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posted by martyb on Saturday February 18 2017, @02:33PM   Printer-friendly [Skip to comment(s)]
from the but-not-in-all-cases/places dept.

The United States Court of Appeals for the Fifth Circuit covers the states of Louisiana, Mississippi, and Texas, the second most populous state. The court has issued a decision that clearly establishes the right to record police, which did not previously exist in the Fifth Circuit.

The plaintiff, Phillip Turner, was recording a Fort Worth police station (6:35 YouTube) from a public sidewalk (known as a "First Amendment audit") when officers approached him and asked for identification. Turner refused to ID himself and was eventually handcuffed and placed in the back of a patrol car. Turner was released at the scene and later filed charges against three officers (amended to include the City of Fort Worth) under 42 U.S.C. § 1983, alleging violations of his First, Fourth, and Fourteenth Amendment rights. The officers moved to dismiss the case, claiming qualified immunity, which was granted by the district court. The Fifth Circuit has affirmed, reversed, and remanded portions of the district court's decision in what can be considered an overall win for Mr. Turner (10:59 YouTube).

From Cornell's Legal Information Institute, "the Supreme Court [has] held that courts considering officials' qualified immunity claims do not need to consider whether or not the officials actually violated a plaintiff's right if it is clear that the right was not clearly established". In Turner v. Driver, the appeals court has upheld the qualified immunity claims related to the First Amendment because the right to record police was not clearly established in the Fifth Circuit. Although the right to record police was not clearly established at the time of the challenged conduct in September 2015, the decision also clearly establishes that right from now on:

[Continues...]

Although the right was not clearly established at the time of Turner's activities, whether such a right exists and is protected by the First Amendment presents a separate and distinct question. Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

[...] We agree with every circuit that has ruled on this question: Each has concluded that the First Amendment protects the right to record the police. As the First Circuit explained, "[t]he filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [basic First Amendment] principles." This right, however, "is not without limitations." Like all speech, filming the police "may be subject to reasonable time, place, and manner restrictions." In this case, however, we need not decide which specific time, place, and manner restrictions would be reasonable. Nonetheless, we note that when police departments or officers adopt time, place, and manner restrictions, those restrictions must be "narrowly tailored to serve a significant governmental interest." That said, to be constitutionally permissible, a time, place, and manner restriction "need not be the least restrictive or least intrusive means of serving the government's interests."

The court also found that the officers' restraint of Phillip Turner's movement in the back of the patrol car constituted an arrest, and that there was no probable cause for his arrest because "police cannot arrest an individual solely for refusing to provide identification." Circuit Judge Edith Brown Clement dissented on both the establishment of a First Amendment right to record police and the reversal of the qualified immunity granted to the officers related to the unlawful arrest of Phillip Turner.

According to Turner, the Texas Civil Rights Project refused to assist with his case and the ACLU simply did not respond. Eventually, Dallas-based attorney Kervyn Altaffer took his case.


Original Submission

Related Stories

Right to Record Police Activities in Public Advances in U.S. District Court Win 13 comments

The Boston Globe has a story out about a ruling in US District court this week that narrows the scope of a 50-year old Massachusetts law that restricted recording of police and other government officials.

The law, and similar ones still in effect in 10 other states, was implemented long before the advent of now ubiquitous cell phones. It and similar laws criminalized recordings made of police and public officials in public even in performance of their duties, as felonies and have caught large numbers of individuals, activists, and journalists doing the same thing they always do in their net. (Most states are covered already by rulings which find such recording legal on first amendment grounds.)

But a ruling issued Monday by US District Court Judge Patti Saris found, "On the core constitutional issue, the Court holds that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions." And so, she added, the law "is unconstitutional in those circumstances."

The attorney general's office is reviewing the decision so challenge or appeal may still be forthcoming. However, as the Globe notes

this is one law whose time has come and gone. Challenges to the law go back to at least 2001, when a spirited dissent in a case then before the Supreme Judicial Court insisted that the "legislative intent" was to regulate government surveillance, not that of private citizens trying to monitor police conduct in a public place.

This case was clearly a win for greater transparency — and that's all to the good. It should be allowed to stand.

More information on recording public officials is available here and here.

Quis custodiet ipsos custodes? Maybe now we can, just a little bit more, in Massachusetts.

Good one Skippy.

Previously: Right to Record Police Established in U.S. Fifth Circuit
Right to Record Police Established in U.S. Third Circuit

Related: New Bill in Colorado Would Protect the Right to Record Police
PINAC Correspondent Found Guilty of Trespassing on Public Road
China Says it's OK for Members of the Public to Record the Police


Original Submission

Right to Record Police Established in U.S. Third Circuit 30 comments

Fields v. Philadelphia has established the right to record police in the U.S. Third Circuit (Delaware, New Jersey, Pennsylvania, and the Virgin Islands):

The First Amendment protects our right to use electronic devices to record on-duty police officers, according to a new ruling by the U.S. Court of Appeals for the Third Circuit in Fields v. Philadelphia. This right extends to anyone with a recording device, journalists and members of the public alike. And this right includes capture of photos, videos, and audio recordings.

EFF filed an amicus brief seeking this ruling. We argued that people routinely use their electronic devices to record and share images and audio, and that this often includes newsworthy recordings of on-duty police officers interacting with members of the public.

[...] The Third Circuit erred on the issue of "qualified immunity." This is a legal doctrine that protects government employees from paying money damages for violating the Constitution, if the specific right at issue was not clearly established at the time they violated it. In Fields, the Third Circuit unanimously held that going forward, the First Amendment protects the right to record the police. But the majority held that this right was not clearly established at the time the police officers in the case violated this right.

According to Slate, similar rulings have been issued in the First, Fifth, Seventh, Ninth, and Eleventh Circuits. The new decision addressed two cases in Philadelphia:

Friday's decision involved two instances in which the Philadelphia police retaliated against citizens attempting to film them. In the first incident, a legal observer named Amanda Geraci tried to film police arresting an anti-fracking protester when an officer pinned her against a pillar, preventing her from recording the arrest. In the second, a Temple University sophomore named Richard Fields tried to film police officers breaking up a house party when an officer asked him whether he "like[d] taking pictures of grown men" and demanded that he leave. When Fields refused, the officer arrested and detained him, confiscating his phone and looking through its photos and videos. The officer cited Fields for "Obstructing Highway and Other Public Passages," although the charges were dropped when the officer failed to appear at a court hearing. Geraci and Fields filed civil rights suits against the officers who interfered with their filming attempts.

Writing for the court, Judge Thomas Ambro agreed that both Geraci and Fields held a constitutional right to record the police—a right that officers violated in both instances. "The First Amendment protects the public's right of access to information about their officials' public activities," Ambro wrote. This access "is particularly important because it leads to citizen discourse" on public and political issues, the most highly valued First Amendment activity. Thus, the government is constitutionally barred from "limiting the stock of information from which members of the public may draw."

Anything you say or do may be uploaded to YouTube.

Previously: Right to Record Police Established in U.S. Fifth Circuit


Original Submission

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  • (Score: 0) by Anonymous Coward on Saturday February 18 2017, @02:47PM

    by Anonymous Coward on Saturday February 18 2017, @02:47PM (#468590)

    Seems like a clearcut case for either of those groups, and a definitive black eye now that the case was won without their help.

  • (Score: 4, Insightful) by Runaway1956 on Saturday February 18 2017, @02:47PM

    by Runaway1956 (2926) Subscriber Badge on Saturday February 18 2017, @02:47PM (#468591) Homepage Journal

    The cops and the courts have burned citizens in the past, with that statement. "You're in public, we can record you if we want!" It's past time that the cops take a dose of their own medicine. Don't want to be recorded being an idiot? Don't be an idiot. Wasn't that an elegant solution?

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    • (Score: 4, Insightful) by Thexalon on Saturday February 18 2017, @03:57PM

      by Thexalon (636) on Saturday February 18 2017, @03:57PM (#468607)

      Also, public employees engaged in their official duties generally do not and should not have an expectation of privacy regardless of where they are. For example, a cop who goes into somebody's house does not have an expectation of privacy, even though they are no longer in public view.

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      • (Score: 2) by bob_super on Saturday February 18 2017, @05:43PM

        by bob_super (1357) on Saturday February 18 2017, @05:43PM (#468649)

        Agreed, though your "generally" is pretty critical, as some sensitive cases require that either the cops or the other persons involved keep their identities secret. That's what's spelled out by restrictions "narrowly tailored to serve a significant governmental interest."
        The million dollar questions will arise from differing interpretations of "need not be the least restrictive or least intrusive means"

        • (Score: 2) by takyon on Saturday February 18 2017, @06:12PM

          by takyon (881) <reversethis-{gro ... s} {ta} {noykat}> on Saturday February 18 2017, @06:12PM (#468663) Journal

          That really should only apply to public records requests for police bodycam footage, where state laws are written to protect footage taken in private homes/businesses, etc.

          If you manage to capture imagery of a "secret" undercover officer or their vehicle with your camera in public, it is absolutely your right to publish it.

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          • (Score: 2) by bob_super on Saturday February 18 2017, @07:05PM

            by bob_super (1357) on Saturday February 18 2017, @07:05PM (#468679)

            > If you manage to capture imagery of a "secret" undercover officer or their vehicle with your camera in public, it is absolutely your right to publish it.

            There is indeed no law against being an ass.

            • (Score: 3, Insightful) by takyon on Saturday February 18 2017, @07:45PM

              by takyon (881) <reversethis-{gro ... s} {ta} {noykat}> on Saturday February 18 2017, @07:45PM (#468699) Journal

              And undercover officers are always doing something of value for you or the community? They are heroes or something?

              Don't be brainwashed by pop culture.

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              • (Score: 2) by Thexalon on Thursday March 02 2017, @03:13PM

                by Thexalon (636) on Thursday March 02 2017, @03:13PM (#473886)

                Also, the activities of undercover cops, at least as well as they can be recorded, often *do* become public information if they come up in court for any reason.

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    • (Score: 3, Interesting) by takyon on Saturday February 18 2017, @06:09PM

      by takyon (881) <reversethis-{gro ... s} {ta} {noykat}> on Saturday February 18 2017, @06:09PM (#468662) Journal

      One thing you hear a lot in these audit videos is some variation on "With the way things are today™ [youtube.com], with ISIS and police shootings, we have a right to know about who's scoping out our facility. It's suspicious activity! You could be a terrorist!" Then they demand ID despite Texas law only requiring you to ID yourself if you've been lawfully arrested [youtube.com]. The dumber ones will claim that it is illegal for you to film "sensitive" parts of a police station, prison, courthouse, etc. from a public sidewalk or right of way. If you're lucky, mentioning that Google Maps vans do the exact same thing will stump them.

      Police often get away with this stuff because they are not used to citizens asserting their rights. They are used to using little tricks to get the information they want. They coerce people into identifying themselves even in states where the law doesn't require it in most interactions. They tell you it's illegal to record, because it's not illegal for them to lie to you. In a lot of the audit videos, after they don't get what they want, they will follow the person around in an attempt to try to locate their vehicle and run the license plate. They may even run some unrelated person's license plate if you trick/fake them out. A lot of auditors film traffic stops. In the DUI stops, you can see officers pressuring people to take field sobriety tests that aren't required by state law [youtube.com].

      In the Turner case, officers went a step further by illegally arresting the man (although the detention was unjustified and should have been found illegal as well). It's obvious that if they notice or get a call about the "suspicious" yet legal activity of filming from a public sidewalk, there is no justification to detain or arrest someone for refusal to ID, since Texas law does not require you to give ID unless you have been lawfully arrested.

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  • (Score: 1, Insightful) by Anonymous Coward on Saturday February 18 2017, @03:30PM

    by Anonymous Coward on Saturday February 18 2017, @03:30PM (#468598)

    I find it disturbing the right had to be established in the first place. I don't believe that was the spirit or intent had by the framers of the Constitution.

    • (Score: -1, Troll) by Anonymous Coward on Saturday February 18 2017, @06:04PM

      by Anonymous Coward on Saturday February 18 2017, @06:04PM (#468658)

      Have you actually read the constitution? Do you actually understand what is in it and what isn't? What (lacking) exactly in the constitution are you referring to?
      I'm sick and tired of idiots claiming "constitution!" with every legal issue as if they actually have a consistent argument. If you're such a constitutional & legal scholar, the fuck are you replying to this thread to instead of fighting in a court?

      • (Score: 0) by Anonymous Coward on Saturday February 18 2017, @06:28PM

        by Anonymous Coward on Saturday February 18 2017, @06:28PM (#468670)

        Yes, I have read it. Have you?

        • (Score: 0) by Anonymous Coward on Saturday February 18 2017, @06:33PM

          by Anonymous Coward on Saturday February 18 2017, @06:33PM (#468673)

          Including all opinions and interpretations by courts?

          • (Score: 2) by HiThere on Saturday February 18 2017, @08:25PM

            by HiThere (866) on Saturday February 18 2017, @08:25PM (#468714) Journal

            Not all, or even many, but I've read opinions by the courts that I consider flagrantly wrong. Not merely wrong, but flagrantly so. So just because a court says something is what the constitution means, I don't feel compelled to agree with them. I've seen too many clearly abusive, and probably political interpretations that are clearly against the wording and intent.

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    • (Score: 0) by Anonymous Coward on Saturday February 18 2017, @06:06PM

      by Anonymous Coward on Saturday February 18 2017, @06:06PM (#468659)

      You know that your constitution is not set in stone, right? Both literally (I shouldn't have to explain this one) and figuratively (do you actually know how many amendments you've had? Remember the one about prohibition?)?

      • (Score: 0) by Anonymous Coward on Saturday February 18 2017, @06:31PM

        by Anonymous Coward on Saturday February 18 2017, @06:31PM (#468672)

        Yes. And I'm in the process of reading The Federalist Papers. A bit challenging, but worth my time.

      • (Score: 0) by Anonymous Coward on Saturday February 18 2017, @10:23PM

        by Anonymous Coward on Saturday February 18 2017, @10:23PM (#468741)

        The Constitution itself isn't set in stone because it can be amended. The interpretation of the Constitution in the courts definitely isn't set in stone because it can change at a moment's notice according to the whims of some judges.

    • (Score: 4, Interesting) by dyingtolive on Saturday February 18 2017, @08:57PM

      by dyingtolive (952) on Saturday February 18 2017, @08:57PM (#468723)

      To be fair, I severely doubt said framers could have even conceived of a world where something the size of a small book could record high quality video and near instantly communicate it to the rest of the world, and that it would be ubiquitous enough technology that everyone in the country would have access to one if they wished.

      I agree with your sentiment, but I'm going to say that I think this is something that would be pretty impossible to assume their intent upon.

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      • (Score: 5, Insightful) by AthanasiusKircher on Sunday February 19 2017, @03:08AM

        by AthanasiusKircher (5291) on Sunday February 19 2017, @03:08AM (#468839) Journal

        I agree with your sentiment, but I'm going to say that I think this is something that would be pretty impossible to assume their intent upon.

        I don't know precisely what AC intended here, but one thing we KNOW about the "intent" of the Founders is that they pretty much meant for the federal government to have no powers other than what was enumerated in the Constitution, and EVERYTHING else was pretty much a power (or "right") either delegated to the states (to regulate as they wish) OR to the people. The Founders were so concerned about this idea that when they passed the Bill of Rights, they were concerned that some people might think these were the ONLY rights -- hence, they included the Ninth Amendment [wikipedia.org], which states:

        The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        Followed by the Tenth Amendment [wikipedia.org]:

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

        Now, everything got a bit confused since then. Originally, the Bill of Rights and these amendments were considered restrictions on the federal government alone. Hence, for the first few decades of the U.S., there were some states that maintained official established religions. Etc. States used to get away with violating a bunch of the stuff in the Bill of Rights, including various protections at trials, etc. But mostly in the 20th century, SCOTUS has incorporated [wikipedia.org] most of the clauses of the Bill of Rights to apply to state governments as well as federal governments.

        Anyhow, this is a long-winded way of getting around to the fact that it's pretty obvious the Founders would have asserted a "right" for citizens to record FEDERAL police, by implication through the 9th and 10th amendments. Of course, that last phrase ("federal police") is a Constitutional oxymoron, since there is no police power granted to the federal government, a fact that led to a number of federal laws being overturned by SCOTUS up through the 1930s... even ones that had nothing to do with police per se, but anything encroaching on the "police power" of the states.

        But now everything is a muddle, because (1) federal power since the late 1930s has basically been unlimited and no longer subject to the "enumerated powers" of the Constitution in any meaningful way, and (2) many "rights" aren't clearly assigned to federal vs. state realms of power anymore. The Founders would have been completely agnostic on a question of dealing with state or local police, since the original Constitution (except in a few places) has almost no guidance or restrictions on how state law can function in this regard. But they also really valued the idea of the 9th Amendment as asserting that rights for the people existed by default.

        However, one notable omission for incorporation is the 9th amendment -- that is, the implication that rights exist for the people by default (even if not listed elsewhere) which STATES cannot infringe on. There have been some notable attempts by SCOTUS justices to shoehorn a 9th Amendment argument in, especially in Griswold v. Connecticut (which established the federal "right to privacy," initially to force states to allow birth control) and later in Roe v. Wade (which depended on the reasoning of the previous ruling in Griswold).

        Bottom line is that we live with a vastly different Constitution than the Founders originally implemented, with vastly different assumptions about "default" power granted to state or federal government, and vastly different assumptions about what "rights" may exist at various levels. But AC certainly has an implicit point about the fact that the Founders did have a notion that plenty of unenumerated rights exist, and they put in a Constitutional amendment to make that explicitly clear.

        • (Score: 2) by takyon on Sunday February 19 2017, @03:36AM

          by takyon (881) <reversethis-{gro ... s} {ta} {noykat}> on Sunday February 19 2017, @03:36AM (#468844) Journal

          The Founders would have been completely agnostic on a question of dealing with state or local police, since the original Constitution (except in a few places) has almost no guidance or restrictions on how state law can function in this regard.

          I'd like to add that local police often take an oath that mentions supporting, upholding, or defending the Constitution. Whatever that means anymore.

          https://en.wikipedia.org/wiki/Oath_of_office#State_and_Local_Oaths [wikipedia.org]

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        • (Score: 2) by dyingtolive on Sunday February 19 2017, @03:51AM

          by dyingtolive (952) on Sunday February 19 2017, @03:51AM (#468848)

          That is a very reasonable response. Thank you for that.

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        • (Score: 2) by Thexalon on Thursday March 02 2017, @03:17PM

          by Thexalon (636) on Thursday March 02 2017, @03:17PM (#473889)

          However, one notable omission for incorporation is the 9th amendment -- that is, the implication that rights exist for the people by default (even if not listed elsewhere) which STATES cannot infringe on.

          The application of the federal Bill of Rights protections onto state governments is a direct result of the 14th Amendment, which states in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

          There are lots of people who would like to pretend that's not part of the law of the United States, or believe it's an illegitimate amendment because it was imposed on the South by force in 1865, but that's one reason the issue gets muddled a bit.

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