Third Circuit Appeals Court Establishes First Amendment Right To Record Police

from the another-circuit-embraces-the-inevitable dept

Early last year, a federal court judge decided filming police officers was not protected by the First Amendment. How the court arrived at this conclusion was by narrowly defining the First Amendment as only protecting "expressive" speech. Simply documenting activity was somehow not covered by the First Amendment, according to the government's theory (the city of Philadelphia, in this case).

According to the district court, expression is key. It was the wrong conclusion to reach, but it helped some Philadelphia police officers escape being held accountable for retaliatory arrests of citizen photographers. Even worse, it created a chilling effect for citizen photographers in the court's jurisdiction, giving them a publish or die be arrested mandate.

At that time, it seemed unlikely the Third Circuit Appeals Court would overturn its own precedential rulings. The Appeals Court had never gone so far as to establish a First Amendment right to record public officials. In fact, precedent had mostly sided with law enforcement officers who had been sued for shutting down recordings. An affirmation on appeal would have resulted in a circuit split that could only be resolved if and when the Supreme Court chose to take up a case directly related to this issue.

Fortunately, the Third Circuit Court has reversed the lower court's finding, at least in terms of the First Amendment. This adds to the list of circuits already viewing recordings of cops as protected speech. The issue appears to be (slowly) resolving itself without the Supreme Court's assistance.

The ruling [PDF] is a fantastic read, at least as far as its handling of the First Amendment goes. The opening makes it clear the lower court screwed this up badly. [h/t Brad Heath]

This case involves retaliation. Richard Fields and Amanda Geraci attempted to record Philadelphia police officers carrying out official duties in public and were retaliated against even though the Philadelphia Police Department’s official policies recognized that “[p]rivate individuals have a First Amendment right to observe and record police officers engaged in the public discharge of their duties.” No party contested the existence of the First Amendment right. Yet the District Court concluded that neither Plaintiff had engaged in First Amendment activity because the conduct—the act of recording—was not sufficiently expressive. However, this case is not about whether Plaintiffs expressed themselves through conduct. It is whether they have a First Amendment right of access to information about how our public servants operate in public.

Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.

This establishes citizen photography as protected speech, no matter what the photographer's intent is. The protection here has very little to do with expression, no matter how much the defendants wish it was. Instead, it has everything to do with access.

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

[...]

In sum, under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas.

In the Third Circuit, cops can no longer expect to shielded from lawsuits related to shutting down citizens' recording efforts.

As was noted by the court, the right likely should have been established at the time the incident took place (2014).

In 2011 the Department published a memorandum advising officers not to interfere with a private citizen’s recording of police activity because it was protected by the First Amendment. In 2012 it published an official directive reiterating that this right existed. Both the memorandum and directive were read to police officers during roll call for three straight days. And in 2014, after the events in our case and the occurrence of other similar incidents, the Department instituted a formal training program to ensure that officers ceased retaliating against bystanders who recorded their activities.

Unfortunately, the court still sides with the officers, stating that precedent from various circuits did not divorce the act of recording entirely from the concept of "expression." At the point the arrests occurred, it may have seemed reasonable to shut down citizens who attempted to record police if they couldn't clearly state an "expressive" reason for doing so. And that's apparently ok even if the officers had received repeated instructions from their supervisors about respecting the public's right to record.

The dissent disagrees with this conclusion. It wasn't just court precedent and the PD's own directives. Officers also should have been aware of the DOJ's directive along the same lines, which was handed down in 2012 to all local law enforcement agencies urging them to respect the public's "right to record."

With all of this, it is indisputable that all officers in the Philadelphia Police Department were put on actual notice that they were required to uphold the First Amendment right to make recordings of police activity. From a practical perspective, the police officers had no ground to claim ambiguity about the boundaries of the citizens’ constitutional right here.

Even absent this wealth of directives, any officer should have "reasonably" known retaliating against citizens for recording in public was the wrong way to handle this.

A reasonable police officer would have understood, first-hand, the significance of this proliferation of personal electronic devices that have integrated image capture into our daily lives, making it a routine aspect of the way in which people record and communicate events. Apart from any court ruling or official directive, the officers’ own lived experience with personal electronic devices (both from the perspective of being the one who is recording and one who is being recorded) makes it unreasonable to assume that the police officers were oblivious to the First Amendment implications of any attempt by them to curtail such recordings.

The upshot is the judicial enshrinement of the right to record police. The downside for the plaintiffs is the officers can't be sued for violating what should have been considered a clearly established right, even before the Appeals Court decision.

The way things are going, the Supreme Court may never have to address the issue. As the presiding judges note (both in the opinion and during oral arguments), the establishment of this right across the nation is inevitable. As more circuits address the issue head-on, the rulings should result in further First Amendment wins.

As a side note, the oral arguments are an amazing watch. The government's lawyer desperately wants the discussion to center on questions of immunity, but the court is far more interested in how he intends to argue speech must be tied to expressive intent to receive First Amendment protections. The fun starts about 19:45 into the recording. By the time a judge brings up the Zapruder recording ten minutes later, you almost feel sorry for the government's legal rep.

Filed Under: 1st amendment, filming police, first amendment, free expression, recording police, third circuit

Arkansas Congressman Who Helped Protect Citizens' Right To Record Police Arrested For Recording Police

from the seems-reasonable dept

While the recording of police activities has been covered here for years, I think we're starting to see what is at least a slight ratcheting down of the drama over the issue. Once almost universally rejected by law enforcement groups, the freedom to record police as they go about their public duty has become more recognized rather than less. That doesn't mean the issue is settled, though, as shown in a recent example in which Arkansas police arrested a state Congressman who had helped push through a state law protecting the rights of citizens to film police.

Officer Jeff Thompson of the Little Rock Police Department arrested Arkansas state Representative John Walker for recording their treatment of a black man who had been put in handcuffs during a traffic stop. Officer Thompson told Rep Walker he had to stop recording or face arrest. Rep Walker said, "Arrest me." Officer Thompson did. Police later dropped charges against Rep Walker, but are continuing with the prosecution of his colleague, civil rights lawyer Omavi Shukur.

Shakur, officers say, had done more than merely be present with a recording device, having at one point supposedly stepped in the way of the officers as they performed their duty. Police reports and statements alike, however, suggest that Rep. Walker merely stood by and filmed the police traffic stop and refused to leave when so ordered. The arresting officer indicates that Walker was told that he would be arrested for simply refusing to leave the area, at which point Walker said "Arrest me."

In other reporting, some of the police that were on site at the time of arrest discuss Walker being purposefully provocative, with one even indicating that Walker likely wanted to be arrested.

Film in another patrol car, taking the driver to jail, has audio of an older officer telling a younger black female officer who'd made the stop about Walker: "His main purpose was to be arrested." Walker, he said, had been "a thorn in the side of the police department" since he joined the force.

Even if we accept this at face value, there seems little value in law enforcement obliging Walker, giving him fuel for his cause and plastering his name all over the news. Particularly when the arrest comes about for his doing something that not only isn't illegal, but is something that Walker personally fought to legalize. Would it be so hard to just let Walker film away and go about your public duty?

Filed Under: arkansas, john walker, little rock, little rock police department, recording police

Police Get Facebook To Kill Livestream Of Standoff Which Ended With Suspect Being Shot To Death

from the controlling-even-the-cameras-they-don't-own dept

A 23-year-old woman, and mother of a 5-year-old child, is dead. She was killed by police officers who came to serve a warrant for failure to appear charges stemming from a March 11th traffic stop. That this ever escalated to the point where bullets started flying is incomprehensible. Then again, much of what the woman, Korryn Gaines, did was incomprehensible.

Gaines apparently considered herself a "sovereign citizen," which meant she chose not to recognize whatever laws she felt weren't worth following -- like registering her vehicle, insuring it, and equipping it with valid plates. Instead, she chose to make plates of her own out of cardboard that made some sort of statement about her sovereign citizen status. The traffic stop on March 11th escalated into an altercation with officers, resulting in more charges being added to the traffic violations.

When the SWAT team arrived August 2nd, Gaines warned the officers she would shoot them if they did not leave.

At about 9:20 a.m., officers knocked on the door repeatedly with no answer, despite hearing a man and woman inside, as well as a crying child, Johnson said. When officers were able to open the door using a key, they saw Gaines sitting on the floor pointing a 12-gauge shotgun at one of three officers and a 5-year-old near her.

Courtney was quickly arrested after running out of the apartment with a 1-year-old boy. Then around 3 p.m., Gaines pointed her weapon at a tactical officer and said, “If you don’t leave, I’m going to kill you,” according to authorities.

At that point, officers fired one round and Gaines fired two rounds in return, Johnson said. Authorities fired their weapons again, fatally striking her. The child was also struck by a round during the exchange but did not sustain life-threatening injuries.

The twist here is that Gaines was livestreaming the standoff, right up until law enforcement asked Facebook to kill the stream. Facebook complied, and possibly the only record of the incident not controlled by law enforcement disappeared with it. The police issued a statement explaining their actions.

“Gaines was posting video of the operation, and followers were encouraging her not to comply with negotiators’ requests that she surrender peacefully,” a spokesperson for the Baltimore County Police Department said. “This was a serious concern; successful negotiations often depend on the negotiators’ ability to converse directly with the subject, without interference or distraction during extremely volatile conditions.”

While the assertions made here may be true, the fact that law enforcement can make third-party recordings disappear is highly problematic. While the full statement shows the Baltimore County PD has asked Facebook to retain the video as evidence and will be seeking a search warrant to access the recording, the fact is that the recording will now be in the hands of law enforcement, rather than the public.

If any video of the standoff was captured with body cameras, it will be a long time before it's made public -- if it ever is. While very few recordings are truly objective, the one recording of the standoff whose existence can be confirmed is now (mostly) gone. And the unanswered question is whether or not the situation would have been handled differently if the officers knew the public was watching.

Facebook's compliance with the request is understandable. I'm sure it has no interest in becoming a live portal for police shootings. It similarly vanished away another live video of a killing by a police officer in Minnesota a few weeks ago, resulting in it harvesting some backlash before it reinstated the recording.

Facebook should be far more hesitant to comply in the future. And if law enforcement doesn't like the new status quo, it has nothing but itself to blame. When creating recordings of incidents like these is left to law enforcement, there's rarely anything to show for it. For one, the recordings remain in hands of law enforcement and are only handed over to the public after lengthy delays and with much reluctance.

For another -- despite the fact that nearly every vehicle and every officer is equipped with some sort of recording device -- when citizens are killed, there's often no recording of the incident to be found, no matter how many cameras were on the scene.

Community activists called on the city to release dashcam and body camera videos from a deadly police shooting last week, but police said a recording of the actual shooting is not available.

Police Supt. Eddie Johnson said the actual shooting was not recorded, although all officers on the scene were wearing body cameras.

[...]

Guglielmi said the body cameras of the two officers who fired into the vehicle were working, but the body camera of the officer who fired the fatal shot was not working.

[A] third officer opened fire, hitting and killing the unarmed 18-year-old. An autopsy revealed O’Neal died from a gunshot wound to the back.

Sure, that one could have been a fluke, but the PD is still refusing to release the video (which led to the three involved officers being stripped of their powers) for at least 60 days. At least there's some footage, even if the actual shooting wasn't caught on tape. In other incidents, there's nothing at all to see, despite there being plenty of potential "coverage."

The college student, John McKenna, was beaten and arrested for assaulting police officers. Cellphone video shot by numerous nearby students clearly showed that the officer attacked McKenna without provocation. When a security camera that should have captured the incident failed to produce any footage, police claimed it had been pointed in another direction. The officer in charge of the security cameras was married to one of the officers accused of beating McKenna.

[...]

Because of one of the agency’s consent decrees with the Justice Department, all of its police cruisers had been outfitted with cameras. Nine cruisers were at the scene of the incident. The county claimed in court filings that there was no video footage of the altercation because all nine dash cameras had coincidentally malfunctioned, or the tapes had been lost.

When it comes to recordings, law enforcement has proven repeatedly it's not up to the job. So, when officers approach third parties to shut down livestreams of volatile situations, these platforms should weigh law enforcement's track record of opacity against its supposed public safety concerns.

Filed Under: baltimore, facebook live, korryn gaines, livestream, police, recording police, sovereign citizen, swat team
Companies: facebook

Yes, You Read That Correctly: China Says It's OK For Members Of The Public To Record The Police

from the well,-look-at-that... dept

As Tim Cushing wrote a few months back, recording the police is a complex and contentious issue in the US. But what about in China? Given the increasing clampdown on the Internet world, it's pretty easy to guess that the Chinese authorities wouldn't take too kindly to members of the public trying to hold the police to account in this way. Easy to guess -- and yet wrong, according to this story in the South China Morning Post (SCMP):

Chinese residents can now record the actions of police ­officers as long as it does not stop them from doing their job.

The article provides a little background to this rather surprising news:

The move is expected to help keep police in check but there were no details on how it will be enforced.

And this is why some of them clearly need to be controlled better:

Environmental scientist Lei, 29, died in police custody in May just 50 minutes after he was ­approached by plainclothes ­officers for an identification check in his neighbourhood.

At first, police said he died of a heart attack, but an autopsy report this month said he died of suffocation from gastric fluid.

The public blamed his death on police handling, with two case officers arrested on suspicion of dereliction of duty.

Although this move might be seen as the Chinese authorities giving new powers to the people against the police, it's probably better thought of as using the people to root out the bad apples of the kind mentioned in the SCMP piece. As such it's of a piece with President Xi Jinping's crackdown on corrupt officials who abuse their power, seen most recently in the sentence of the top Chinese general Guo Boxiong, who was jailed for life for taking bribes.

In other words, while citizens use this new permission to aid Xi in his purge of unwanted elements in the system, they will be welcome to record the police as much as they like. However, if they start making life awkward for the authorities by passing around the "wrong" kind of recordings, we can probably expect this newfound power to be rescinded quite quickly.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: china, police, recording police

Federal Judge Says Recording Police Not Protected By The First Amendment

from the please-inform-all-parties-before-recording-of-your-expressive-intentions dept

Over the years, the nation's courts have moved towards recognizing First Amendment protections for citizens who film public servants carrying out public duties. Nearly every case has involved a citizen arrested for filming police officers, suggesting far too many law enforcement entities still feel their public actions deserve some sort of secrecy -- even as these agencies deploy broader and more powerful surveillance tools aimed at the same public areas where no expectation of privacy (under the Fourth Amendment) exists.

A rather disturbing conclusion has been reached by a federal court in Pennsylvania. Two cases involving people who had their photography efforts interrupted by police officers have resulted in the court finding there is no First Amendment right to film public servants. (h/t Adam Steinbaugh)

U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania issued his ruling in two consolidated cases filed against the city of Philadelphia by citizens whose cellphones were confiscated after they either photographed police activity or were barred from filming police activity.

Neither of the plaintiffs, Richard Fields nor Amanda Geraci, were filming the police conduct because they had a criticism or challenge to what they were seeing. For Fields, he thought the conduct was an interesting scene and would make for a good picture, Kearney said. And for Geraci, she was a legal observer trained to observe the police, Kearney said.

"The citizens urge us to find, for the first time in this circuit, photographing police without any challenge or criticism is expressive conduct protected by the First Amendment," Kearney said.

"While we instinctively understand the citizens' argument, particularly with rapidly developing instant image sharing technology, we find no basis to craft a new First Amendment right based solely on 'observing and recording' without expressive conduct and, consistent with the teachings of the Supreme Court and our court of appeals, decline to do so today."

The court has not yet discussed whether the actions of police in response to the filming violated the plaintiffs' Fourth Amendment rights, leaving that for a jury to determine. But what it does say about the First Amendment isn't encouraging.

According to this decision, the photography must be "expressive" to receive First Amendment protection.

Fields' and Geraci's alleged "constitutionally protected conduct" consists of observing and photographing, or making a record of, police activity in a public forum. Neither uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct.

If taken on face value, this means informing cops that your recording is just a small part of a multimedia campaign highlighting the aggressive tactics of law enforcement or will be Twittered with #BTFSTTG or #BLM or whatever appended. The court apparently feels there's no expressive value to simply recording public servants performing public duties -- which would mean other efforts that routinely go unchallenged by the recorded, like city council meetings, etc., may now be shut down without worrying about First Amendment lawsuits.

Unfortunately, the Third Circuit Court of Appeals hasn't exactly been helpful in protecting citizens against public servants who wish to operate in public without third party documentation. While other circuits have found that the First Amendment "protects the right to gather information about what public officials do on public property," the Third Circuit has yet to challenge qualified immunity assertions claims made in cases involving citizens recording police officers.

One decision carefully weighing the state of the law and noting the competing public and private interests comes from the Third Circuit Court of Appeals in Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010). Kelly was a passenger in a truck stopped for a bumper height violation. When the officer saw Kelly videotaping the contact, he arrested Kelly for a wiretap law violation.

Those charges were later dropped.

Kelly sued.

The court granted qualified immunity to the officer with this instructive explanation:

We conclude there was insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment. Although Smith and Robinson announce a broad right to videotape police, other cases suggest a narrower right. [Other court decisions] imply that videotaping without an expressive purpose may not be protected, and in the Whiteland Woods case we denied a right to videotape a public meeting. Thus, the cases addressing the right of access to information and the right of free expression do not provide a clear rule regarding First Amendment rights to obtain information by videotaping under the circumstances presented here.

This decision will be appealed, but the path to protecting citizen photographers from public officials' attempts to shut them down doesn't appear to run through this Circuit. There's a circuit split on the issue and it would take the Supreme Court to resolve it. As it stands right now, there are Fourth Amendment implications yet to be addressed which, if resolved in favor of the plaintiffs, would at least deter future bogus arrests. But without a finding that affords First Amendment protection to the unadorned act of filming public officials, police officers who abuse their power to shut down recordings will likely be willing to roll the dice on civil lawsuits.

And, as is noted by the earlier Third Circuit Appeals Court decision, no First Amendment protection covers the recording of other public officials in public areas. This lack of protection creates a chilling effect, forcing anyone who can't articulate an expressive intent at the point in time where their act of recording is challenged to seek recourse through an unsympathetic court system. This is a depressing decision in light of the fact that other entities are seeking to have everything from automatic license plate readers to copyright trolling treated as protected expression.

Reporting on public activities of public officials has long been covered under the First Amendment. Gathering documentation is a large part of reporting, even if lots of collected footage is never used. The courts have given news gathering protection, even if there's no clear expressive purpose at the point the footage is collected -- or even after the fact, if the footage is discarded. The Third Circuit refuses to extend this blanket protection to citizens, even as the line between "citizen" and "journalist" has almost been completely erased.

Filed Under: 1st amendment, free speech, mark kearney, pennsylvania, recording police

Court Tosses Bogus Wiretapping Charge Against Man Who Recorded Cops Who Raided His House

from the we'll-assault-you-and-your-house-in-public,-but-please-don't-record-us dept

For many years, law enforcement agencies used (mostly outdated) wiretapping laws to justify arrests and prosecutions of citizens who recorded them during their public duties. For a long time, they succeeded, with Illinois seeing a great many of these thanks to its (unconstitutional) law. That law has since been nullified by the courts, but there are still a few legacy laws out there being abused to shut down recordings of police officers.

Another win has arrived for citizens who play an key part in the law enforcement accountability process. Photography Is Not A Crime reports that New Hampshire native Alfred Valentin has had wiretapping charges against him dismissed. Incredibly, New Hampshire prosecutors tried to use another state's law (via an appeals court decision) against Valentin in hopes of getting the charges to stick.

In an attempt to convict the Manchester man, prosecutors tried to take advantage of the Massachusetts wiretapping law, which is different than New Hampshire’s law.

In Massachusetts, the wiretapping law criminalizes all secret recording of conversations, even those that take place in public.

The prosecution claimed that Valentin secretly audio recorded two Manchester police sergeants by holding his phone by his leg, although it apparently wasn’t so secret that the cops didn’t notice.

The events leading to the failed prosecution of Valentin began with a no-knock raid by Manchester's SWAT team. Valentin had taken in a roommate who, unbeknownst to him, was currently under investigation for heroin trafficking. While Valentin was at work, the police raided his house, firing incendiary devices through his windows and seizing his home security cameras.

Valentin was summoned home by a neighbor who had found his dog wandering the streets. When he arrived, he was greeted by plainclothes officers who refused to identify themselves. The officers refused to show him a search warrant, telling him to "come back in an hour" when a supervisor would be there. Valentin returned to see the supervisor (and warrant) and began recording his interactions with the officers. The officers responded by arresting him for violating the state's wiretapping law.

This arrest was followed up by the police department issuing a press release falsely stating Valentin had been arrested in connection with a heroin trafficking investigation. In fact, he was never a suspect and was never charged with any drug-related violations. Because of this bogus press release, Valentin lost his job. He is now suing the involved officers for over $1 million, citing a list of constitutional violations and libel-related complaints.

The prosecutors invoked Massachusetts law by way of the First Circuit's Glik decision -- one that found citizens have a First Amendment right to record public servants in any area that does not carry a "reasonable expectation of privacy." The New Hampshire court quotes this part of the Glik decision:

"[T]he First Amendment protects the filming of governmental officials in public spaces .... "

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs."'

The state prosecutors, however, focused on this part of the decision.

The State contends the U.S. Court of Appeals for the First Circuit in Glik and Gericke "found that, in the absence of a statutory exception, the First Amendment to the Federal Constitution does not protect an individual who intercepts public officials' oral communications unless ... the act of recording is done openly."

The officers spotted the cellphone, leading to Valentin's arrest, so it seems unlikely he wasn't "openly" recording them. Valentin maintains he was holding the phone at chest level, which would have made it even more apparent he was holding a recording device. No matter which version of the events is accurate, the placement of phone bears no weight on the court's decision.

The State's representation of Glik and Gericke is manifestly incorrect. The question of "openness" did not enter into the First Amendment analysis in either case. In Glik, the plaintiff brought First and Fourth Amendment claims against Massachusetts following an arrest under Massachusetts' wiretap statute for recording police.

In its First Amendment analysis, the Glik Court wrote, "(i]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative." Glik later suggests that the First Amendment does not protect filming that interferes with police duties. The Court, however, explicitly declined to specify further limitations stating, "[t]o be sure, the right to film is not without limitations… We have no occasion to explore those limitations here, however." Likewise, Gericke allows for reasonable restrictions on the right to record police, but never discusses whether such recordings must be open.

The Glik decision's question of "openness" only applies to alleged Fourth Amendment violations. The state then argued that both issues must be tied together, because if a secret recording is permissible under the First Amendment then the resulting arrest would be a Fourth Amendment violation. The state argues that both cannot be simultaneously true. The court points out the flaw in this analysis.

If the First Amendment protects secret recordings, the State argues, there could have been no probable cause to arrest the plaintiff, and so the Court would have had no reason to decide whether the recording was secret. To the contrary, the fact that a criminal charge violates the First Amendment does not mean that the arrest underlying the charge violates the Fourth Amendment. Thus, the Glik's analysis about whether the recording was secret for Fourth Amendment purposes does not show that secret recordings are beyond the First Amendment's protection.

[...]

As such, absent contrary authority from the State, the Court finds that the First Amendment protects secretly filming police in public, for the same reasons that the First Amendment generally protects filming police. The public has the right to gather and disseminate information about the police.

Officers can secretly record citizens in public areas and vice versa. Public areas carry very limited expectations of privacy and any privacy protections that might be implicated are dramatically decreased for public servants performing their duties in public areas. No relevant court decision says otherwise. There is no statutory requirement that citizens inform public servants that they are being recorded in these situations.

With this out of the way, Valentin should be able to proceed with his lawsuit. Violation of his First Amendment rights has been determined by this dismissal. This will allow him to focus on the other constitutional violations listed in his suit, as well as the alleged libelous statements that cost him his job.

Filed Under: alfred valentin, new hampshire, police, recording police, wiretapping

No One Can Bait A Cop Into Doing Something He Didn't Already Want To Do, So Let's Stop Worrying About Activist Recorders

from the punch-UP,-officers dept

Cops and camera-wielding citizens are still getting to know each other and there's been some… awkwardness. Hardly a day goes by that some peace officer isn't caught doing something he or she shouldn't be doing by a citizen armed with a camera. Certainly, hundreds of police officers all over the nation are "caught" doing their jobs professionally as well, but those videos rarely surface, largely because the market for non-outrage remains largely depressed. On top of that, we expect our public servants to behave professionally while on the clock, so video of someone doing their job competently is seldom interesting.

It does tend to present a very one-sided picture of law enforcement. (But, I would argue, not a wholly unrepresentative picture of law enforcement.) Bad behavior makes for more interesting viewing. That's inarguable. This leads to recordings of officers who do their best to stay in control while a camera-wielding citizen does his or her best to push for a negative reaction.

An anonymous reader sent in this video along with the following commentary:

Here's a video example of what police officers have to deal with. It's clear this girl is filming the situation and trying VERY hard to bait the cop into saying or doing something untoward so she can get a viral video (and maybe settlement money).

Puts many of those videos you see into context. What level do people go to in order to get the cops to go off on them?

While I appreciate the point he's making, an officer who "goes off" on someone for this sort of thing doesn't deserve much sympathy. This example only makes the person recording it look like an idiot. The cop observed here is clearly annoyed but isn't willing to lower himself to her level. Good for him. That's how it should be handled, no matter how much "bait" is supplied.

There are a lot of videos of bad cop behavior that have an untold number of minutes excised by the uploader to make it look as though any negative reaction was unprovoked. That's unfortunate, but it's still no excuse for bad cop behavior.

Here are two instances covered previously at Techdirt where those recording did everything they could to generate some a negative response, and in both instances the officers refused to take the bait. These two videos do the same thing the above one does: make the person recording look like a tool.




The job of a law enforcement officer is generally unpleasant. Open-carry activists and "do-gooding" smartphone wielders shouting "brutality" at every slight use of force only make it worse. Because of the amount of power they wield, police officers are held to a higher standard. And they should be holding themselves to this higher standard. Part of that higher standard is not sinking to the level of camera-wielders who are hoping to generate controversy where none exists.

There will always be "trolls," but cops should be able to handle them with a minimum of effort. The interactions between activists and police officers often show cops in the worst light, but that's usually because responding officers can't seem to prevent themselves from trying to seize control of a situation that doesn't demand it.

Open-carry advocates do things like walk along busy thoroughfares with weapons hanging out everywhere. It's perfectly legal. But cops don't like it. So, they try to shut it down. And when they do, they're just taking the bait. There's no law to enforce here -- just a desire to assert authority.

The same goes for the many officers captured trying to shut down First Amendment activity -- like taking photos of government buildings from public streets. Carlos Miller at Photography Is Not A Crime has been arrested several times for this non-offense. So have many of his contributors. They call these events "audits:" checking to see whether local law enforcement and other government employees are aware of their constituents' rights. They fail this simple audit far too often. To make it worse, they tend to get very defensive when informed of their ignorance. That's when things get far uglier than they every should have been. This is "taking the bait" and it's bait that isn't even that attractive: just a person taking pictures of a public building.

So, the anonymous submitter's rhetorical question about "baiting" cops for negative reactions should be answered with, "So what?" Officers should know -- and do -- better.

Look at it this way: would people "audit" local law enforcement if they didn't have cameras rolling to document the outcome? Most likely not. A camera's presence helps protect citizens from abuse or misconduct. It doesn't always work but it's far more protection (and power) than citizens had previous to the rise of camera-equipped cell phones.

Yes, there will always be some idiot who thinks he or she can capture the violence inherent in the system by parking in a fire lane, but there will be thousands more whose "bait" is nothing more than forcing officers to respect the rights of the citizens who pay their salaries.

Officers should be "better" than the people they're policing. Let amateur trolls like this one make fools of themselves. Don't feed into their perceptions by becoming the loud, violent jerk they so very badly want you to be.

Filed Under: activists, baiting, police, recording police

Citizens Looking To Safely Record Interactions With Law Enforcement Have A Couple Of New Options To Consider

from the automated-accountability dept

The ACLU has a "new" app available that allows users to record interactions with the police and automatically upload them to the ACLU's servers to preserve the footage in case the phone is seized… or smashed on the ground.

The app itself is not new, although it is new to California. Previous ACLU apps that serve the same purpose have already debuted in New York (as "Stop and Frisk Watch"), New Jersey (the now-defunct "Police Tape" app that generated 'flash mob' fears all the way across the country in Burbank, CA), Mississippi, Oregon, Nebraska and Missouri.

Each version has been tweaked to comply with local recording laws and presumably more versions are on the way. The Mobile Justice app also provides a handy list of rights citizens have when interacting with law enforcement (subject to law enforcement recognition of those rights, of course) as well as incident forms that can be filled out post-interaction to give the ACLU more detail on the recording itself.

Inarguably, it has been footage obtained by citizens that has blown the lid off police misconduct in this country -- ranging from seemingly routine harassment of camera-wielding citizens to incidents like the death of Walter Scott at the hands of South Carolina police officer Michael Slager, who shot him in the back as he was running away.

If your local ACLU chapter hasn't put together an app to automatically archive recordings of law enforcement interactions, there's another app on the way that will give anyone the ability to capture footage and ensure that, not only will it survive attempts to destroy evidence, but that it will possibly be seen by others as the event unfolds.

[O]ver the course of the weekend, developer Marinos Bernitsas demoed an app that immediately begins recording live audio and video as soon as you tap the app’s icon, but doesn’t actually display the video stream being recorded on the smartphone’s screen.

Meanwhile, instead of having the stream sent out to the public via social networks like Twitter, only designated contacts you’ve previously configured in the app’s settings are alerted to the incident via phone calls and text messages.

Unlike the ACLU's app, Bernitsas' program isn't specifically aimed at police accountability. It's also meant to act as a form of protection against any potentially dangerous interaction. Because it hasn't been crafted with an eye on local recording laws, there's a chance that footage captured could result in charges being brought against the person recording and streaming the incident.

It does have two advantages over the ACLU's app: First off, the app doesn't need to be opened to initiate a recording. Secondly, anyone who grabs the phone will have little clue they're being recorded. The only indicator that anything out of the normal is happening is a red banner across the top of the screen, which may look like nothing more than phone UI customization. The app also makes it possible to capture and stream recordings in areas where coverage is less-than-optimal.

What’s also clever about the app is that even if the user loses their Internet connection, Witness will record video in 10-second chunks and store them locally on the end user’s iPhone. When their connection returns, that video is uploaded to the server.

With the footage going to any contacts the user chooses rather than a neutral party only interested in certain incidents and interactions (like the ACLU), this app holds potential for abuse. One could easily "repurpose" this public safety app to stream sexual encounters, private conversations, etc.

The upside of this downside is that doing so will violate many states' wiretapping laws, which would provide for prosecution of those who use this app for purposes other than what was intended. That the perpetrator creates his or her own damning evidence is helpful and one would imagine captured footage (if still stored at the pass through point) could easily be obtained from Witness' servers with a subpoena. The ACLU notes that footage sent to it is also potentially accessible to law enforcement via subpoenas or other court orders, but does point out that it will fight these requests, rather than simply hand over whatever's requested.

Filed Under: california, police, recording police
Companies: aclu

Texas Lawmaker Wants To Make It Illegal To Film Cops From Less Than 25 Feet Away

from the because-yelling,-shoving,-intimidation-and-confiscation-just-aren't-enough dept

Now that it's pretty much settled that the public has the right to record the police*, legislators are now moving to peel back this begrudgingly "granted" First Amendment protection.

*Exceptions, of course. Far, far too many of them.

Filed by Dallas State Representative Jason Villalba (R), the bill prohibits anyone in public within 25 feet of police to record them. The buffer is even greater at 100 feet, for anyone recording video who is also carrying a gun. Only accredited news organizations, like KENS5, would be allowed to record without the buffer zone.

Guess who gets to decide whether any unaccredited videographers are "too close" to the action? That's right. It'll be the person deploying handcuffs or demanding the camera be shut off/relinquished. It will all be in the eye of the uniformed beholder who's just going to eyeball the distance between him and the unaffiliated bodies of public accountability, and if it's close, just go ahead and call it a crime. A crime with some rather hefty penalties, considering it involves recording public figures in public areas.

Anyone caught filming within the 25-foot radius could be prosecuted for a Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine. For gun-carriers who step within 100 feet, it would be a Class A misdemeanor, punishable by up to a year in jail and a $4,000 fine.

Blogger Ex-Cop Law Student calls it the "Kory Watkins Law," after the open-carry activist, who has filmed many of his interactions with local law enforcement.

This is basically a reaction to the confrontational style of Kory, who has a tendency to get very close to the officers while being loud and armed with either a rifle or a black powder revolver. So Villalba decided that a new law was needed, despite the fact that there is already a perfectly valid law on the book that deals with the issue.

Of course, the "valid" law is one that's already frequently abused: "interfering with public duties." This catch-all has snagged many citizens and their cellphones. Villalba's proposal just gives police officers another way to legally violate the First Amendment rights of others.

Villalba's hardly a neutral party. According to the Dallas Observer, his best man was a police officer. So are many of his family members and friends. This string of tweets issued as the criticism began to roll in shows pretty clearly which side Villalba is legislating for.


There's nothing wrong with having cops as friends (and you can't choose your family members), but favoring a single subset of your constituents in order to -- at least, indirectly -- shield them from accountability isn't something legislators should be doing. They should be doing more to ensure their non-uniform-wearing, non-government employees are better equipped and more empowered to keep their public officials in line. This bill does nothing but create a larger power gap.

As always, it's an outsized "concern" for certain people's safety that is driving the legislation.

Villalba says cops often can't spare the time or attention to put up yellow tape or ask a photographer to step back. "They have the ability to say, 'Step back, please don't interfere,' but a lot of times these situations are in the heat of a law enforcement officer doing their jobs," he said. With HB 2918, "We're just trying to create enough separation, enough space so that officer feels comfortable."

Here's an idea: if they don't have time to push people around, then maybe they shouldn't waste those valuable moments harassing photographers. Most photographers aren't closing the distance between them and cops. It's usually the other way around -- officers approaching people they see filming. 25 feet is "reasonable" but it shouldn't be a misdemeanor and no legislator should be attempting to criminalize First Amendment-protected activity. Interfering with police duties is already illegal and it can be deployed if there's actual interference occurring. If you're being prevented from doing your job (effecting an arrest, etc.), then it's legitimate. If not, then it's perfectly acceptable, no matter how annoying it might be personally.

Ex-Cop Law Student points out the logical flaw in Villalba's "cops just don't have the time" argument:

Uh, Jason? If they are too busy to tell someone to move back, wouldn’t they be too busy to make an additional arrest? Because the purpose of the law is to criminalize the gathering of information that can be used to exercise the right to free speech. The fact that a law is on the books doesn’t magically make people move back, nor does it encourage the police to welcome citizen photographers. On the contrary, it encourages police officers to suppress free speech.

No matter how Villalba might frame it, and no matter how potentially pure his motivations (highly debatable), the fact remains that this law, if passed, will be just as abused as the one already on the books ("interfering with public duties"). In fact, it will be more heavily abused because it gives the recorded the power to control the recordings.

Filed Under: cameras, free speech, recording police, texas
Companies: jason villalba

Illinois Legislature Passes Recording Ban To Protect Public Servants - Not The Public

from the the-fix-that-maintained-the-status-quo dept

Illinois' awful "eavesdropping" law was mostly known for being abused by cops to prosecute citizens who recorded them. This strayed pretty far from the spirit of the law (you know, actual eavesdropping). Courts, including federal courts, declared this interpretation of the law unconstitutional in various decisions and in March of this year, the state Supreme Court overturned the law completely.

Legislators have now pushed through a new version of the eavesdropping/wiretapping law -- one hopefully more compliant with the First Amendment. But those hopes will need to be tempered. The new bill, now resting on the governor's desk, doesn't do much to prevent law enforcement and other public officials from using the law as a shield against recordings.

The first indicator that this bill isn't meant to fix what needed to be fixed lies in its genesis.

[I]t was introduced on Tuesday, Dec. 2, as an amendment to an existing bill on a completely different subject. The amendment removed all of the bill’s previous content and replaced it with the new ban on recording. The House passed it the following day, and the Senate passed it the day after that. So the people who would have cared most about this bill probably didn’t notice it in time to object.

Note that Illinois Policy's writers (Jacob Huebert and Bryan Jackson-Green) refer to the new bill as a "recording ban." They aren't kidding. The language leaves key stipulations open to interpretation.

Under the new bill, a citizen could rarely be sure whether recording any given conversation without permission is legal. The bill would make it a felony to surreptitiously record any “private conversation,” which it defines as any “oral communication between 2 or more persons,” where at least one person involved had a “reasonable expectation” of privacy.

As we know, public officials performing official duties aren't afforded an expectation of privacy. But what happens when an officer enters a home or business? Once out of public areas, do officials obtain an expectation of privacy? What about phone calls to and from public officials? Is the fact that it occurs on a "private" line enough to make any recordings a criminal offense? The bill simply doesn't say, apparently leaving this important distinction up to various courts to decide.

The bill further acts as deterrent against recording public officials by handing out inequitable penalties for violations.

The bill would also discourage people from recording conversations with police by making unlawfully recording a conversation with police – or an attorney general, assistant attorney general, state’s attorney, assistant state’s attorney or judge – a class 3 felony, which carries a sentence of two to four years in prison. Meanwhile, the bill makes illegal recording of a private citizen a class 4 felony, which carries a lower sentencing range of one to three years in prison.

Citizens have long known that laws work differently for the public than they do for their public servants. This legislation goes the extra distance to spell it out in black and white. According to the wording, public officials' privacy is worth more than private citizens' privacy.

Unfortunately, the legislation may pass constitutional muster because the wording can be interpreted to be protective of First Amendment activities -- even as its lack of specificity encourages interpretation to the contrary.

And there's another law enforcement bonus hidden within the bill as well, as the ACLU points out.

Compared to the last version of the Illinois eavesdropping statute, the new statute significantly expands the circumstances when police and informants may record and intercept private conversations and phone calls without all-party consent or a warrant. We know of no evidence that the prior version of the statute, which required police to seek judicial approval, was any impediment to law enforcement in these instances. We are concerned about the expanded number of cases where no judicial officer will provide a check on police.

If this bill goes through -- and there's good reason to believe it will, what with all that cherished "bipartisan support" behind it -- police officers will still be able to use the vague wording of the law in their favor. The lack of clarity invites law enforcement to take their chances on the wheel o' justice and see how the courts interpret the new statute -- a process that goes in motion long after someone's recording has been halted and charges have been filed.

Filed Under: eavesdropping, illinois, law enforcement, recording police