Recording the Police: Husein Lokhandwala. Media Law and Ethics

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Derek Dawson
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1 Running Head: RECORDING THE POLICE 1 Recording the Police: An Analysis of our Rights to Film Public Officials Through Existing Cases Husein Lokhandwala Media Law and Ethics

2 RECORDING THE POLICE 2 Only a few weeks ago, in Dallas, an unarmed Black 15-yr old was shot dead. This is only the most recent of long list of events that have come to the forefront of media attention. In the last few years, there has been a surge of scrutiny toward police officials and accusations of systematic racism and prejudice towards the black community. This has become apparent in recent years because of the easy access we have today to filming equipment and social media. The proliferation of videos of police brutality have sparked a contentious debate on the unchecked powers of police officials. In the past few years there have been several district and circuit level court cases, in which citizens have been detained for the recording of police officers. There has never been a case that has reached the supreme court, however, several cases have been heard on a circuit level. There is no explicit provision in the constitution stating whether or not the right to record public officials, like police officers is protected under the first amendment. This paper takes a look at several of the court cases that have come before both circuit and district level and explores the evidence and reasoning in the rulings. The majority of rulings made on this matter have been in the circuit courts. While there is strong public consensus that recording is protected, there is debate as to its intricacies. The cases that have made ruling on this matter are split into three categories: rulings that said recording of police officers is a form of free speech protected under the First Amendment, Court cases that ruled in favor of qualified immunity, and a court case that rejects that recording of police officials is protected under the First Amendment. In order to explore these cases, we need to first understand the First Amendment and the limits of its protections and how it applies to recording.

3 RECORDING THE POLICE 3 First Amendment The First Amendment states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press (U. S. Const. amend. I). This like many parts of the constitution seems over broad and difficult to quantify in the countless scenarios of speech that is encountered. In a landmark case Mills v. Alabama, a case about electioneering, Justice Black writes, There is practically universal agreement that a major purpose of the First Amendment is to protect the free discussion of governmental affairs" (Mills v Alabama, 1966). Under that assumption recording of public officials to keep the powers of the government in check, falls strongly under the first amendment. While a citizen silently recording a police arrest doesn t not constitute speech in a traditional sense, the First Amendment extends to much more than verbal speech. In Texas v Johnson, the landmark case of flag burning and symbolic speech, Justice Brennen writes that speech extends anything that is sufficiently imbued with elements of communication (Texas v Johnson, 1989). There is no federal or state law that explicitly states that it is illegal to record police officers. However, there are several laws in place under which people are arrested for recording police officers. Privacy and Wiretapping Although it may seem that the recording of public officials should be protected and there isn t much basis in it being restricted speech, several of the arrests have been made under laws of the Fourth Amendment. In the landmark case of Stanford v Texas a case against unlawful search and seizure Justice Stevens wrote, What is significant to note is that this history is largely a history of conflict between the Crown and the press (Stanford v Texas, 1965).

4 RECORDING THE POLICE 4 Technology has changed drastically however, and the line between journalist and private citizen is heavily blurred. The widespread use of cellphones and other recording devices means that many of the images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper (UCLA Law Review, 2016). The press can be redefined to be every private citizen caught in the middle of an event with a recording device and the police can be defined as an extension of the crown. This interplay between the First and Fourth amendments play an essential role in understanding the issue at hand. Under the fourth amendment there are two contentious laws under which citizens have been arrested. In addition to that, a defense often used by police departments is called Qualified Immunity Privacy. Protected under the first amendment is a citizens expectations of privacy. There are two types of expectations of privacy. Subjective expectation of privacy is a certain individual's opinion that a certain location or situation is private. The objective, legitimate, reasonable expectation of privacy An expectation of privacy generally recognized by society (Garner & Black, 2016). Each state defines its own parameters of privacy. Twelve states California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington require the consent of all parties for you to record a conversation. Most of these states, except for Massachusetts and Illinois have ruled that the expectation of privacy does not apply to on-duty police (Silverman, 2013). Since citizens are protected in several states from recording the police Wiretapping. Wiretapping is a form of eavesdropping where a third party intercepts and records a communication between two or more parties (Garner & Black, 2016).

5 RECORDING THE POLICE 5 Wiretapping clauses and laws are meant to protect private conversations from invasion. However, the arrest of an individual in public does not constitute as wiretapping. The wiretapping statute was not intended to protect people, and especially not public officials doing their jobs, who are out in public speaking where they do not have a reasonable expectation of privacy. It was intended to protect truly private conversations, held out of easy earshot of others (Glik v Cunnife, 2011). This is explored further in cases in which plaintiffs were arrested under these laws. Qualified Immunity. In cases of police recording arrests, when the charges are dropped, citizens have the right to file a civil action lawsuit against the police department under 42 U.S. Code Officers have various defenses available to assert in their defense. In addition to the tradional defenses, law enforcement personnel are protected by the doctrine of qualified immunity. In 1982 the Supreme Court provided the modern standard for determining whether a government employee is entitled to qualified immunity. Courts can dismiss a case on qualified immunity grounds if: (1) a constitutional right was not violated or (2) the right was not clearly established (Schott, 2012). Circuit Split Most of the cases regarding the recording of police, have been Circuit court cases. However, the decisions have not been consistent across the circuit courts. Both the First and Third Circuits have recently ruled on whether the right to record the police is clearly established, each reaching a different conclusion: in Glik v. Cunniffe, the First Circuit found the right clearly established and in Kelly v. Borough of Carlisle, the Third Circuit found that it was not.

6 RECORDING THE POLICE 6 The following are some cases not discussed in this paper in detail, but follow the similar structures to the cases below: Fordyce v. City of Seattle is a case in the United States Court of Appeals for the Ninth Circuit. Fordyce was arrested while filming police during a protest. He was arrest under the Washington state Privacy law. The court held that a private citizen could film police conduct at a protest because the First Amendment protects the "right to film matters of public interest" (Fordyce v City of Seattle, 1995). Szymecki v. Houck is a case in the United States Court of Appeals for the Fourth Circuit. Syzmecki was arrested for recording a police officer in the city of Norfolk. The court ruled that, The right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct. (Szymecki v. Houck, 2009), thus dismissing the cases in summary judgment under qualified immunity Glik v Cunnife Simon Glick, an attorney, was walking Boston Commons on October 1st, He saw 3 police making an arrest. Cunniffe along with other bystanders believed the officers were using an excessive amount of force and were hurting the person they were trying to arrest. Glik then began to record the encounter on his cellphone. Glik was about 10 ft away from the incident but did not interfere with the arrest. After the arrest one of the officers turned to him and said "I think you have taken enough pictures"; to which Glik said, "I am recording this. I saw you punch him" (Glik v Cunniffe, 2011). The officers then proceeded to arrest Glik under the Massachusetts wiretapping law. Glik was charged with wiretapping, disturbing the peace, and aiding in the escape of a prisoner. He was taken to Police station where his cell phone and a computer flash

7 RECORDING THE POLICE 7 drive were held as evidence. Before heading to trial, the Commonwealth of Massatusets dropped the charges aiding in escape of a prisoner, prior to the trial. The Boston Municipal court then dismissed the charges for the other two counts stating that there was no probable cause for wiretapping. After the dismissal of the charges, Glik files a complaint in the Internal afairs of the Boston Police Department, however they did not investigate the complaint. Glik then. Represented by the American Civil Liberties Union, filed a civil rights lawsuit against the officers and the city, alleging violations of his First and Fourth Amendment rights. He claimed that being arrested for recording violated his first amendment right and the confiscating of his recording was an unlawful search and seizure and a violation of his Fourth amendment right. The officers, based on qualified immunity, moved for dismissal. Qualified Immunity shields government officials from liability, unless their actions are found to violate an individual's federal constitutional rights. This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate clearly established law" (Schott, 2012). The District Court denied the motion of qualified immunity stating, this First Amendment right publicly to record the activities of police officers on public business is established (Glik v Cunniffe, 2011). The officers the filed an interlocutory appeal which is an appeal of a ruling by a trial court that is made before all claims are resolved as to all parties (Garner & Black, 2016). Glik s case is considered one of the first cases to tackle police recording in the cellphone era. The court and noted that, the principle of qualified immunity balanced the need to hold public officials accountable with the need to shield such officials from harassment on account of their public duties (Glik v Cunniffe, 2011). The court therefore applied a two-part

8 RECORDING THE POLICE 8 test: first, did the facts alleged by the plaintiff show a violation of a constitutional right, and second, was the right clearly established at the time of the violation. For the first prong, the court noted that "we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties" and held that Glik had a constitutional right to videotape a public official in a public place (Glik v Cunniffe, 2011). The court noted that this was not limited to reporters and journalists, but a right of all citizens, subject to reasonable limitations of time, place and manner. None of these limitations applied in this case. For the second prong, the court looked at whether the right to videotape was clearly established at the time of the arrest. The court noted that the state of the law at the time of the alleged violation gave the defendant[s] fair warning that [their] particular conduct was unconstitutional (Glik v Cunniffe, 2011). The court opined that some constitution violations are "self-evident" and the right to film public officials in a public place was clearly established. In order to determine of Glick s Fourth Amendment right was violated the court noted that an arrest must be based upon probable cause. Glik argued that the officers lacked probable cause when they made the arrest, while the officers argued that they in fact did have probable under Massachusetts state law wiretap statute. However, in order to be a wiretapping claim, the court required that the recording be made secretly. Since the camera was in plain sight, a recording from that camera cannot be considered "secret" under state law (Glik v Cunniffe, 2011). Since the original complaint stated that Glik had openly recorded the officers, the recording was not made in secret, and that therefore there was no probable cause and Glik s Fourth Amendment rights were violated. Kelly v Borough of Carlisle

9 RECORDING THE POLICE 9 On May 24, 2007, police officer David Rogers pulled over a truck driven by Tyler Shopp in Carlisle, Pennsylvania. The passanger in Shopp s car was Brian Kelly. He began to record Rogers with a handheld video camera in his lap. The officer, after retrieving Shopp s license, registration, and insurance card, completed the speeding citation at his vehicle and then returned to Shopp s truck. Only at that point, the officer claimed, did he notice that Kelly was recording him (Kelly v Borouhgh of Carlisle, 2010). The officer then concluded that Kelly s recording violated the Wiretapping and Electronic Surveillance Control Act of Pennsylvania. He ordered Kelly to turn the camera over to him, and Kelly complied. He then proceed to call the Assistant District Attorney to verify if Kelly s recording violated the Wiretap Act. The DA reviewed the statute and approved the arrest. Rogers, with assistance from additional officers who responded to his call for a backup unit, arrested Kelly. Kelly spent twenty-seven hours in the Cumberland County Prison, since he was unable to make bail. A magisterial district judge approved Rogers s criminal complaint and affidavit of probable cause (Kelly v Borough of Carlisle, 2010). However, the District Attorney dropped the charges against him. Kelly then filed a civil law suit under the, aforementioned 42 U.S code 1983, claiming, that the arrest had violated his First and Fourth Amendment rights. Rogers, the officer, then filed for summary judgment. The district court granted Rogers s motion for summary judgment on all constitutional claims, ruling that he was entitled to qualified immunity. The court concluded that there was no clearly established right to videotape a police officer during a traffic stop. Regarding Kelly s Fourth Amendment claim of false arrest, the court found that a reasonable officer acting in Defendant Rogers position would have likewise followed the advice of the ADA and arrested Plaintiff (Kelly v Borough of Carlisle, 2010, p.15).

10 RECORDING THE POLICE 10 The courts explanation was not adequate. It concluded that previous cases that have come before a circuit court, that have ruled on the right to record police were "insufficient" (Kelly v Borough of Carlisle, 2010, p. 22). They also stated that to put a reasonably competent officer on 'fair notice' that seizing a camera or arresting an individual for videotaping police during a traffic stop would violate the First Amendment (p.22). While it may seem like the undefined parameters of qualified immunity are overbroad and could not apply in this case, there is a tension between the reasonableness of expecting that police officers know the basic elements of the laws they enforce and the unfairness of requiring that they be as conversant in the law as lawyers and judges who have the benefit not only of formal legal training, but also the advantage of deliberate study (Potere, 2012). Geraci and Fields v City of Philadelphia This case involves two Plaintiffs: Richard Fields and Amanda Geraci. Richard Fields was walking on the sidewalk in September 2013, when he observed a group of police officers outside a home holding a social event. Fields used his phone to take a picture of the scene simply because he thought it was an interesting scene (Fields v City of Philadelphia, 2016). He was approached by Officer Sisca, who asked him to leave. When Fields refused, Officer Sisca handcuffed him, placed him in a police vehicle, and confiscated his cell phone. Officer Sisca cited Fields for Obstructing Highway and Other Public Passages and returned his phone (p. 2). Fields brought suit against Sisca unde violation of his First Amendment right to observe the police and violation of his Fourth Amendment right to be free from unreasonable search and seizure.

11 RECORDING THE POLICE 11 Amanda Geraci attended a public protest in September 2012 as a legal observer (ACLU, 2017). During the protest, one of the protesters was arrested and Geraci attempted to videotape the scene. Officer Brown physically restrained her to prevent her from taping the arrest. She was then released. Geraci brought a suit under violation of First Amendment and Fourth Amendment right to be free from excessive force. These two cases were consolidated into one and filed together by The American Civil Liberties Union (ACLU). Judge Kearney, the presiding judge, ruling was based, to a large extent on the fact that if there is no criticism or challenge of police conduct, the first amendment, does not protect your right to record police officers. The Judge said that the Court had a limited question to answer. He said, photographing approximately twenty police officers standing outside a home hosting a party carrying a camera to a public protest to videotape interactions between police and civilians during civil disobedience or protests wasn t protected by the First Amendment (Fields v City of Philadelphia, 2016, p.7). The Court opined that question in this case was whether photographing or filming the police without an expressive purpose is protected under the First Amendment. To determine this the court first identified a three part test in order for Fields and Geraci to prevail on a First Amendment claim: 1) Speakers must have engaged in constitutionally protected conduct (p.9) 2)Police took actions to deter them from exercising their constitutional rights. 3)The constitutionally protected conduct was a substantial or motivating factor (p.9) in the decision of the police to take action against them.

12 RECORDING THE POLICE 12 The ACLU has appealed this decision to the Court of Appeals, and several amici briefs have been filed. In essence, the court is claiming that expressive conduct is only afforded constitutional protection if the actions are taken with the intent to protest, chronicle, criticize or challenge government activity and that the message of the conduct can be understood by anyone who sees it (UCLA Law Review, 2016). The Court even cited the Supreme Court case Texas v. Johnson to corroborate this argument, Conduct is protected by the First Amendment when the nature of [the] activity, combined with the factual context and environment in which it was undertaken, shows that the activity was sufficiently imbued with elements of communication to fall within the First Amendment s scope. (Fields v City of Philadelphia, 2016, pg. 6). However, while video recording could be a form of expressive conduct, there was no evidence that either Plaintiff was engaging in it. Geraci was an observer and Fields was just taking a picture because he thought the scene was interesting. The Court recognized that other District Courts had found that observing and documenting police activity without any criticism can fall within the category of First Amendment protected activity but that was not the case in the Third Circuit (UCLA Law Review, 2016). Eugene Volokh in a Washington Post points out some graring contradictions in define expressive conduct in this way. He says, Your being able to spend money to express your views is protected even when you don t say anything while writing the check (since your plan is to use the funds to support speech that takes place later). Your being able to associate with others for expressive purposes, for instance by signing a membership form or paying your membership dues, is protected even when you aren t actually challenging or criticizing anyone while associating (since your plan is for your association to facilitate speech that

13 RECORDING THE POLICE 13 takes place later). The same should be true of your recording events in public places. (Volokh, 2016). Discussion and Conclusion Being a police officer is a challenging and daunting career path. They are often in very high pressure situation in which a split-second decision could mean their life and death or harm to other people. That is why, having interruptions that can cause officers to second guess themselves in high tension situations can be off-putting and severe hindrance. However, a citizen s right to film police officials acts as a mode of providing checks on persons of power. When power is left unchecked, there are always elements that choose to exploit it. Police brutality and misconduct instantly affects people since they are the ones being policed and recording the police falls under a public interest. In current times, being constantly connected and cellphone videos of police brutality and bias have help shaped revolution and to point out holes in the system. This, in essence, is a form of checks and balances with the people in power that the average private citizen has more immediate contact with. Perhaps, there can come a time when police do not need to use force unduly in citizens and concepts of racial bias and assumptions will be eradicated. Until that time, it is the duty of the citizens to make sure that such injustices do not prevail.

14 RECORDING THE POLICE 14 Works Cited: American Civil Liberties Union of Pennsylvania. (2017). Retrieved May 10, 2017, from Fields v. City of Philadelphia, PA. Dist. (2016) Fordyce v City of Seatle, 55 WD.3d 436 (2010) Garner, B. A., & Black, H. C. (2016). Black's law dictionary, Retrieved April 05, 2017, from Glick v Cunniffe, 10 MA. 1 st 1764 (2011). Kelly v. Borough of Carlisle, 622 PN.3d 248 (2010) Mills v. Alabama, 384 U.S. 214 (1966). Potere, M. (2012). WHO WILL WATCH THE WATCHMEN?: CITIZENS RECORDING POLICE CONDUCT. Northwestern University Law Review, 106(1), Retrieved from Schott, R. G. (2012, September 21). Qualified Immunity: How It Protects Law Enforcement Officers. Retrieved April 05, 2017, from Silverman, S. (2013, June 06). 7 Rules for Recording Police. Retrieved May 09, 2017, from Stanford v. Texas, 379 U.S. 476 (1965).

15 RECORDING THE POLICE 15 UCLA Law Review. (2016, July 09). The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection? Retrieved May 09, 2017, from Texas v. Johnson, 491 U.S. 397, 404 (1989) U.S. Const. amend. I Volokh, E. (2016, February 23). Opinion Court: No First Amendment right to videorecord police unless you are challenging the police at the time. Retrieved May 11, 2017, from

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