Tuesday, March 1, 2016

Is There a Right to Record Police Activity?

A judge on the U.S. District Court for the Eastern District of Pennsylvania has issued a decision holding that there is no First Amendment right to capture video images of police in public if the recording is not connected to some other form of expression.
The decision, Fields v. The City of Philadelphia, involves two cases with similar facts. In one, a pedestrian saw about twenty police officers hosting a party in public and used his smart phone to take video recordings. The pedestrian thought the scene was "pretty cool," and thus took the video.  He was about fifteen feet away from the police. An officer saw the pedestrian and asked him to leave. When the pedestrian refused, the officer detained him, handcuffed him, took the phone and searched his person.

In the second case, a "legal observer," trained in observing interactions between police and civilians in civil disturbances attended a protest wearing a pink identifier. As the police arrested a protester, she attempted to capture video images. An officer restrained her, preventing her from capturing the video images.
Both filed lawsuits pursuant to 42 U.S.C. § 1983. This law gives a cause of action to those who have been deprived of a constitutional right under the color of law. Both claimed constitutional rights under the First Amendment right to freedom of expression and the Fourth Amendment freedom from unreasonable searches and seizures.

The decision was issued in the context of motions for summary judgment. The court addressed only whether there was a First Amendment right to capture video images of police. That is, the court did not address the Fourth Amendment claims.  The District Court reasoned that observation alone was not expressive conduct.
The holding of Fields was actually very limited. The District Court held that in the context of a lawsuit alleging a deprivation of constitutional rights, capturing video images of police officers without some other form of expression connected to it is not a protected right pursuant to the First Amendment. The court did not hold that capturing video images alone is illegal. Nor did the court hold that seizing a device to prevent a person from recording video images of police officers in public was a reasonable search and seizure pursuant to the Fourth Amendment. All that the court held was that a person who had been prevented from capturing video images of police officers in public, who were not otherwise engaged in expressive conduct, could not sue the government or government officials for violating First Amendment rights.
The problem, however, is that the District Court's holding can be misinterpreted too broadly and thus lead to abuse by the police. For example, a police officer, upon seeing a person with a device which could possibly be used to capture images of police could conclude that because there is no First Amendment right simply to capture those images, that the officer is justified in confronting the putative videographer and seizing the device or otherwise preventing the images from being captured.

Another problem is that making the right to capture video images of police in public dependent upon some other form of expression means that the right would only be available to those who are quick-thinking, assertive or otherwise in conflict with the police. That is, in order to enjoy the right, a person must think of some reason why they are capturing the video images and assert that reason to police.

Take, for example, a shy person who has witnessed some form of police conduct they deem worthy of recording. If the police confront that person in an effort to prevent the recording, then whether the person has a First Amendment right would depend on whether that person has the temerity to challenge authority and was quick thinking enough to give the police some reason the police would deem valid.

The most disturbing aspects of the court's holding are the failure of the court to recognize that art itself is worthy of protection as free expression and the minimization of the court of the need to gather information before engaging in more expressive conduct.

Art is free expression. Art can be for the sake of aesthetics or simply stimulating the senses. While the Plaintiff in Fields may not have been the most articulate of witnesses, art can simply exist because it is "cool."  Fixing something a person sees to a visual medium, such as digitally recorded images is, in and of itself, art and therefore protected expression.

In order to enjoy a First Amendment right to capture video images of police, the District Court would require that a person go into the situation with a preconceived intent to publish the images captured in order to engage in criticism. But this would mean that the observer must already be in conflict with police activity before even observing it. It would mean that the observer must be able to express their conflict. It would further mean that the observer must know that the conduct is worthy of criticism. To put simply, the District Court's holding could be construed as a finding that there is no right to investigate police conduct in public absent knowledge that the police are doing something worthy of criticism.

Let's say, for example, that the police have arrested a group of young men who are present in public. While the police were in the process of placing handcuffs on the men, and waiting for back-up to transport them to the police station, a person would not have a First Amendment right to stand at a distance unobtrusive to the police and record the event unless that person knew and was willing to state that the police action was in some way worthy of criticism.

That is not to say that recording the police in this fashion would be illegal. But this type of hair-splitting that the District Court has engaged in could embolden a police officer who did not want to have his or her actions in public captured as video images to take action against the observer even though the observer is doing nothing wrong.
That is, there is a very fine distinction between saying a person does not have a right to engage in certain conduct, and saying that the conduct is illegal. But to the average person, it is very difficult conceptually to make that distinction. Engaging in the conduct, such as capturing video images, may not be illegal. But that does not mean you can sue the government when you are prevented from engaging in that conduct. The average person would believe that if conduct is not illegal, then you have a right to do it.

There is also a very fine distinction between understanding that generally you do not have a right to record the police, but if you go into a situation knowing that you are going to be critical of the police then you do have a right to record them.

Recording police serves an important public service. A person who knows he or she is subject to being recorded is less likely to engage in illegal conduct. Discouraging the public from recording the police, even when not interfering with the police activity, robs the public of this vital check on abuse of authority.

Fields should not be construed as eliminating this check. In the first place, it is only the decision of one judge in one district responsible for Eastern Pennsylvania. It is by no means binding authority.  But the decision can be misconstrued in a dangerous way by the police. 

By: William J. Kovatch, Jr. 
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