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
Related Stories
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...]
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
(Score: 1, Insightful) by Anonymous Coward on Tuesday July 11 2017, @02:07AM (5 children)
Such rights are inalienable; they were not "given" to people by the State, but rather recognized as having existed before the State—at most, such rights might enjoy protection by the State.
If you don't understand what this means, then America doesn't want you.
(Score: 2, Insightful) by Anonymous Coward on Tuesday July 11 2017, @02:14AM (2 children)
Give that speech during juror selection and you are guaranteed never to serve on a jury. You know too much and America does not want you.
(Score: 2) by davester666 on Tuesday July 11 2017, @05:37AM (1 child)
Exactly. An ICE officer will be at the courtroom exit to deliver you to Mexico.
(Score: 0) by Anonymous Coward on Wednesday July 12 2017, @01:43PM
... if you're lucky.
(Score: 2) by DeathMonkey on Tuesday July 11 2017, @05:38PM (1 child)
Who cares what the courts say!
The police do (presumably).
Such rights are inalienable; they were not "given" to people by the State, but rather recognized as having existed before the State—at most, such rights might enjoy protection by the State.
Tell that to the people who were arrested for exercising those inalienable rights....
(Score: 2) by bob_super on Tuesday July 11 2017, @06:04PM
> > Who cares what the courts say!
> The police do (presumably).
Better print the decision and keep it in your pocket.
Make that a shirt pocket, if you're not white.
(Score: -1, Flamebait) by Anonymous Coward on Tuesday July 11 2017, @02:11AM (17 children)
It's like all you wags love to chant, freedom of speech doesn't mean freedom from consequences. You can record police and put your five minutes of fame up on youtube. But after that arrest you'll still have a criminal record, you will fail every background check, you will never work again, and you will fucking die in the gutter in a puddle of your own shit. Enjoy your five minutes of fame, nigger.
(Score: -1, Flamebait) by Anonymous Coward on Tuesday July 11 2017, @02:16AM (1 child)
Who you callin nigger nigga?!
(Score: -1, Flamebait) by Anonymous Coward on Tuesday July 11 2017, @02:55AM
Where's that violent imposition nigga at?!
(Score: 0) by Anonymous Coward on Tuesday July 11 2017, @02:24AM (4 children)
Of course I will work again, I am the sole owner of my own small company and my reputation is already such that finding work isn't very hard.
(Score: 0) by Anonymous Coward on Tuesday July 11 2017, @02:32AM (3 children)
Potential clients google your name and decide not to do business with you. Your company is ruined. Do not pass go. Do not collect income. Die in the gutter.
(Score: 1, Informative) by Anonymous Coward on Tuesday July 11 2017, @02:48AM (2 children)
You're also forgetting the cops that will permanently loiter around the buisness and vicinity and harass any potential customer.
(Score: 0) by Anonymous Coward on Tuesday July 11 2017, @03:09AM (1 child)
You are also forgetting I'm providing services via Internet and get paid as such. Police can loiter around my business all they want, their waste of time, they can do it until they die in the gutter, I won't clean after them.
(Score: 0) by Anonymous Coward on Tuesday July 11 2017, @03:27AM
Exactly, I'm glad to see someone else here that owns a business (I'm the first "small business owner" to post above).
(Score: 4, Insightful) by Arik on Tuesday July 11 2017, @03:16AM (8 children)
And the long-suffering taxpayers will cough up the money.
In terms of a deterrent it would make more sense for the government officials involved in the crime to pay, rather than the taxpayers, so this isn't a great outcome overall, but it does solve the problem you mention.
If laughter is the best medicine, who are the best doctors?
(Score: 2) by DannyB on Tuesday July 11 2017, @02:23PM (7 children)
It does solve the problem, just not as quickly as you or I would like.
The taxpayers burdened with paying for judgements against dirty cops, will elect different officials that will fix things.
Also, there is nothing that stops courts from issuing judgements against police departments or police officers for criminal wrongdoing. And let's not forget judgements against police onions if they get involved in trying to obstruct justice against dirty cops.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 3, Interesting) by takyon on Tuesday July 11 2017, @04:13PM (1 child)
I want to believe that. But there may not be a choice. Good ol' boys tend to win the offices that matter for solving the problem, such as Sheriff.
Taxpayers are burdened with paying for trillions of dollars worth of foreign wars too, but they tend to elect officials that keep on intervening overseas.
Local taxpayers aren't necessarily going to feel the burden directly. Which budget will get cut first, policing or parks & rec?
There are municipalities, states, and territories that are deep in debt. Do newly elected officials tend to solve those debt problems?
Police unions are like onions. They have protective layers and they stink!
The judges and prosecutors are often a part of the problem. There are many judges that will defer to law enforcement. Prosecutors will cover for the crimes of the police, won't do anything about the many illegal detentions and arrests, and can be openly hostile to First Amendment auditors and other people filming the police.
The best outcomes are the election of Sheriffs that are committed to cleaning out bad apples, and the intervention of the feds in the very worst departments. Think Baltimore [nbcnews.com] (extra [wtop.com]) or Los Angeles [go.com] (more recent [latimes.com]).
Many police officers lie on police reports. Cameras and smartphones have undermined this practice. Live streaming has helped further by preventing the potential destruction of evidence. Cameras getting lost in the evidence room, smashed, or just outright deletion of video if the officer is not completely tech-illiterate. The wireless connection from the phone/camera to a cloud service can be a problem. If you watch live streams filmed outside, you'll notice the crap quality and flakiness. Still, we live in great times for police accountability (which requires more than mysteriously malfunctioning bodycams).
[SIG] 10/28/2017: Soylent Upgrade v14 [soylentnews.org]
(Score: 2) by DannyB on Tuesday July 11 2017, @05:35PM
My thinking is that voters have better local control through voting than they do national control through voting.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 2) by Arik on Tuesday July 11 2017, @05:10PM (4 children)
Unfortunately this doesn't happen. The taxpayers, for the most part, seem content to write off innocent citizens dead and even multimillion dollar payouts to victims of criminal misbehavior as simply part of the cost of 'security.' Occasionally a particularly noteworthy case may generate enough of a backlash to turn an incumbent out but his successor essentially never manages to 'fix things.' Politicians can't afford to buck police unions, in the great majority of cases.
"Also, there is nothing that stops courts from issuing judgements against police departments or police officers for criminal wrongdoing."
In theory.
You know the difference between theory and practice?
If laughter is the best medicine, who are the best doctors?
(Score: 2) by DannyB on Tuesday July 11 2017, @05:37PM (2 children)
In theory there is no difference between theory and practice.
But in practice exceptions are thrown, debugging, new builds, testing and redeployment are required.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 2) by Arik on Tuesday July 11 2017, @05:44PM (1 child)
This is more succinct though.
"In theory, there is no difference."
If laughter is the best medicine, who are the best doctors?
(Score: 2) by DannyB on Tuesday July 11 2017, @08:54PM
In the mid 1990's, the way I heard it.
In theory there is no difference between theory and practice.
But in practice, there is.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 0) by Anonymous Coward on Tuesday July 11 2017, @05:50PM
Break it out as a line item on their tax bill and people will start to take notice very quickly. Until then it's "out of sight, out of mind". No one considers it a cost of security, they simply never make the connection.
(Score: 3, Insightful) by DeathMonkey on Tuesday July 11 2017, @06:10PM
It's like all you wags love to chant, freedom of speech doesn't mean freedom from consequences.
Perfectly willing to put up with the consequences. Especially considering the courts have declared there shall be none.
Or are you referring to illegally arresting people for violating no laws?
(Score: 3, Insightful) by Anonymous Coward on Tuesday July 11 2017, @07:16AM (5 children)
While this ruling is correct ("who watches the watchers" - if the police are accountable to nobody, the police force will degrade into a criminal institution), it seems to me that this should be done in a different way:
In every case where a witness claims to have tried to record what happened and was prevented from doing so, the judge simply needs to ask the police to show the recording, and if it's missing, blocked, etc, simply hit them for destruction of evidence. Throw out a few cases where a crime can't be proven because the police destroyed evidence potentially proving the accused was innocent, and convict a few police officers who stand accused of killing someone for being black because intentionally destroying the evidence is itself evidence.
(Score: 0) by Anonymous Coward on Tuesday July 11 2017, @03:08PM (2 children)
You can throw out as many charges as you like because of missing evidence, but you can't do the bit I bolded. The police have the same fourth and fifth amendment rights as everyone else.
"Intentionally destroying evidence" may (and should) be a crime you can charge them with, but you cannot use the lack of evidence as proof of guilt in another matter (the killing).
(Score: 0) by Anonymous Coward on Tuesday July 11 2017, @04:14PM (1 child)
Spoliation of evidence [wikipedia.org] is a crime. From the wiki article I gather that it mostly comes into play in civil cases. And in those cases destruction of evidence can be construed as evidence of a guilty mindset; apparently, judges really hate that sort of thing.
(Score: 0) by Anonymous Coward on Tuesday July 11 2017, @04:17PM
Sorry for replying to my own post but I forgot to add that tampering with evidence, mentioned in the same wiki article, is also a crime. Judges also hate that sort of thing.
(Score: 2) by takyon on Tuesday July 11 2017, @04:22PM (1 child)
Cameras can run out of battery life at unfortunate moments. Flash memory can become corrupted. Sometimes you think you're recording when you're not. Maybe a lens cap is left on. Or due to a glitch or malfunction, video may be recorded without audio. So when police tamper with citizen cameras, it may come down to one person's word against another's, with plenty of legitimate doubt about the supposed destroyed evidence. Same story with police body cams, which they may "forget" to turn on (fancy systems that turn it on when a gun is drawn capture less context and could also malfunction). This is before you factor in the pro-police judges and prosecutors you are likely to get... the infection goes beyond corrupt police departments.
[SIG] 10/28/2017: Soylent Upgrade v14 [soylentnews.org]
(Score: 0) by Anonymous Coward on Saturday July 15 2017, @10:01AM
How about a system that forces camera turn-on when the gun is drawn, but optional otherwise. Not much you can do about malfunction, but if the cop doesn't want "missing context" then he/she can turn the fucking camera on earlier, before they shoot some nigger in the back.