Civil Liability
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Video and Audio Taping by Citizens

     Monthly Law Journal Article: Videotaping and Police Behavior, 2011 (6) AELE Mo. L. J. 501.
     Monthly Law Journal Article: Video and Audio Taping Police Activity, 2012 (7) AELE Mo. L. J. 201

     A county State’s Attorney notified a man that his recording of a meeting between him and the police chief violated a state statute, and that the violation was a felony. A federal appeals court ruled that the recording did not violate the state statute, so the threatened prosecution had no basis in the law. In this case, at no point did the chief, or any participant in the meeting, exhibit any expectation of privacy. Nor was there advance notice or published or displayed rules that established confidentiality and certainly none that prohibited note taking or recordings. Furthermore, the meeting fell within the "uttered at a public meeting" exception of the statute, and the circumstances did not justify an expectation of privacy. Because the court resolved the case under state law, it did not need to reach the constitutional issue of whether the recording was protected by the First Amendment. McDonough v. Fernandez-Rundle, #15-14642, 862 F.3d 1314 (11th Cir. 2017).

    A woman who was part of a “police watchdog” organization went to an “anti-fracking” demonstration at a convention center, carrying both a camera and identification as a “legal observer.” She attempted to record police officers arresting one of the protesters. While she did not interfere with the arrest, an officer pinned her against a pillar and thus prevented her from observing or recording the arrest. A male university student, in a separate incident, was on a public sidewalk observing officers across the street engaged in breaking up a party. When he took a photo, an officer ordered him to leave. When he refused, he was arrested and his phone was confiscated and searched. He was given a citation for “Obstructing Highway and Other Public Passages.” The charge was later dropped. The two sued the city, claiming unlawful First Amendment retaliation. A federal appeals court found that the First Amendment protects the photographing or otherwise recording police carrying out their official duties in public. It noted that every federal appeals court circuit that had addressed the issue has reached the same conclusion, including the First, Fifth, Seventh, Ninth, and Eleventh Circuits. Fields v. City of Philadelphia, #16-1650, 2017 U.S. App. Lexis 12159 (3rd Cir.).

      A man who was arrested while he was video recording a police station from a public sidewalk and refused to identify himself sued three officers and the city, claiming that the arrest violated his Fourth and First Amendment rights. He had been handcuffed and placed in the back of a patrol car, and released after a supervisor arrived. The individual defendants were entitled to qualified immunity as to plaintiff’s First Amendment claim because there was no clearly established right to record the police at the time of his activities. The appeals court ruled prospectively, however, that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions. The officers were also entitled to qualified immunity as to the plaintiff's Fourth Amendment unlawful detention claim, but his unlawful arrest claim survived because the officers’ actions were disproportionate to any potential threat that he posed or to their investigative needs. Turner v. Driver, #16-10312, 2017 U.S. App. Lexis 2769 (5th Cir.).
    A county police department reached a $200,000 settlement with a freelance videographer arrested for filming police activity on a public street. In addition to paying the money, the county agreed to develop and implement training for officers on citizens' First Amendment rights to record public police activity. The plaintiff, a freelance journalist, was filming the scene of a police chase when the police told him to leave. He moved a block away and continued filming from a public area. Then, despite showing his press credentials, his camera was confiscated and he was arrested on charges of obstruction. Datz v. Suffolk County, #12-CV-1770 (E.D.N.Y. May 7, 2014).
     Under an arrestee's version of the facts, she had a clearly established First Amendment right to film police carrying out a traffic stop in public. There was no reasonable restriction imposed or in place, as there was not even a police order to leave the area or stop filming. The officers were not entitled to qualified immunity for arresting her for wiretapping in alleged retaliation for her trying to film the officer making a late night traffic stop. Gericke v. Begin, #12-2326, 2014 U.S. App. Lexis 9623 (1st Cir.).
    A photojournalist sued police officers who arrested him for taking their pictures arresting a man while on duty. The U.S. Department of Justice issued a statement supporting the constitutional rights of the plaintiff to take the pictures under the First and Fourth Amendments. The statement upholds citizens’ constitutional rights to record police officers in their public capacity without being arrested or having their recordings unlawfully seized. Garcia v. Montgomery County, Maryland, #8:12-cv-03592, U.S. Dist. Ct. (D. Md. March 4, 2013).
     A documentary filmmaker, making a film concerning gang activity, was filming in a public place when a police officer compelled him to stop. He brought a civil rights lawsuit under a New Jersey state statute, claiming violations of his First and Fourth Amendment rights, and his rights under the state Constitution. Reversing the trial court's grant of qualified immunity to the defendant police officer, an intermediate New Jersey appellate court found that the defense of qualified immunity applies to the state statute just as it does to federal civil rights claims, but that it only applies to claims for money damages, not to claims seeking injunctive relief. Additionally, applying the qualified immunity defense on summary judgment was incorrect, since, if the plaintiff's claims were true, the officer may have violated his right of free speech. Ramos v. Flowers, #A-4910-10T3, 2012 N.J. Super. Lexis 157 (App Div.).
     An Illinois eavesdropping statute violated the First Amendment to the extent that it could be applied to prohibit the open audio taping of police officers in public performing their official duties. Any supposed governmental interest in protecting conversational privacy was not implicated when officers performing their duties engage in communications audible to those witnessing the events. In restricting more speech than necessary to protect legitimate privacy interests, the statute was likely to violate the free speech and free press guarantees of the First Amendment. An injunction against enforcement of the statute was therefore ordered. ACLU of Illinois v. Alvarez, #11-1286, 2012 U.S. App. Lexis 9303 (7th Cir.).
     A man was exercising clearly established First Amendment rights in standing ten feet away from officers and using a cell phone's video recorder with an audio microphone to record their activities, based on his concern that they were using excessive force on an arrestee in a public place. The officer was not entitled to qualified immunity on the man's false arrest lawsuit, despite his argument that the videotaping, by recording audio without consent of all parties to a conversation, violated a state wiretapping statute. The wiretapping statute aimed at clandestine recording, and the officers admitted that the arrestee was open about the fact that he was recording them. Glik v. Cunniffe, #10-1764, 2011 U.S. App. Lexis 17841 (1st Cir.).
     A police officer was not entitled to qualified immunity on Fourth Amendment claims arising out of his arrest of a man for filming his actions during a traffic stop. At the same time, as the right to videotape police officers during traffic stops was not clearly established, the officer was entitled to qualified immunity on the arrestee's First Amendment claim. The arrestee was a passenger in a vehicle stopped for speeding, and he used a video camera he had with him to record the officer, allegedly without the officer's knowledge or consent. The officer believed that this was a violation of a Pennsylvania wiretapping and electronic surveillance law. The officer called a prosecutor, and contended that he relied on the prosecutor's advice in placing the passenger under arrest. The officer believed that the passenger was violating the statute, as it requires police officers to inform people when they record traffic stops. While the officer's reliance on the prosecutor's advice in placing the passenger under arrest might give rise to a presumption that he was entitled to qualified immunity, the appeals court ordered further proceedings to determine whether that reliance was objectively reasonable. Kelly v. Carlisle #09-2644, 2010 U.S. App. Lexis 20430 (3rd Cir.).
     A motorist stopped by two Maryland state troopers recorded his interaction with the officers without informing them he was doing so. The recording included both video and audio. He later posted the recordings on the YouTube website. He was subsequently arrested and then indicted on charges that included, among other things, making the recordings of an oral private conversation. The trial judge ruled that the recorded audio exchange between the arrestee and the officers was not a private conversation as intended by the provisions of a state wiretap statute. "There is no expectation of privacy concerning a traffic stop on a public street. The law is clearly established that a traffic stop is not a private encounter." Charges concerning making and disseminating the recording were dismissed, while charges concerning traffic violations arising from the same incident will go forward. "Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation." State of Maryland v. Graber, #12-K-10-647 (Circuit Court, Harford County, Md. 2010).
     Police officers stated a claim against an arrestee for violating a Massachusetts state statute prohibiting unconsented to interception of wire and oral communications in alleging that he surreptitiously made a tape recording of his arrest, transportation, and booking. Gouin v. Gouin, No. CIV. A.2001-10890-RBC, 249 F. Supp. 2d 62 (D. Mass. 2003). [N/R]

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