Observe, Record, and Report: Fighting Police Misconduct in the Technological Age

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

The advancement of technology serves many beneficial purposes, but it also raises constitutional issues not before considered. Recording public officials, specifically police officers, is increasingly becoming a tool for individuals who have been pulled over, engage in civil disobedience, or witness an interaction between a civilian and an officer to draw attention to police misconduct and excessive force. Facebook now also allows a Live[1] feature. Moreover, as the focus on race and policing in America continues to be discussed, the question of whether recording public officials is a right guaranteed by the First Amendment requires an answer now more than ever. The Supreme Court has never ruled on this question, but several circuit courts have considered it. Most of the circuit courts have ruled that there is a First Amendment right to record public officials, specifically on matters of public interest.[2] While other courts have declined to hold a First Amendment right was “clearly established” at that time in their circuits, no circuit court has ever rejected the complete existence of the right.[3] However, in a recent decision, a district court in the Third Circuit has placed a significant limitation on that right.[4] There is an urgent need for all the circuit courts to recognize that individuals have a First Amendment right to record public officials. Otherwise, the Supreme Court will be obliged to step in and officially recognize the right to record public officials as a protection under the First Amendment.

Humble Beginnings of a Recognized Right

The right to record has evolved since 1995, when the Ninth Circuit alluded to the right to record in Fordyce v. City of Seattle, ruling that there was a First Amendment right to gather news, specifically when that news related to matters of public interest.[5] In Fordyce, an individual recorded bystanders at a protest and was arrested for violating the state’s wiretapping statute.[6] The court granted qualified immunity[7] to all but one officer because there was a genuine dispute as to whether the officer interfered with the individual’s right to gather news.[8] Referring to the Fordyce opinion, the Eleventh Circuit in Smith v. City of Cumming, held that the First Amendment protects the right to gather information about what public officials do on public property.[9] Eleventh Circuit, citing Nixon v. Warner Communications, Inc.,[10] reaffirmed that the “press generally has no right to information superior to that of the general public.”[11] However, the Eleventh Circuit also noted that this right is subject to reasonable time, manner, and place restrictions.[12]

Interpreting Wiretapping Statutes

The First Circuit, in Glik v. Cunniffe, held that an individual’s right to record public officials, including police officers, in a public space while performing their duties is a “basic, vital, and well-established liberty safeguarded by the First Amendment.[13] In Glik, the plaintiff witnessed the arrest of an individual and, concerned that the police were using excessive force, began recording the incident on his phone.[14] The officers confronted the plaintiff and asked if his phone recorded audio.[15] When the plaintiff confirmed that his phone did, the officers arrested him for violating the state wiretapping statute.[16] The First Circuit held that the right to record public officials was “clearly established,”[17] and that the officers could not assert qualified immunity for depriving the plaintiff of a constitutional right.[18] Following this decision, the Seventh Circuit, in ACLU v. Alvarez, granted an injunction to prohibit the state government from enforcing its wiretapping law against individuals recording police officers in public spaces.[19] In Alvarez, the ACLU wanted to implement a “police accountability program,” but was concerned that their videographers would be arrested.[20]

However, both the Third and Fourth Circuits have found that even if a First Amendment right to record public officials does exist, the right was not “clearly established” in their Circuits and subsequently granted qualified immunity to the police officers in question.[21] In Kelly v. Borough of Carlisle, the Third Circuit evaluated a case concerning the recording of a traffic stop.[22] The wiretapping statute required a reasonable expectation of privacy before a violation would incur.[23] However, the court in Kelly found that the right to record officers during a traffic stop was not yet clearly established in that circuit.[24] They further noted that even if there is a general right to record matters of public interest, it was not absolute and would be subject to time, manner, and place restrictions.[25]

District Court Places Significant Limitation on the Right

While the Circuit Courts generally agree that the First Amendment guarantees the right to record public officials, one District Court recently rejected that theory and placed a significant limitation on that right.[26] In Fields v. City of Philadelphia, the court ruled that, absent any challenge or criticism of the police conduct, there was no First Amendment right to “observ[e] and record[]” the conduct.[27] The court rejected the plaintiff’s argument that observing and recording police conduct was expressive conduct, protected by the First Amendment.[28]  Since the court disagreed that this was expressive conduct, they held that the plaintiffs did not exercise a constitutionally protected right, and therefore, suffered no retaliation for exercising that right.[29]

This holding is troublesome. Requiring an individual to announce their purpose in recording public officials, compromises the reason for recording. Once a police officer is put on notice that they are being recorded, the officer will promptly stop engaging in misconduct; this makes it difficult to record police misconduct. As more police brutality is brought to light by video recordings, it is apparent that catching bad cops violating the Constitution is an effective way of deterring police misconduct. The publicized recordings of this misconduct is also important as the country addresses institutional problems and racial injustice in police enforcement.

The Priority of a Consistently Recognized Right

Most importantly, recognition of a First Amendment right to record public officials would permit a claim under 42 U.S.C. § 1983, if police officers violate that right.[30] The police may not make a retaliatory arrest of a person for exercising a federally recognized right. The right to record public officials pursuant to the First Amendment while those officials are engaged in their official duties is one such federally recognized right.

While some of the circuit courts have found that such a right exists, it is still not a right widely held across the nation. This poses significant problems with judicial efficiency, consistency among the courts, and, most importantly, for the protection of the right for citizens of the circuits that do not recognize the right. The Supreme Court has never specifically ruled on this issue. While circuit courts may function as persuasive authority among one another, they do not hold any mandatory precedential value. This is shown in Fields; without any real precedent to follow, the court failed to recognize the right established in other circuits and has essentially rejected the right altogether.

Furthermore, inconsistency exists among the courts that needs resolved. Constitutional rights that should be considered clearly established should not have different meanings depending on where you live in the United States. The fact that an individual who lives in Maryland and another who lives in South Carolina could both record a police officer under the same facts and circumstances, but only one has a remedy under the Constitution is unconscionable. That is not equal justice under the law.

Moreover, the right to collect news and distribute information, specifically as it relates to matters of public interest, should not be interfered with.[31] The ability for the general public to evaluate the performance of their public officials is an important tool that allows us to draw attention to police misconduct and other matters of public interest. Without accurate information, Americans do not have the resources to make informed decisions about matters of public interest, specifically those regarding individuals who make and enforce our laws.

Additionally, states have begun taking action in response to this right, both positively and negatively. Colorado is considering a bill that allows a $15,000 fine for a public official who interferes with an individual’s right to record and collect information.[32] However, there are also states attempting to enact legislation that limits the right to record public officials, and even some that dispose of the right altogether. In Arizona, a bill is being considered that would limit the ability to film police under specific circumstances.[33]

Unfortunately, the Circuit Courts may be unable to remedy the inconsistencies across the nation. If that is the case, the Supreme Court will need to step in. Until a Supreme Court case is heard, the decisions of the Circuit Courts are the highest precedent available. The weight of the numerous Circuit Courts’ decisions lays favorably on the Supreme Court recognizing a right to record public officials in public areas.

Conclusion

The right to record public officials should be recognized by all the courts. The discord between the circuits is dangerous. The refusal to recognize the right to record public officials by some of the Circuit Courts provides less protection to citizens of that circuit. The refusal also limits the ability to check on police procedures and misconduct in those circuits. The people have a right to information regarding public interest as the information affects their daily lives and well-being. Placing limitations on this right suppresses the individual protections and silences voices. Recognizing this right is no longer a mere placation, it is a protection from abuse of power and overzealous officials.

[1] Facebook Live is a new feature on Facebook that allows users to post real time videos directly from their phone or tablets. https://live.fb.com/about/.

[2] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).

[3] Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir.); Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir.).

[4] Fields v. City of Phila., 166 F. Supp. 3d 528 (E.D. Pa. 2016).

[5] Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).

[6] Id. at 438.

[7] The qualified immunity doctrine protects government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[8] Id. at 442.

[9] Smith, 212 F.3d at 1333.

[10] 435 U.S. 589, 609 (1978).

[11] Smith, 212 F.3d at 1333.

[12] Id.

[13] Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011).

[14] Id. at 79.

[15] Id. at 80.

[16] Id.

[17] “Clearly established” means that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

[18] Id. at 85.

[19] ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012).

[20] Id.

[21] Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010); Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009).

[22] Kelly, 622 F.3d at 251.

[23] Id. at 257.

[24] Id. at 263.

[25] Id. at 262.

[26] Fields v. City of Phila., 166 F. Supp. 3d 528 (E.D. Pa. 2016).

[27] Id.

[28] Id.

[29] Id.

[30] 42 U.S.C. § 1983 (Lexis). § 1983 permits individuals to sue government officials acting under color of law when the official deprives them of a right, privilege, or immunity granted by the Constitution or federal statute.

[31] Absent reasonable time, manner, and place restrictions.

[32] Counter Current News Editorial Team, Colorado To Fine Cops Every Time They Try To Stop You From Recording Them, Counter Current News (Feb. 23, 2016), http://countercurrentnews.com/2016/02/colorado-to-fine-cops-15000-every-time-they-try-to-stop-you-from-recording-them/#.

[33] Id.

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