Feb 21 2017

The right to record police anonymously

The 5th Circuit Court of Appeals has joined other Courts of Appeals in finding that the First Amendment protects the right to make audio and video recording of police activities in public places, including recording police officers and vehicles outside a police station  from a public sidewalk.

The Court also found that Texas Penal Code § 38.02, interpreted in light of the decision of the US Supreme Court in Hiibel v. Nevada, does not and could not Constitutionally authorize an arrest solely for refusal to identify oneself, in the absence of some predicate basis for legitimate suspicion of violation of some other law.

In the 5th Circuit, it is now clearly established law that you can record the police anonymously in public places, without fear of arrest unless there is probable cause to believe that you have violated some other law.

The ruling in  Turner v. Driver et al.  is the the second decision this month by different three-judge panels of the 5th Circuit interpreting the Constitutional limits on Texas ID law, as applied to people engaged in activities protected by the First Amendment in public places. An earlier decision upheld the right to anonymity for a protester standing along a highway (where the sidewalk would have been, if there had been a sidewalk) adjacent to the parking lot of a strip of businesses.

Phillip Turner is a “citizen journalist and video activist” with the handle of “The Battousai” who produces this YouTube channel. He sued three Fort Worth police officers who seized him, handcuffed him,  twisted his wrists, locked him in the back of a police car (with the windows closed and no ventilation in the midday Texas sun), and seized and shut off his video camera, in the incident shown in this (interrupted) video.

As has been typical in similar Federal civil rights cases cases including that of Phil Mocek (who was falsely arrested for audio and video recording at a TSA checkpoint at the airport in Albuquerque), the outcome of the case depended not just on whether the plaintiff’s rights had been violated (which none of the defendants denied), but whether those rights were “clearly established” or whether the court could later imagine that the defendants might have had (regardless of whether they actually had) a “reasonably mistaken belief” that their actions were legal.

We don’t see any legitimate reason why ignorance of the law should be a defense for police or other government agents, but not for civilians. Police ought to held to a higher, not a lower, standard of knowledge of the laws they are supposed to enforce. But that’s the case law on “qualified immunity.”

The 5th Circuit panel found that the police might not have realized that stopping people from recording their activities was unconstitutional:

The district court stated that circuit courts “are split as to whether or not there is a clearly established First Amendment right to record the public activities of police.” The circuit courts are not split, however, on whether the right exists. The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties. In American Civil Liberties Union v. Alvarez, the Seventh Circuit explained that the First Amendment protects the audio recording of the police and concluded that an Illinois wiretapping statute, which criminalized the audio recording of police officers, merited heightened First Amendment scrutiny because of its burdens on First Amendment rights. No  circuit has held that the First Amendment protection does not extend to the video recording of police activity….

We cannot say, however, that “existing precedent … placed the … constitutional question beyond debate” when Turner recorded the police station. Neither does it seem that the law “so clearly and unambiguously prohibited [the officers’] conduct that ‘every reasonable official would understand that what he is doing violates [the law].’”

In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turner’s activities. All three officers are entitled to qualified immunity on Turner’s First Amendment claim.

The Court of Appeals could have stopped there, but it didn’t. It went out of its way to give police and other government officials notice of the law and a warning that they would not be able to escape liability on the basis of such a claim of “reasonably mistaken belief” about the law in the future:

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….

Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy….

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.

Finally, the Court of Appeals reinstated Mr. Turner’s complaint against the police for false arrest, reiterating that it is well-established law that failure to show ID is not and cannot be, in and of itself, lawful grounds for an arrest:

When a police detention amounts to a warrantless arrest, as Turner has alleged it did here, the arrest must be accompanied by probable cause…. Based on the allegations of Turner’s amended complaint, the officers lacked probable cause to arrest him, and the officers do not dispute this…. The only potential reason the officers gave Turner for arresting him that can be gleaned from the amended complaint is Turner’s failure to identify himself: He alleges that, after he was handcuffed, Grinalds told him “[t]his is what happens when you don’t ID yourself.” But the police cannot arrest an individual solely for refusing to provide identification. We are satisfied that Turner has alleged a violation of his Fourth Amendment right to be free from unlawful arrest… [N]o objectively reasonable person in these officers’ position could have believed that there was probable cause to arrest Turner under the circumstances alleged in the amended complaint. Grinalds and Dyess are therefore not entitled to qualified immunity at this stage of the litigation on Turner’s Fourth Amendment claim that the officers violated his right to be free from warrantless arrest absent probable cause.

The case has now been remanded to the District Court for trial or other further proceedings on the merits of Mr. Turner’s civil rights complaint of false arrest.

One thought on “The right to record police anonymously

  1. Pingback: Papers, Please! » Blog Archive » “Border” search and ID demand from passengers on a domestic flight

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