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

Accepted submission by takyon at 2017-02-17 18:22:29
Digital Liberty

The United States Court of Appeals for the Fifth Circuit [wikipedia.org] 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 [documentcloud.org], Phillip Turner, was recording a Fort Worth police station [youtube.com] (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. ยง 1983 [cornell.edu], 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 [youtube.com] (10:59 YouTube).

From Cornell's Legal Information Institute [cornell.edu], "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:

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