Fifth Circuit holds that First Amendment protects the right to record the police [pdf]

Wow. That's pretty bad.

I have a similar story of inept police and injustice:

I have an uncle who is a real piece of work. A druggie who my great-grandparents adopted, raised and supported until they both died.

One night he was at my great-grandparents house, harrassing them for money and threatening them. My poor great-grandfather, a 71 year old man at the time, called 911. The operator heard my uncle scream something about killing my grand-grandmother. I guess he was coming off of drugs.

By the time the local sheriff's office responded to the call, my uncle Tim was long gone. The only male present was my 71 year old great-grandfather, so the two deputies incompetently assumed he was the perpetrator.

They didn't even let him put on shoes.

They manhandled my poor grandfather. They took him to jail and he slept on the floor of a cell. He was extremely injured, my mother was furious and encouraged him to press charges. But he was a stubborn old man who spent most of his life as a fire-and-brimstone pastor of a church, in other words he was too polite to take them to court.

The pictures of his injuries are burned into my brain. Massive scrapes, his thin skin peeled back. Bruises all over his face and body. The idea of him sleeping on the floor of a cell...absolutely sickening.

He died a few years later, stomach cancer. He was a great man. I miss him.

p.s. I also have a story of that same department doing me great justice, so keep in mind that it was the two assholes who responded, not the entire sheriff's office that was to blame.

Some of those deputies were good people who saved my ass a few times, let me off the hook a few times, etc. I will say that I'm glad to have moved, though.

>"Edward Anthony Anderson, January 15, 1996, shot while handcuffed and on the ground. Frankie Arzuega, fifteen years old, January 12, 1996, shot in the back of the head; the following Mother’s Day, his family received taunting phone calls from anonymous sources: they dialed *69 (call back) and the police answered. Anthony Baez, December 22, 1994, chocked to death for playing football on the streets of New Your City. Rene Campos, whom police said committed suicide in custody by stuffing more than half his T-shirt down his own throat, reaching three-quarters of the way down to his lungs. Garland Carter, seventeen years old, January 8, 1996, shot in the back by police who earlier that day had driven by his home, making their fingers into the shape of a gun and “firing.” Angel Castro, fifteen years old, October 23, 1996. Having already moved out of a neighborhood because of death threats from the police, Castro rode his bike back to the neighborhood to a friend’s birthday party: He accidentally ran into a police cruiser, breaking his teeth, and as he rose from the ground a cop shot him. Sherly Colon, April 25, 1997, pushed off the roof of a housing project, after which police removed the cuffs which had held her hands behind her back….The list is as long as you want to make it..." –The Culture of Make Believe, Derrick Jensen

The Culture of Make Believe is a very difficult book to get through. The author talks about hate crimes and power, and how we've developed these very odd cultural norms around violence. It's pretty depressing.

What makes you think the police care about bad press?

First of all, this kind of thing happening on any scale is something to worry about.

Second, considering that we know there are instances of it, we're faced with a question. Which is more likely?

1. The officer(s) in question suddenly and for no discernible reason completely snapped and committed actions they knew were immoral and illegal and which they had been trained and conditioned by the culture of their department never to do under any circumstances, or

2. The officer(s) in question were trained and worked their entire careers in a culture in which abuse of authority was routine, accepted and unquestioned, to such a degree that they felt it was the natural course of things and that no significant consequences would fall on them.

Time and again, investigation of corrupt and abusive police departments has turned up evidence for case (2) and not for case (1). We should be assuming case (2) unless and until we see significant evidence otherwise.

Thank you for clarifying some of the mysticism behind all of this. I had no idea QI even existed.

There are a ton of laws about what you can or cannot record and what you are allowed to do with your recordings. Some activities you do have a protected right to privacy like healthcare access.

I agree you should be allowed to record anything a police officer does in the line of duty. I'm all for going one step further and requiring all uniformed police officers to wear bodycams at all times. But we just shouldn't set the bar at "if I can see it or hear it I can record it".

You may be right, what specific meaning is that? I mean that there are many possible outcomes of something like a traffic stop and shoving a camera in the officer's face is probably not the best way to get a warning.

It is far too high a bar. The police have always been very resistant to actually allowing the freedom the Constitution promises. This is only the latest example.

One could wish for the police to just be decent people, and one could wish for a billion dollars. If wishes were horses ...

I don't understand this focus on the unions. as far as I can tell the entire* justice system acts as if this kind of extra-legal violence and coercion is necessary to keep the peace. cops, judges, prosecutors, elected officials, correctional facilities are all in on it.

it seems like it would be more useful to bring it out in the open and discuss whats correct rather than pretending everyone has certain rights and simultaneously building institutions which systematically violate them.

> that wasn't clearly established at the time of the incident.

Silver lining: it is now (in the jurisdiction of the fifth circuit).

No, because they have firmly established that right by this very ruling.

"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. "

In the US, the law is a combination of the written letter of the law and the interpretation courts have given to that letter via precedent. This extends to the Constitution. If there aren't rulings about an issue close enough to the one at hand, then the law is, in fact, unknowable.

In addition, qualified immunity applies to civil suits, not criminal cases. If a prosecutor had deemed the officers' behavior worth prosecuting as a crime, qualified immunity would not help them (though I don't know if something equivalent exists for criminal offenses).

To recap, qualified immunity gives government officials cover from civil actions when the law is unknowable.

(Erm…disclaimer: IANAL)

If you have a record of a government official ordering you under the color of law to turn it off, you have all the story you need.

How often are you in confrontational encounters with the police?

There's a concept in law enforcement called a "lawful order", which is when a police officer orders you to do something and if you don't comply, he can arrest you for obstruction. The thing is, the order must truly be lawful; he can't order you to do something illegal, and he can't order you to (for example) take off your clothes or give him your money.

Typically a lawful order will be something like during a domestic dispute, ordering one of the parties to find somewhere else to stay for the night and not to return home for a certain number of hours (a "cooling off" period). This avoids an arrest for domestic violence, which carries harsh repercussions even if the aggressor is found not guilty, and gives both parties a chance to work on their issues (as well as gives the victim time to leave safely if necessary). Another example might be in a civil dispute, where one party claims ownership of a 50 year old vehicle and the other party disputes this, and there isn't enough documentation to support either party's claim. The police are called, and the officer issues lawful orders to both parties to not touch the vehicle until they've sorted it out in court. If one of the parties tries to take possession of the vehicle later that day, they can be arrested by that officer.

The problem with the camera issue and lawful orders is that some jurisdictions have statutes prohibiting video and/or audio recording of the police or other government workers, and this empowers the police to issue locally lawful orders to stop recording. However, if this ruling carries any weight, the Constitutional right to record will theoretically trump the local restriction, rendering the order no longer lawful.

All of that said, even if the order is supposedly lawful, I agree that you should keep recording and ask for a supervisor. In some jurisdictions you may end up arrested for obstruction, but chances are the supervisor will realize the implications of continued harassment of a lawfully recording citizen and drop the issue.

> Your goal should be to survive the encounter and not be convicted of a crime.

This is how rights are eroded. Your goal should be to live in a free society; capitulating to illegal civil rights infringements is not how to achieve that goal.

But which scenario is more likely to foment such an encounter? The one where the officer thinks he's being recorded? Or the one where he doesn't?

To be clear, do you mean police are as a matter of course explicitly trained to react with verbal and physical abuse as a tool of law enforcement, or that a tendency to escalate is a byproduct of their training?

These seem very, very different to me, and in particular, if you assert it's the former, I'd appreciate evidence of that.

Install an insta-streaming app that will live copy your video to either your own server or a service if it can get Internet. Test it.

You should always film. They might get angry, and that's usually a sign you shouldn't stop filming. Having something that auto-transmits/saves your video might be the only thing that will help you later should they destroy your recording device.

You might end up in jail, with harsh charges, but at least you have evidence you can present to a lawyer ... well that is if you can afford one.

I should have said it more precisely. That a given circuit court is only mandatory in its jurisdiction (the district courts in that circuit or that circuit court itself) whereas outside of that circuit it is persuasive. My language about guidance was imprecise, but not exactly wrong.

http://faculty.law.lsu.edu/toddbruno/mandatory_v__persuasive...

If something is not based on race, how can it be racist? That makes no sense at all.

Fields v. City of Philadelphia:

"We have not found, and the experienced counsel have not cited, any case in the Supreme Court or this Circuit finding citizens have a First Amendment right to record police conduct without any stated purpose of being critical of the government. Absent any authority from the Supreme Court or our Court of Appeals, we decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions."

Not a lawyer, but I work with some.

Each of these (except the last) is an abbreviated citation to a published court opinion cited earlier in the decision.

Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 595–602 (7th Cir. 2012)

Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.), cert. denied, 531 U.S. 978 (2000)

F.3d is an abbreviation for Federal Reporter, 3rd series (the current series of the Federal Reporter, which publishes Federal appeals court decisions ).

When you see a citation like x F.3d y, it means "Federal Reporter, 3rd series, volume x, page y". The form "x F.3d at z" means "volume x, page z, but that's the middle of a decision, not its start" (called a "pin cite"). The form "x. F.3d y, z" is another way of saying "the decision starts at page y of volume x, but here we are specifically referring to page z".

The part in parentheses indicates which particular court wrote the decision (a particular numbered circuit court of appeals) and in what year.

https://en.wikipedia.org/wiki/Federal_Reporter

https://en.wikipedia.org/wiki/United_States_courts_of_appeal...

You can often look up the texts of these decisions online in various places, although I don't see a convenient up-to-date free F.3d online anywhere. Originally the concept was going to a library, which would have huge long series of reporters (books that publish court decisions), and you could tell the librarian "I'd like volume 655 of the Federal Reporter 3rd series, please", and then turn to page 85 to see what the First Circuit said on the page in question of its Glik decision.

District court decisions (from the trial level) are cited in the same way but with "F.Supp." (a different reporter); Supreme Court decisions are also cited in the same way but the reporter is "U.S." and the court doesn't have to be mentioned in parentheses, because the Supreme Court is the only court whose decisions are published by United States Reports.

So you might see

Foo v. Bar, x F.Supp. y (D.Somewhere yyyy) ← district court

Foo v. Bar, x F.3d y (nth Cir. yyyy) ← circuit court of appeal

Foo v. Bar, x U.S. y (yyyy) ← Supreme Court

and each one could also cite to a specific page or range of pages within the opinion by using "at z" or "y, z".

Not prescient. Better informed, perhaps.