helicopters don't hover directly over has to do with how the camera is usually mounted and the operator needing to be able to see what he is doing.
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Anonymous Coward, 9 Apr 2015 @ 7:29am

Re: "Common Sense"
Common sense is now an oxymoron.
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Anonymous Coward, 9 Apr 2015 @ 8:35am

Re:
Below 500 feet the airspace belongs to the owner of the property below it. In this case, that is public property which is still fair game. Above 500 feet is regulated by the FAA below that it isn't except for specific areas that are restricted.
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Anonymous Coward, 9 Apr 2015 @ 5:39pm

Re: Bullshit.
"It is still a public area even if it is cordoned off by the police."

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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Drunkard, 9 Apr 2015 @ 6:58pm

The police now control the airspace above a crime scene. Do their rights extend indefinitely or are they capped off and say 50,000 feet.
There may be an opportunity here to extort some fees from planes and satellites.
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John Fenderson (profile), 10 Apr 2015 @ 8:35am

Re: Re: Bullshit.
Correct. I wanted to address the rest of that AC's comment, too: "It is still a public area even if it is cordoned off by the police. It's not suddenly private property."

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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