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.
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.