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Cthulhu
11-07-2013, 12:07 PM
It is blatantly obvious police know very little of the law. Here I have opted to post some case law supporting the right to record police.

Source (http://www.righttorecord.org/?page_id=108).


Glik v. Cunniffe (http://www.ca1.uscourts.gov/pdf.opinions/10-1764P-01A.pdf), No. 10-1764 (1st Cir. Aug 26, 2001). An important piece of ongoing litigation challenging current Massachusettslaw. (Update here (http://www.righttorecord.org/?p=448).)

Smith v. City of Cumming (http://scholar.google.com/scholar_case?q=212+F.3d+1332&hl=en&as_sdt=2,7&case=16398383335009435380&scilh=0), 212 F.3d 1332 (11th Cir. 2000), cert. denied 531 U.S. 978 (2000). In a two-page opinion, the court held that the civilian, non-journalist plaintiff “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct.” The court denied relief because the plaintiffs “ha[d] not shown that the Defendants’ actions violated that right.” The court only summarily pronounced that the right exists; aside from a lengthy string-cite of cases around the right to gather information, the court offered almost no reasoning.

Fordyce v. City of Seattle (http://scholar.google.com/scholar_case?q=55+F.3d+436&hl=en&as_sdt=2,7&case=1203486802498511272&scilh=0), 55 F.3d 436 (9th Cir. 1995). The court held simply that there is “aFirst Amendment right to film matters of public interest,” without explaining in particular how the right to record articulates with the freedom of speech.

Iacobucci v. Boulter (http://scholar.google.com/scholar_case?q=193+F.3d+14&hl=en&as_sdt=2,7&case=4821936205672491096&scilh=0), 193 F.3d 14 (1st Cir 1999). The court held that the plaintiff recorded town officials in “exercise of his First Amendment rights,” and that no reasonable officer would have believed that the plaintiff violated the disorderly conduct statute in doing so. In Iaccobucci, police infringed on a right to record, but the particular town officials recorded in this case were not police.

Kelly v. Borough of Carlisle (http://scholar.google.com/scholar_case?q=622+F.3d+248&hl=en&as_sdt=2,7&case=16745214870858628586&scilh=0), 622 F.3d 248 (3d Cir. 2010). After holding that the right to record police was not clearly established for purposes of qualified immunity, the court stated in dicta that “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions.” (Emphasis original.)

Gilles v. Davis (http://scholar.google.com/scholar_case?q=427+F.3d+197&hl=en&as_sdt=2,7&case=100647838501380317&scilh=0), 427 F.3d 197 (3d Cir. 2005). The court reasoned that “videotaping or photographing the police in the performance of their duties on public property may be a protected activity” and that videography that has a communicative or expressive purpose enjoys some First Amendment protection.” (Opinion at 212 n.14, emphasis supplied, but see also Matheny v. County of Allegheny Pa., CIVA 09-1070, 2010 WL 1007859 at *4 (W.D. Pa. Mar. 16, 2010) (where the court added stronger emphasis to the identical words)).

2. Other Opinions Supporting the Right

Jean v. Massachusetts State Police (http://scholar.google.com/scholar_case?q=492+F.3d+24&hl=en&as_sdt=2,7&case=273162148473594979&scilh=0), 492 F.3d 24 (1st Cir. 2007). The First Amendment protects publishing video of police in their every day duties even when that video is acquired in violation of the Massachusetts wiretapping law.

Tunick v. Safir (http://scholar.google.com/scholar_case?q=228+F.3d+135&hl=en&as_sdt=2,7&case=4340037491003077969&scilh=0), 228 F.3d 135, 137 (2d Cir. 2000) (photography is protected by the First Amendment).

Robinson v. Fetterman (http://scholar.google.com/scholar_case?q=378+F.+Supp.+2d+534&hl=en&as_sdt=2,7&case=14311957668125449626&scilh=0), 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005) (holding a First Amendment right to record record “the activities of Pennsylvania state troopers as they went about their duties on a public highway and its adjoining berm”). Larsen v. Fort Wayne Police Dept., 1:09-CV-55, 2010 WL 2400374 (N.D. Ind. June 11, 2010) (holding that “the First Amendment is not implicated because a person uses a camera, but rather, when that camera is used as a means of engaging in protected expressive conduct, or, less commonly, to gather information about what public officials do on public property”). [I]

Pomykacz v. Borough of W. Wildwood (http://scholar.google.com/scholar_case?q=438+F.+Supp.+2d+504&hl=en&as_sdt=2,7&case=11785378095883010805&scilh=0), 438 F. Supp. 2d 504 (D.N.J. 2006) (affirming First Amendment protections for a private citizen who took photographs of a police officer and a mayor while investigating claims of nepotism, conflict of interest, and preferential treatment).

Tichinin v. City of Morgan Hill (http://scholar.google.com/scholar_case?q=99+Cal.+Rptr.+3d+661&hl=en&as_sdt=2,7&case=14270096215935397540&scilh=0), 177 Cal. App. 4th 1049, 1077, 99 Cal. Rptr. 3d 661, 684 (Cal. Ct. App. 2009), review denied (Jan. 13, 2010) (holding that free speech “include[es] lawful efforts to gather evidence and information about public officials concerning allegedly improper or unlawful conduct”).

United States v. Prokupek, No. 10-1406, 2011 WL 198102 at *3 (8th Cir. Jan. 24, 2011); see also Orin Kerr, Dashboard Camera Recording Leads Eighth Circuit to Hold that Officer Was “Clearly” Not Credible in Suppression Hearing Testimony (http://volokh.com/2011/01/24/dashboard-camera-leads-eighth-circuit-to-hold-that-officer-was-clearly-not-credible-in-suppression-hearing-testimony/), The Volokh Conspiracy (Jan. 24, 2011, 253 PM). Although not an instance of civilian recording of police, this case illustrates the importance of video recordings.

ACLU v. Alvarez (http://ia700101.us.archive.org/5/items/gov.uscourts.ilnd.246599/gov.uscourts.ilnd.246599.42.0.pdf), No. 1:10-cv-05235 ECF 42 at 7-8 (N.D. Ill. January 10, 2011); see also Eugene Volokh, Court Rejects Claim of a First Amendment Right to Audio-Record Police Officers (http://volokh.com/2011/01/14/court-rejects-claim-of-a-first-amendment-right-to-audio-record-police-officers/), The Volokh Conspiracy (Jan. 14, 2011, 5:56 PM). (My discussion here.) In re Grand Jury Subpoena, Judith Miller (http://scholar.google.com/scholar_case?case=6530900504914793267&q=438+F.3d+1141&hl=en&as_sdt=2,7), 438 F.3d 1141, 1156-57 (D.C. Cir. 2006). The court argued it could not draw a distinction between 1) “reporters employed by Time Magazine, the New York Times, and other media giants,” 2) “the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators” and 3) “the stereotypical ‘blogger’ sitting in his pajamas at his personal computer posting on the World Wide Web.” Id.

So basically, when a cop says you can't record in a public place, regarding a public servant, feel free to illuminate him. Although be warned, it will likely be in vain.

More later.

Alyosha
11-07-2013, 12:19 PM
There is more recent caselaw but I don't have my password on this laptop. Remind me next Tuesday.

Cthulhu
11-07-2013, 04:09 PM
@Alyosha (http://thepoliticalforums.com/member.php?u=863),

I will certainly ask for it. I am going to put it on the other site I have. That way other people can refer to it and more people can know about it.

My Rant on the subject -
http://www.youtube.com/watch?v=X7m3bzOnJWc&feature=youtu.be

This could be the beginning of a morbid series of videos.

Peter1469
11-07-2013, 06:31 PM
That is awesome. Call your friendly defense attorney before you go back. @Alyosha (http://thepoliticalforums.com/member.php?u=863)

When I was stationed at Fort Drum, I was a Special Assistant US Attorney and probably did close to 800 misdemeanors and infractions. Don't take my advice the wrong way, but the prosecutors doing traffic tickets are newbies. They just want to clear their case load and move on to a better job. I guess my situation was different than most- we only had the magistrate come to post once a month, so we would have up to a hundred cases to handle in a day. The people who came in an were nice I would ask the judge to dismiss the ticket. The people who where difficult I used to hone my litigation skills. I had this one guy who had a reckless driving misdemeanor for hitting a woman with his car as she tried to merge onto the main road on post.

We were slammed with cases that day, so I offered to give him a deal to downgrade it to an infraction. He told me to fuck off, that it wasn't his fault and he wanted a jury trial. Oops. When it was his turn in front of the judge, I said that the defendant requested a jury trial. The judge asked the guy if that was true, and he said yes- the accident was not my fault. So the judge (magistrate) postponed the trial until the following month so a jury could be called up.

Next month, he got his trial. The magistrate was sort of unorthodox and let the defendant present his case first. It was actually funny. Basically the guy's defense was that if the woman knew how to drive there wouldn't have been an accident. I didn't question that, but started my cross examination. The magistrate stopped me and asked if it was necessary. Yes your honor, absolutely. I just have some unanswered questions that I would like to get cleared up. Proceed Captain he said.

Now this was back in 2000 and I don't remember all of the elements to the offense he was charged with. Lets just say 4. I asked 4 yes or now questions and he said yes to all of them. He said nothing else. He basically admitted to each of the elements of the charged crime.

Talk to your defense attorney....