Phones Up, Don’t Shoot: Why the Right to Film Police Officers Must Be Recognized as Clearly Established

by Sarah Jana, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

On May 25, 2020, seventeen-year-old Darnella Frazier walked to a local convenience store to buy some snacks.¹ As she passed a parked police car, Frazier noticed four officers surrounding a man on the ground—one of them kneeling on the man’s neck.² As the man begged for his life, Frazier pulled out her cell phone and recorded the scene.³ She filmed for nine minutes and twenty seconds, capturing the last moments of George Floyd’s life.⁴ A few hours later, Frazier posted the video on Facebook, sparking protests nationwide.⁵

Citizen-filming of police officers has played an important role in the movement for police reforms—particularly the filming of encounters between Black citizens and white police officers.⁶ Black Americans are disproportionately more likely to face police brutality than their white counterparts.⁷ Recordings provide a counternarrative to officers’ explanations, leveling the playing field in a system that typically believes officers over plaintiffs or criminal defendants.⁸

But critically, the right to film police officers is not protected the same way everywhere in the United States.⁹ While courts across the country uniformly recognize that the right to film officers is protected by the First Amendment,¹⁰ not every court recognizes that the right is “clearly established” under the law.¹¹ This means that in some areas of the country, officers who use force or intimidation to prevent citizens from recording their actions, or retaliate against them for doing so, are entitled to qualified immunity—meaning they will not face legal liability for violating citizens’ rights.¹²

This article discusses how courts view the right to film police officers and argues that the Supreme Court should recognize that the right is “clearly established.”¹³ Part II will discuss qualified immunity and the split that has developed between circuits. Part III will explain how that split impacts the rights of citizens and the movement to protest police brutality across the country. Part IV will conclude.

II. Background

Qualified immunity is a judicially-created defense that protects government officials from liability in civil rights suits.¹⁴ The basic idea behind qualified immunity is that government officials should not be liable for actions that they didn’t know were wrong.¹⁵ Thus, the Supreme Court has declared that police officers are only liable if they violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”¹⁶

Officers are entitled to qualified immunity if (1) there was no violation of a constitutional right, or (2) the right was not “clearly established” at the time.¹⁷ The court needs to find only one of these prongs has been met to award qualified immunity.¹⁸ And under Pearson v. Callahan, courts have discretion in choosing the order in which these two prongs are addressed.¹⁹

Notably, circuits that have addressed the constitutionality of citizens filming police have unanimously concluded that the activity is protected by the First Amendment.²⁰ In Glik v. Cunniffe, for example, the First Circuit found that the First Amendment allows citizens to “gather news” about government officials to promote a stock of public information.²¹ The court declared that this right includes filming and is especially important because police are “granted substantial discretion that may be misused to deprive individuals of their liberties.”²² Ultimately, the First Circuit became the first to hold that the right was clearly established.²³

But critically, because Pearson allows courts to choose the order in which the two prongs of qualified immunity are considered,²⁴ some courts have avoided addressing the constitutional issue at all.²⁵ Since only one of the prongs needs to be established to grant qualified immunity, courts can choose the prong that requires the least amount of analysis to address first.²⁶ If a court does not want to address an underlying constitutional issue, it can take “the easy way out” and find that the right—even if protected by the Constitution—was not clearly established in the jurisdiction at the time.²⁷ Effectively, this entitles officers to qualified immunity without any discussion of the constitutionality of their actions.²⁸

When it comes to the filming of police, this constitutional avoidance is the route that some circuit courts have chosen to take.²⁹ In Szymecki v. Houck, for example, the Fourth Circuit affirmed qualified immunity for a police officer, declaring that a citizen’s “asserted” right under the First Amendment to record police activity “was not clearly established in [the] circuit at the time of the alleged conduct.”³⁰ Notably, the entire opinion was two pages long and did not discuss the actions of the citizen or officer or the nature of First Amendment rights at all.³¹ By jumping straight to the “clearly established” prong, the court dodged the question of whether the First Amendment protects the right to film police officers performing their public duties.³²

In the long-term, this evasion has serious consequences because it means that any constitutional rights that may exist remain unestablished in that jurisdiction for future cases.³³ Since Houk, for example, district courts in the Fourth Circuit have addressed the issue of citizens filming police officers at least four more times.³⁴ In three of the cases, the lower courts determined that the right to film police officers under the First Amendment was not clearly established within Fourth Circuit precedent and granted qualified immunity to police officers.³⁵ Had the Fourth Circuit actually addressed the issue of constitutionality in Houk, these courts may have decided differently.³⁶

Further, some courts have signaled that they will not address the constitutionality of the right even if police officers themselves are aware that filming is protected activity.³⁷ In Frasier, for example, a group of officers attempted to intimidate a citizen into giving up his tablet after he recorded the officers repeatedly hitting an arrestee in the face.³⁸ The officers even went so far as to take the tablet from the citizen and search for the video themselves.³⁹ But even though the citizen was able to prove that the officers in question had learned in training that the right to film was protected by the First Amendment, the court found the training was “irrelevant,” declaring: “[J]udicial decisions are the only valid interpretive source of the content of clearly established law.”⁴⁰ And although there were numerous similar cases in other jurisdictions affirming that the right existed, the court refused to consider them.⁴¹ The Tenth Circuit granted qualified immunity to the officers and refused to address the constitutionality of the right itself.⁴²

Practically, this split in qualified immunity analysis means that the right to film police officers is protected in some jurisdictions, but not others.⁴³ To date, only the First and Fifth Circuits have declared that the right is clearly established.⁴⁴ The Fourth and Tenth Circuits have refused to consider whether the right exists under the First Amendment at all.⁴⁵ And other circuits fall somewhere in between—some declaring that the right exists, but was not violated in the case;⁴⁶ others declaring that the right exists, but was not clearly established.⁴⁷

The right to film police officers performing their public duties is essential to challenging police narratives about encounters with citizens and helps to protect public information.⁴⁸ Simply put, the right is too important—particularly to communities of color—to allow it to remain unestablished.⁴⁹ The next section explains why the right to film police officers is essential and argues that the Supreme Court should explicitly declare that the right is clearly established.⁵⁰

III. Discussion

The Supreme Court should hold that citizens’ right to film police officers performing their public duties is clearly established under the First Amendment because officers must be accountable for deprivations of constitutional rights regardless of jurisdiction.⁵¹ Although some circuits are willing to look at precedent outside of their own jurisdiction for qualified immunity analysis, others are not.⁵² Because courts have discretion in whether to address the substance and source of the constitutional right, circuits that have dodged the question of constitutionality can continue to evade it—leaving the issue of the First Amendment right murky.⁵³

Further, some courts have signaled that the only thing that could make them declare that the right to film is clearly established is a decision from the Supreme Court.⁵⁴ The Tenth Circuit’s decision in Frasier, for example, suggested that no matter the training that officers receive or the number of other courts that decide the issue, it will not find that the right to film is clearly established until a higher court forces it to do so.⁵⁵ Practically, this leaves citizens without recourse when their First Amendment rights are violated.⁵⁶

First Amendment rights should not vary by zip code.⁵⁷ Courts have held that these rights are essential to freedom, particularly freedom from government misconduct and oppression.⁵⁸ And every court that has directly addressed the issue has determined that filming police officers does fall within the First Amendment’s protection.⁵⁹ If officers interfere with a citizen who is filming their actions peacefully, they should be accountable for the violation of constitutional rights no matter where in the nation the events take place.⁶⁰

And beyond the rights of the citizen who is filming, police officers must be accountable for constitutional violations because their actions could have the effect of chilling the speech of others.⁶¹ Sometimes when a citizen films a police officer, the officer may respond by preventing the citizen from recording,⁶² taking the citizen’s recording device,⁶³ or even arresting them in retaliation.⁶⁴ In some jurisdictions, officers who commit these actions would be entitled to qualified immunity, leaving the citizens without recourse for the violations of their constitutional rights.⁶⁵ If officers are not held accountable for these actions, other citizens could be deterred from pulling out their phones to record.⁶⁶

Additionally, while some argue that allowing citizens to film police officers may interfere with officers’ ability to do their jobs or could create a public safety concern,⁶⁷ those arguments fail to realize that First Amendment rights are never absolute.⁶⁸ Courts that have held that the right is clearly established under the First Amendment have found that it is subject to reasonable time, place, and manner restrictions.⁶⁹ In Glik, for example, the First Circuit noted that the plaintiff citizen who filmed officers arresting another man did so in a public park, from a suitable distance, and did not interfere with the arrest.⁷⁰ While the court found that the filming was “peaceful” and protected by the First Amendment, it suggested that other filming may not be.⁷¹

The right to film police officers is too important to vary by jurisdiction.⁷² Indeed, Judge Kermit V. Lipez of the First Circuit called the Glik decision “the most important opinion that [he has] ever written.”⁷³ Filming police officers helps to hold government officials accountable in a system that too often believes officers over citizens—particularly citizens of color.⁷⁴ Police misconduct occurs nationwide and the right to film police must be protected everywhere.⁷⁵

IV. Conclusion

Circuits across the country have taken different approaches when it comes to determining whether the right to film police officers exists and if it is clearly established—leaving the First Amendment rights of Americans in limbo.⁷⁶ This cannot continue.⁷⁷ The Supreme Court must declare that the right is clearly established and that police officers cannot—outside of reasonable time, place, and manner restrictions—interfere with filming or retaliate against citizens for doing so.⁷⁸ This is the only way to ensure that citizens’ First Amendment rights are protected regardless of jurisdiction and that police officers will be held accountable.⁷⁹

Cover Photo by Hossam el-Hamalawy on Flickr and licensed under CC BY 2.0.

Sarah Jana

Sarah Jana is a 3L at the University of Cincinnati College of Law. Prior to law school, Sarah received her undergraduate degree in Public Affairs from The Ohio State University and a master's degree in Elementary Education from Lesley University. Sarah writes primarily on topics involving education and civil rights law and hopes to work in the public interest field in the future.

References

1
Kermit V. Lipez, Filming the Police as Citizen-Journalists—A Tale of Two Heroes: What They Did, Why They Could Do It, and the Consequences for the Racial Divide in This Country, 22 J. App. Prac. & Process 29, 30 (2022).
2
Id.
3
Id.
4
Id. at 30-31.
5
Id. at 39-40.
6
In 1991, for example, a plumber with a video-camera filmed the beating of Rodney King by the Los Angeles police department. Id. at 39. The video was shown on news stations, putting the scene of brutality in the living rooms of millions of Americans. Id. In 2014, bystanders recorded Eric Garner gasping “I can’t breathe” eleven times as NYPD officers held him in a chokehold. Valencia J. Battle, Drop the Phone and Step Away from the Weapon: The First Amendment, the Camera Phone, and the Movement for Black Lives, 60 Howard L.J. 531, 554 (2017). Those words became a rallying cry for those fighting police brutality. Id. In 2015, Feidin Santana recorded a South Carolina officer shooting Walter Scott in the back as he attempted to flee after being pulled over for a faulty brake light. Id. at 554-55. A year later, Diamond Reynolds livestreamed Philando Castile bleeding from a bullet wound just moments after he was shot by an officer during a traffic stop. Id. at 555. These are but a few examples of the hundreds of Black Americans who have been killed by police over the last few decades. See Police Shootings Database 2015-2023, Wash. Post (last updated Feb. 15, 2023), https://www.washingtonpost.com/graphics/investigations/police-shootings-database/ [https://perma.cc/XBJ6-UURQ].
7
Joshua Sipp, Lights, Camera, Inaction: Advocating a Statutory Response to Protect the Right to Record Police Activity in Public, 33 Kan. J.L. & Pub. Pol. 95, 99 (2022).
8
Lipez, supra note 1, at 40.
9
See discussion infra Part II.
10
Id.
11
Id.
12
Id.
13
See discussion infra Part III.
14
Tyler Finn, Qualified Immunity Formalism: “Clearly Established Law” and the Right to Record Police Activity, 119 Colum. L. Rev. 445, 447 (2019).
15
Id. at 449.
16
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
17
Finn, supra note 14, at 448.
18
Id.
19
555 U.S. 223 (2009).
20
See Glik v. Cunniffe, 655 F.3d 78, 82-84 (1st Cir. 2011); Fields v. City of Philadelphia, 862 F.3d 353, 358-60 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 688-90 (5th Cir. 2017); Am. C.L Union of Ill. v. Alvarez, 679 F.3d 583, 595-600 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).
21
655 F.3d at 82 (citing First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978); Mills v. Alabama, 384 U.S. 214, 218 (1966)).
22
Id.
23
Id. at 82-85. See also Turner v. Lieutenant Driver, 848 F.3d 678, 688 (5th Cir. 2017) (finding that although the right to film police officers was not clearly established at the time of the case, it should be considered clearly established moving forward).
24
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
25
Brittany S. Mercer, Policing the Police: A “Clearly Established” First Amendment Right to Record The Police, 41 Am. J. Trial Advoc. 187, 193 (2017) (“After Pearson, a federal court is more likely to find the right to record the police has not been clearly established rather than engage in a constitutional analysis of the facts.”).
26
Id.
27
See Fields v. City of Philadelphia, 862 F.3d 353, 357 (3d Cir. 2017) (“Defendants ask us to avoid ruling on the First Amendment issue. Instead, they want us to hold that, regardless of the right’s existence, the officers are entitled to qualified immunity . . . . We reject this invitation to take the easy way out.”).
28
Mercer, supra note 24, at 193.
29
See Szymecki v. Houck, 353 Fed. App’x 852, 853 (4th Cir. 2009); Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021).
30
353 Fed. App’x at 853.
31
Id.
32
Id.
33
See Finn, supra note 14, at 466-67.
34
See Hulbert v. Pope, 535 F. Supp. 3d 431 (D. Md. 2021), reconsideration denied, No. CV SAG-18-00461, 2021 WL 4640668 (D. Md. 2021); Sharpe v. Winterville Police Dept., 480 F. Supp. 3d 689 (E.D.N.C. 2020), aff’d, 59 F.4th 674 (4th Cir. 2023); J.A. v. Miranda, No. CV PX 16-3953, 2017 WL 3840026 (D. Md. 2017); Garcia v. Montgomery Cnty, 145 F. Supp. 3d 492 (D. Md. 2015).
35
See Sharpe, 480 F. Supp. 3d at 697; Miranda, 2017 WL 3840026 at *6; Garcia, 145 F. Supp. 3d at 508.
36
See Finn, supra note 14, at 467 (“Because of discretionary sequencing, qualified immunity has the perverse effect of preventing right from becoming clearly established.). In the fourth case, Hulbert v. Pope, the District Court of Maryland decided to look outside of Fourth Circuit precedent and determined that the right was clearly established based on cases from other circuits. 535 F. Supp. 3d at 450. Hulbert has since been appealed, placing the issue of filming police before the Fourth Circuit again. Hulbert v. Pope, 21-1608. Whether the court will choose to directly confront the First Amendment right—or lack thereof—this time remains to be seen.
37
See Frasier v. Evans, 992 F.3d 1003, 1023 (10th Cir. 2021).
38
992 F.3d at 1010-12.
39
Id.
40
Id. at 1019.
41
Id. at 1021-23.
42
Id.
43
See Finn, supra note 14, at 465.
44
See Glik v. Cunniffe, 655 F.3d 78, 82-84 (1st Cir. 2011); Turner v. Lieutenant Driver, 848 F.3d 678, 688-90 (5th Cir. 2017).
45
See Szymecki v. Houck, 353 Fed. App’x 852, 853 (4th Cir. 2009); Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021).
46
See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Robbins v. City of Des Moines, 984 F.3d 673, 678-79 (8th Cir. 2021).
47
See Fordyce v. City of Seattle, 55 F.3d 426, 429-40 (9th Cir. 1995); Fields v. City of Philadelphia, 862 F.3d 353, 360-62 (3d Cir. 2017).
48
See Lipez, supra note 1, at 40-41.
49
Id.
50
See discussion infra Part III.
51
See Finn, supra note 14, at 465.
52
Compare Glik v. Cunniffe, 655 F.3d 78, 82-84 (1st Cir. 2011) (citing cases from other jurisdictions to support its First Amendment analysis) with Frasier v. Evans, 992 F.3d 1003, 1023 (10th Cir. 2021) (“[T]he out-of-circuit authorities that [the plaintiff] cites do not convince us that . . . reasonable officers in the positions of the officer defendants here would have had ‘fair notice that their conduct was unlawful.’”).
53
See Finn, supra note 14, at 466 (“The result [of qualified immunity] is unsettled law, insulation from liability, and a stagnant jurisprudence that provides little guidance on the scope of constitutional rights.”).
54
See Frasier v. Evans, 992 F.3d 1003, 1019-23 (10th Cir. 2021).
55
See id. at 1019 (“[I]t is beyond peradventure that judicial decisions concretely and authoritatively define the boundaries of permissible conduct in a way that government-employer training never can.”).
56
See Finn, supra note 14, at 471 (explaining that Monell liability is not a useful avenue for citizen recorders to hold officers accountable); Mercer, supra note 25, at 206 (noting that “internal investigations of police officers do not always hold officers accountable for violations”).
57
See Finn, supra note 14, at 465.
58
See First Nat’l Bank v. Bellotti, 435 U.S. 765, 777 (1978) (“Freedom of expression has particular significance with respect to government because it is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.”).
59
See Glik v. Cunniffe, 655 F.3d 78, 82-84 (1st Cir. 2011); Fields v. City of Philadelphia, 862 F.3d 353, 358-60 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 688-90 (5th Cir. 2017); Am. C.L Union of Ill. v. Alvarez, 679 F.3d 583, 595-600 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).
60
See Finn, supra note 14, at 465.
61
Id. at 474-75.
62
See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017) (describing an officer pinning a member of a police watchdog group against a pillar for one to three minutes to prevent her from recording an arrest).
63
See id. (describing an officer confiscating a citizen’s cell phone after he took a photo of officers breaking up a house party).
64
See Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995) (describing an officer arresting a citizen for videotaping at a public protest march).
65
Finn, supra note 14, at 474-75.
66
Id.
67
See, e.g., Am. C.L. Union. v. Alvarez, 679 F.3d 583, 611-12 (7th Cir. 2012) (Posner, J., dissenting) (“The constitutional right that the majority creates is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty . . . . To distract police during tense encounter with citizens endangers public safety and undermines effective law enforcement.”).
68
See Elrod v. Burns, 427 U.S. 347, 360 (1976) (“[T]he prohibition on encroachment of First Amendment protections is not an absolute. Restraints are permitted for appropriate reasons.”).
69
See, e.g., Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (“To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions.”); Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (“We do not say that all recording is protected or desirable. The right to record police is not absolute. It is subject to reasonable time, place, and manner restrictions.”) (citation omitted); Robbins v. City of Des Moines, 984 F.3d 673, 678 (8th Cir. 2021) (“Assuming [plaintiff] had a constitutionally protected right to record as he was doing in this case, that right is not absolute.”).
70
655 F.3d at 84.
71
Id.
72
See Mercer, supra note 25, at 206-09.
73
Lipez, supra note 1, at 31.
74
Id. at 40-41.
75
See Finn, supra note 14, at 465.
76
See discussion supra Part II.
77
See discussion supra Part III.
78
Id.
79
Id.

I. Introduction

II. Background

III. Discussion

IV. Conclusion

Author

References