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posted by martyb on Monday December 17 2018, @10:52AM   Printer-friendly [Skip to comment(s)]
from the big-cheeky-bugger.-Hey!-It's-got-a-camera! dept.

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

Related Stories

New Bill in Colorado Would Protect the Right to Record Police 41 comments

In the light of the heated discussions about a certain bill signed in Indiana, here is a more refreshing news about a proposed bill in Colorado. The state of Colorado is considering a bill that outlines punishments for police officers who interfere with photographers. House Bill 15-1290 is titled "Concerning Prohibiting A Peace Officer From Interfering With A Person Lawfully Recording A Peace Officer-Involved Incident".

The bill states that if a person is lawfully documenting a police officer and then has their imagery seized or destroyed without a warrant, they are entitled to $15,000 for actual damages plus attorney fees and costs. The bill also would be applied when a police officer intentionally interferes with a person's ability to capture images.

It seems the bill came up as a result of the number of news reports about police officers telling people "Give me your camera", or taking the data away.

The story is covered further in The Denver channel and PetaPixel.

PINAC Correspondent Found Guilty of Trespassing on Public Road 43 comments

Photography Is Not A Crime (PINAC) correspondent Michale Hoffman has been found guilty of trespassing on public property. He was arrested in August 2014 for holding up signs saying "Police State," "Liars Investigating Liars," "F??K THE TSA" and "IRS = Terrorist" on a public road leading to the Jacksonville International Airport (JAX). Hoffman was barred from invoking a First Amendment defense at his trial. "While we are disappointed in the jury's verdict we look forward to appealing the judge's rulings on the First Amendment issues that the jury was not allowed to hear or consider," said attorney Eric Friday. Furthermore:

Duval County Judge Brent Shore also refused to answer the jury's question about whether or not holding up signs on public property is illegal. It's not, of course, but prosecutors convinced the jury that all the cops had to do was order him to leave, even if he was not breaking any law, to give them the right to arrest him for trespassing. "The state convinced the jury that I didn't have to break any law to be trespassed," Hoffman said.

Judge Brent Shore created arbitrary "credentialed media" rules that prevented PINAC from filming the court case, but allowed photographers from The Florida Times-Union and News4Jax to cover the trial at the last moment.

In an order issued after Michale Hoffman recorded himself hurling insults at journalists and cops [length: 5:36] on the court steps, Chief Fourth Circuit Judge Mark Mahon threatened to arrest anyone who recorded the Duval County Courthouse, even from across the street, for contempt of court. Additionally, Judge Mahon's order banned calling into question the integrity of the court or its judges, or calling them "corrupt." In response, another PINAC correspondent demonstrated what would happen if you tried to film the courthouse [length: 4:18] (the same user also engaged in the same conduct as Hoffman [length: 10:22] in front of JAX, and was not arrested). PINAC also filed a lawsuit in federal court against Mahon on Tuesday.

Eugene Volokh of the Washington Post's Volokh Conspiracy legal blog called Mahon's order unconstitutional. The order is also discussed at the Popehat legal blog. From the order:

[T]he proper procedure for challenging a court's decision is to file an appeal with the appropriate appellate court. Shouting out on the Courthouse grounds that the Court and judges are "corrupt" during business hours while people are entering the Courthouse is entirely inappropriate and disruptive and is analogous to falsely shouting "fire" in a crowded theater...

3. Demonstrations or dissemination of materials that degrade or call into question the integrity of the Court or any of its judges (e.g., claiming the Courts, Court personnel or judges are "corrupt," biased, dishonest, partial, or prejudiced), thereby tending to influence individuals appearing before the Courts, including jurors, witnesses, and litigants, shall be prohibited on the Duval County Courthouse grounds....

Original Submission

China Says it's OK for Members of the Public to Record the Police 20 comments

Submitted via IRC for TheMightyBuzzard

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.

Source: TechDirt

Original Submission

Right to Record Police Established in U.S. Fifth Circuit 23 comments

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:


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: 3, Insightful) by takyon on Monday December 17 2018, @12:18PM (10 children)

    by takyon (881) <{takyon} {at} {}> on Monday December 17 2018, @12:18PM (#775358) Journal

    We've seen this right established/affirmed in the Fifth and Third circuits lately. Maybe more if I wasn't paying attention.

    Now this did exist in the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) due to Glik v. Cunniffe [], but only for "open recording". Now it's cool if they don't even see your camera.

    Go ahead, appeal it. Let's get the right to record police established nationwide.

    [SIG] 10/28/2017: Soylent Upgrade v14 []
    • (Score: 4, Insightful) by MrGuy on Monday December 17 2018, @01:52PM (9 children)

      by MrGuy (1007) on Monday December 17 2018, @01:52PM (#775379)

      "Go ahead and appeal it!" is a great idea if you're confident in a win.

      The Supreme Court currently has a conservative majority, which has tended to be less willing to be expansive of Bill of Rights issues beyond things mentioned in the text and/or existing Supreme Court precedent, and b.) even when it didn't, the modern Supreme Court is extremely "pro police." For example, recent jurisprudence on the notion of "qualified immunity" for police officers doing illegal things in performance of their duties has strongly favored protecting the police. It's not all bad - freedom of speech protections have NOT eroded despite frequent attacks, so the first amendment is alive and well.

      This issue somewhat splits those two recent trends, and it's not entirely clear (to me at least) which side the high court would come down on.

      • (Score: 3, Interesting) by takyon on Monday December 17 2018, @02:43PM (6 children)

        by takyon (881) <{takyon} {at} {}> on Monday December 17 2018, @02:43PM (#775396) Journal

        Maybe, but I don't think so.

        There's a lot of precedent to ignore. To my knowledge, all of the district courts that have looked at this issue, with the exception of the Eighth Circuit [], have sided with the right to record. And there are many cases of police misconduct being captured by people with cameras.

        SCOTUS conservatives aren't uniformly "evil" or anti-rights. The issue is also not as political as others they will decide on. It's a safe and sane interpretation of the First Amendment.

        Finally, SCOTUS probably isn't going to become more liberal anytime soon. The two oldest members are liberal-leaning, and then there's a 10-year age gap between Breyer and Thomas. Best case scenario, the court's political leaning remains exactly the same for the next 10-20 years. Worst case scenario, it gradually becomes more conservative. Waiting isn't going to help.

        [SIG] 10/28/2017: Soylent Upgrade v14 []
        • (Score: 2) by fyngyrz on Monday December 17 2018, @03:42PM (5 children)

          by fyngyrz (6567) on Monday December 17 2018, @03:42PM (#775421) Journal

          Best case scenario, the court's political leaning remains exactly the same for the next 10-20 years all the current members of the court are forcibly retired and replaced by legislative fiat during an all-liberal phase of congress and the executive.

          Considering what a lousy job SCOTUS has been doing, I think it'd be just the thing for them get a dose of their own medicine. I do think it's possible, too — there's been some pretty serious talk about term limits for them, for instance.

          As it stands, they've become a force for the very worst kind of cultural inertia.

          IMHO, of course.

          Some drink from the fountain of knowledge. Others gargle.

          • (Score: 2) by PartTimeZombie on Monday December 17 2018, @08:25PM (2 children)

            by PartTimeZombie (4827) on Monday December 17 2018, @08:25PM (#775537)

            Somebody's found a new tag!

            I like it. []

            • (Score: 2) by fyngyrz on Monday December 17 2018, @08:51PM (1 child)

              by fyngyrz (6567) on Monday December 17 2018, @08:51PM (#775550) Journal

              Somebody's found a new tag!

              That's right. []

              Jst Sy N to Lssy Cmprssn.

              • (Score: 2) by PartTimeZombie on Monday December 17 2018, @09:18PM

                by PartTimeZombie (4827) on Monday December 17 2018, @09:18PM (#775564)

                +1 Informative

                +1 Informative

                +1 Informative

                +1 Informative

                Bugger, it's stopped working.

          • (Score: 3, Interesting) by NewNic on Tuesday December 18 2018, @12:32AM (1 child)

            by NewNic (6420) on Tuesday December 18 2018, @12:32AM (#775659) Journal

            there's been some pretty serious talk about term limits for them, for instance.

            The only way that could be forced is a constitutional amendment, so it's not going to happen.

            An appointing President could demand that a nominee furnished a future-dated resignation letter before being nominated, but:
            1. That's potentially providing a weapon to a successor from a different party and
            2. The Supreme Court might decide that such letters are null and void. If the Supreme Court were to make such a decision, there is no way to appeal that.

            So, term limits for Supreme Court Justices: any talk of that is just a waste of time. It's not going to happen.

            lib·er·tar·i·an·ism ˌlibərˈterēənizəm/ noun: Magical thinking that useful idiots mistake for serious political theory
            • (Score: 2) by takyon on Tuesday December 18 2018, @03:43PM

              by takyon (881) <{takyon} {at} {}> on Tuesday December 18 2018, @03:43PM (#775863) Journal

              Term limits for SCOTUS will happen if it becomes clear that anti-aging could make them functionally immortal.

              It won't happen within the next 20 years or so, so it won't be soon enough to turn a conservative SCOTUS into a liberal one in the near term. I could also imagine that the amendment would specify a 30 or 40 year limit but grandfather in existing justices up to 60 years or something like that, just to make the transition smoother.

              It will be pretty clear that we don't want someone being appointed to SCOTUS at age 50 and remaining there until they're age 150. We just aren't at the point yet where that's possible and people realize that it's a potential problem.

              [SIG] 10/28/2017: Soylent Upgrade v14 []
      • (Score: 1, Touché) by Anonymous Coward on Monday December 17 2018, @03:20PM

        by Anonymous Coward on Monday December 17 2018, @03:20PM (#775409)

        "Go ahead and appeal it!" is a great idea if you're confident in a win.

        ... And you are rich.

      • (Score: 5, Interesting) by fyngyrz on Monday December 17 2018, @04:11PM

        by fyngyrz (6567) on Monday December 17 2018, @04:11PM (#775431) Journal

        ...freedom of speech protections have NOT eroded despite frequent attacks

        I think it's more accurate to say they have not eroded much further. Some free speech erosion-related issues just off the top of my head:

        There are also some new concerns that have arisen as social networks (for example, Facebook) take on the role of town squares; as the social networks are presently treated as purely private enterprises, they have the power and authority to control speech in their own venues. They can, and do, prevent people from taking part based on various criteria of their own. The ultimate result of this is effectively a muzzling of political speech as well as other speech. I think the question of how social networks should be treated with regard to speech and membership is an important one, although quite a thorny one.

        For my part, I don't buy any argument that uses the idea that "no one should ever read, hear, or see these ideas and/or these people" as in any way a point in favor of censorship.

        To somewhat mangle an oft-quoted maxim: "Repression. I know it when I see it." Also: Sweeping the trash under the bed just means you don't know what's festering under there.

        Don't anthropomorphize my t-shirt.
        It hates that.

  • (Score: 5, Touché) by The Mighty Buzzard on Monday December 17 2018, @12:25PM (1 child)

    If they're not doing anything wrong, they've got nothing to hide.

    My rights don't end where your fear begins.
    • (Score: 0) by Anonymous Coward on Tuesday December 18 2018, @06:51PM

      by Anonymous Coward on Tuesday December 18 2018, @06:51PM (#775964)

      I dunno, I might get on board with some Weihnachtsgans.