Court rules that police cannot stop audio-video recording of
officers on duty
The ACLU announced plans to launch an audio-video taping
project, targeting Cook County (greater Chicago area) Illinois police officers
performing their duties. Illinois is a two-party consent state, meaning that
all parties to a conversation must consent to audio recording. Thus, unless the
officers consented, audio-video recording would constitute an illegal wiretap.
The ACLU launched a pre-emptive lawsuit against the Cook County prosecuting
attorney, asking the court to block enforcement of the wiretap law in such
circumstances.
A federal district judge ruled against the ACLU on legal standing
grounds prior to trial. The Court of Appeals for the Seventh Circuit reversed,
ordering that the ACLU was entitled to a preliminary injunction and a full
trial. The appellate court held that the statute unconstitutionally restricts
free speech.
By suggesting that there is a First Amendment right to video
record police officers in the course of their duties, the Seventh Circuit joins
a small number of courts around the nation that have ruled in favor of citizens
suing police after officers interrupted video (or audio-video)
recording.1Infamous Incident
One of the most public video-recording cases involved
Anthony Graber, a motorcyclist who used a helmet camera to film a plainclothes
trooper after being stopped for speeding. Graber had been showing off, weaving
in and out of traffic on his motorcycle at a high rate of speed, and
videotaping his antics. After being stopped and cited, Graber posted the video,
which shows the officer approaching him with his gun drawn, to YouTube.
The video quickly went viral.
A few weeks later, a state’s attorney in Maryland charged
Graber, a staff sergeant in the Maryland Air National Guard and a computer
systems engineer, with violating the state’s wiretapping laws. Noted Judge
Emory Plitt, a former prosecutor and popular lecturer on law enforcement legal
issues, dismissed the charges.
Judge Plitt observed: “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.”
Additional Examples
A few other trial courts have ruled that there is a general
free speech right to videotape police officers. In Robinson v. Fetterman, 378
F.Supp.2d 534, 541 (E.D. Pa. 2005), the court ruled that there is a free speech
right to film police officers in the performance of their public duties.
Robinson claimed to be concerned about the way police were conducting truck
inspections on a local road, so he decided to document their behavior by
filming them from an adjacent property. Robinson videotaped from a position
approximately 20 to 30 feet from the highway and never physically interfered
with police activities. The police told him to knock it off and, when he refused,
they arrested him for harassment.
Robinson was convicted of harassment, but the conviction was
overturned on appeal, and Robinson filed a § 1983 action against the troopers.
The judge found that no officer could reasonably believe that Robinson was violating
the Pennsylvania harassment law. The court ruled against the troopers and took
the rare step of awarding punitive damages against the individual officers in
addition to general compensatory damages.
Prior to the ACLU’s suit in Chicago, a few federal appellate
courts explored the parameters of the First Amendment free speech rights
colliding with the privacy rights of victims, witnesses, and officers. In Smith
v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), the court recognized “a
First Amendment right, subject to reasonable time, manner and place
restrictions, to photograph police conduct.” The problem with the Smith case is
that the court provided very few facts and little analysis, so we don’t know
the precise contours of the right that the court may have recognized.
In Gilles v. Davis, 427 F.3d 197, 203 (3rd Cir. 2005), the
court suggested in dicta (meaning that the statement is not necessarily binding
law) that “videotaping or photographing the police in the performance of their
duties on public property may be a protected activity.” The appellate court
also noted that “generally, photography or videography that has a communicative
or expressive purpose enjoys some First Amendment protection.”
One decision carefully weighing the state of the law and
noting the competing public and private interests comes from the Third Circuit
Court of Appeals in Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010).
Kelly was a passenger in a truck stopped for a bumper height violation. When
the officer saw Kelly videotaping the contact, he arrested Kelly for a wiretap
law violation.
Those charges were later dropped.
Kelly sued.
The court granted qualified immunity to the officer with
this instructive explanation:
We conclude there was insufficient case law establishing a
right to videotape police officers during a traffic stop to put a reasonably
competent officer on ‘fair notice’ that seizing a camera or arresting an
individual for videotaping police during the stop would violate the First
Amendment. Although Smith and Robinson announce a broad right to videotape
police, other cases suggest a narrower right. [Other court decisions] imply
that videotaping without an expressive purpose may not be protected, and in the
Whiteland Woods case we denied a right to videotape a public meeting. Thus, the
cases addressing the right of access to information and the right of free
expression do not provide a clear rule regarding First Amendment rights to
obtain information by videotaping under the circumstances presented here.
Our decision on the First Amendment question is further
supported by the fact that none of the precedents upon which Kelly relies
involved traffic stops, which the Supreme Court has recognized as inherently dangerous
situations. . . . For these reasons, we hold that the right to videotape police
officers during traffic stops was not clearly established and the officer was
entitled to qualified immunity on Kelly’s First Amendment claim.
First Amendment Protection
A short time before the Seventh Circuit considered the ACLU
lawsuit, the First Circuit denied qualified immunity to Boston Police officers
after they arrested a man for recording an arrest with his cell phone. In Glik
v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), the court held that video recording
an arrest in a public place constituted an exercise of clearly established
First Amendment right. Prosecutors ultimately dismissed the wiretapping charges
filed against the man. The court allowed the lawsuit alleging a Fourth
Amendment violation of wrongful arrest and a First Amendment violation to
proceed in the trial court.
In the Illinois ACLU case, the Seventh Circuit court held:
“Audio recording is entitled to First Amendment protection.”
Although the Illinois law does not prohibit non-consensual
video recording, the court opined that audio recording is entitled to
constitutional protection. According to the 2-1 split decision, a ban on
audio-video recording of government officials suppresses speech just as effectively
as restricting the dissemination of the recording itself. The court also held
that the officers’ privacy rights are outweighed by the public interest.
The prosecuting attorney argued that allowing the ACLU to
audio-video record victim or witness interaction with the police would hinder
cooperation in investigations. The court disagreed, noting that such encounters
are generally in private places and not where bystanders can hear. That puts
the burden on police officers to take extra care to protect the privacy and
confidentiality of witnesses and victims. The court did not order that the ACLU
be restricted from attempting to capture such interviews.
The lone dissenting judge asked, “Suppose a police detective
meets an informant in a park and they sit down on a park bench to talk. A crime
reporter sidles up, sits down next to them, takes out his iPhone, and turns on
the recorder. The detective and the informant move to the next park bench to
continue their conversation in private. The reporter follows them. Is this what
the Constitution privileges?”
For now, the answer seems to be that the Constitution allows
just that, sometimes putting officers in a very difficult position. Watch for
further appeals, perhaps to the entire court of appeals or to the Supreme
Court. This issue is obviously not unique to Illinois. As other courts have
addressed audio-video recording seemingly barred by state wiretap statutes,
thus far, the box score favors audio-video recording as a First
Amendment-protected activity. The U.S. Department of Justice has supported the
ACLU position in a lawsuit filed in Baltimore2.
In this age, it seems to be common sense for an officer to
assume that every move is being recorded. These cases sound a cautionary note
for any officer who is being openly recorded. No doubt, some recording
activities pose a clear threat to officer and/or public safety because the
videographer is actually interfering or the recording threatens sensitive
police tactics or identities.
One such case involved a film crew broadcasting tactical
officers as they crept toward the location of a barricaded suspect (who only
needed to turn on the television to know where to shoot). Officers should
interrupt the recording in those cases and seek prosecution advice regarding potential
criminal charges. In most circumstances, however, the best advice may be to
“smile” because you’re on Candid Camera, like it or not.
