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Appeals Court: You Have the Right To Film the Police (arstechnica.com)
An anonymous reader quotes a report from Ars Technica: A divided federal appeals court is ruling for the First Amendment, saying the public has a right to film the police. But the 5th U.S. Circuit Court of Appeals, in upholding the bulk of a lower court's decision against an activist who was conducting what he called a "First Amendment audit" outside a Texas police station, noted that this right is not absolute and is not applicable everywhere. The facts of the dispute are simple. Phillip Turner was 25 in September 2015 when he decided to go outside the Fort Worth police department to test officers' knowledge of the right to film the police. While filming, he was arrested for failing to identify himself to the police. Officers handcuffed and briefly held Turner before releasing him without charges. Turner sued, alleging violations of his Fourth Amendment right against unlawful arrest and detention and his First Amendment right of speech. The 2-1 decision Thursday by Judge Jacques Wiener is among a slew of rulings on the topic, and it provides fresh legal backing for the so-called YouTube society where people are constantly using their mobile phones to film themselves and the police. A dissenting appellate judge on the case -- Edith Brown Clement -- wrote Turner was not unlawfully arrested and that the majority opinion from the Texas-based appeals court jumped the gun to declare a First Amendment right here because one "is not clearly established."
You don't have the right to film the police.
Trump 2020.
While I totally support the right to record, whatever one can legally observe, I struggle to understand the commonly-used argument, that such making recordings — made silently and without expression — is somehow equivalent to speech.
Could someone, please, explain?
In Soviet Washington the swamp drains you.
So crazy Texas judge says not legal precedent can be set because no legal precedent has be set, hmm, OK, stays well are from crazy as fuck Texas legal system.
Chaos - everything, everywhere, everywhen
Would you also say that the police don't have a right to film citizens? What about all the corporate-operated CCTV cameras everywhere, should those go too? If it all goes away, maybe that's a good exchange. If you're saying everyone EXCEPT ordinary citizens can use video cameras, I have to ask why you get to hold that gavel.
Ban the LEAKS!
Fake News! It's TRUE! But it's LEAKED! So it's FAKE!
Under the US Constitution, you don't have to "clearly establish rights"; rather, the government has to clearly establish that it has been granted certain powers by the people.
Wonder if this affects mmel and twx's secret sex filming of underage boys
Some idiot judge will take the words literally and say you have a right to film but not record.
Except he was filming BEFORE X happened.
With such a broad claim, you realize that it applies to people videoing other people for evidence of possible future crimes, and government surveillance as evidence collecting against possible future crimes.
Be careful of what you wish for.
It's not a good thing, that a you tuber can spy on anyone, video them, publish their every actions, and then claim it's free speech.
Judge Clement's dissenting opinion did not say that citizens aren't allowed to film the police.
This hearing was about whether he should just sue the city, or of he could also sue the individual officers personally, given the particular details of the events, and the particular circumstances at the time. The law on this question depends on those details.
Clement believes that the city is liable in this particular instance, not the individual officers personally.
There's no general principle at being decided in this case. Though it was mentioned that citizens generally have a right to film police in the conduct of their duties, that was settled law - as the the opinion mentioned, there is no circuit court split or anything on that question.
We are fortunate that there are few bad actors, but we are unfortunate that their brothers and sister officers are usually very reluctant to report those that are.
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
The hearing was about whether he should sue only the city of Fort Worth, or also sue the individual officers personally.
The law about that is the officer os personally liable for monetary damages only if *all* reasonable cops would know that what they did was unconstitutional, because there was clearly established law covering those specific actions in that particular circumstance. In all other cases, the offended party can sue the city or state that the cop works for.
A couple of examples:
A cop is interviewing a suspect. When the suspect just sits there, refusing to talk, the cop hits the suspect with a stick in an attempt to force a false confession. The officer would be personally liable because it's *clearly established* that such behavior is violates the suspect's Constitutional rights. No reasonable cop could think it's okay to hit the guy.
On the other hand:
Two weeks after a police station in Dallas is shot at, a guy is hiding in bushes across the street from a police station near Dallas. Cops approach to see what's going on. The guy is filming the police station (casing it?). Cops ask for ID. The guy asks to speak to a supervisor. The cops call their supervisor to come over, handcuffing the guy for five minutes until the supervisor arrives. Did they violate his Constitutional rights? Maybe. Does every reasonable officer *know* that what they did violates his civil rights? No, an officer might reasonably *think* it's okay to cuff the guy for five minutes. There's not *clearly established law* that in the situation described, they can't cuff him while awating the supervisor he requested. Therefore he can sue the city the cops work for, but can't sue the individual cops personally.
The second scenario above, in which a reasonable cop might mistakenly think cuffing him for a minute is okay, is patterned after the actual events in this case. In reality, he wasn't hiding in the bushes. I added that to make it a better example, an example of a scenario where a reasonable cop might be unsure of what they can and can't legally do.
What if I want to record instead, I don't have any devices that use film.
Is this just a poorly written article or a loophole so that you still cant record police with modern tools?
It is NOT "Texas-based."
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Do live broadcasts. They cant delete that from your phone.
I've followed Phillip Turner's 1st Amendment audits for a long time and it was very good to see him prevail in court. Very, VERY good.
This was a huge win for everyone in the US that gives a damn about the 1st Amendment.
*(His Youtube channel is "The Battousai", so people call him "Batt" or the Batman.)
You have the absolute right to film the police in public, period. Watch and learn, kids: https://www.youtube.com/user/T...
Just cruising through this digital world at 33 1/3 rpm...
That's because they were shot.
Do you seriously want this country to kill the weak and disabled, and put the rest to labor? What is wrong with you?
Apparently I didn't make my point clear enough:
This ruling wasn't about whether or not the guy had the right to film the cops. (Yeah the summary is misleading. Without looking back at it now, I'm going to guess it was by Beau "clickbait" HD).
> the government should have to clearly establish that it has been granted the powers that it is exercising. The reasoning of the court is abhorrent
You're contradicting yourself there because the dissent you're objecting to says that the government owes the guy money, because the government infringed his rights.
Furthermore, "the reasoning of the court", which you call "abhorrent" says that not only should he sue the government, but also the individual officers as well.
The really funny part is this - the dissent, which is what you actually don't like, I think, is based on the argument that sometimes court rulings can be hard to completely understand - a point you're proving well by completely misunderstanding the topic of this hearing.
> the government should have to clearly establish that it has the powers that it is exercising.
That's what she said. Where "she" is the judge you're pissed off about. Basically this is what has happened:
Judge: 2 + 1 = 3
ooloorie: No, damn it! 2 + 1 is 3 you fucking idiot!
The key word in what you said is "the government". According to the dissent (and the majority also agrees on this point), the government violated the guy's rights. Maybe they didn't train the officers well enough or whatever, but anyway the city of Fort Worth is going to have to pay the guy. All the judges agree with you. They all agree the government is in the wrong (or may be, that wasn't in question at this hearing).
Where one judge disagrees with the others is on the topic of this ruling - what should be done about the individual cops involved. In many instances, two different courts make opposite rulings on some question*. The fifth district court says "these cops can do X in these circumstances", the sixth district says "cops can't do X in these similar circumstances". Then some cop does X in some other, similar circumstances. Judges don't even agree if what the cop did is okay or not. Should the *cop*, personally, be sued, or is the government who employs and trains the cop liable? That was the question in this case. The dissent said basically "cops aren't required to be smarter than judges. If it's unclear, sue the police department, not the individual cop."
"Clearly established" doesn't have anything to do with the *government*. "Clearly established" is the standard eaxh individual cop is *personally* held to - they don't have to understand the law better than judges do.
* The one other person here who actually read the ruling will note that in order to more clearly explain the -general idea- to ooloorie, I've intentionally given up precision. I realize that, but I'm trying to get ooloorie to understand what the purpose of the hearing was and why "clearly established" matters.
Rights can be violated and rights can be infringed.
Suppose the last year the government put you in prison for saying "Obama sucks". This year, you're still in prison. Are your rights being violated this year?
I would say yes, as long as you're still in prison, your rights are still being violated. Agreed?
I would also say it's impossible to violate a non-existent right someone doesn't have. Agreed?
If your rights are being violated today, you must have rights today, rights that are being violated. If you have rights that are being violated, your rights weren't taken away; they were violated, not removed.
This may sound pedantic, but it's important. There are reasons the Constitution and the Declaration say that the government may not *infringe* your human rights, which you were born with. They don't say that the government should grant you rights, or shouldn't take them away. They say you're born with certain human rights, you die with those rights, and all the government can do is either infringe your rights or protect your rights.
This is important when the government purports to curtail or remove your human rights. If it was possible for the government to create or remove rights, we might disagree about which rights should be taken from whom. We might dislike having certain rights removed, get annoyed for a bit about having our rights taken away, then get over it - the government can take our rights if they choose too, so we'd just have to get over it. The founders took a different view - our human rights are a part of being human, they are permanent, and no government can ever remove them, only protect or violate them.
Possibly more importantly, any definition of "rights" which allows government to grant them turns rights into "privileges". It removes the essential nature of rights, as opposed to "privileges" or "license". Government-granted or removed rights are no right at all, merely a statement of "we'll let you do that, because we don't mind you doing that - for now. We'll let you know when it bugs us and you have to stop". That's not a right. A right is something I can do *even if* it annoys politicians.
I've had all the claims of "fake news" that I can handle since President trump started uttering those two word less than one year ago. If that's your only retort without offering any kind of proof, then you are just as ignorant as the POTUS tweeting that same phrase and he seems to have done that every day for the past week. Fucking morons. And yes, there are at least two "fake news" comments in this story alone.
What idiot judge(s) would vote against at least the basic concept of citizens having the right to film police interactions, especially given the plethora of evidence that too many officers "stretch" (AKA: Lie) the truth to make themselves look better. There are definitely cases where the individual in question are committing a crime (even minor ones & even things that shouldn't be a crime) while videoing but in a society even approaching a free and just society standing on a public sidewalk ACROSS from a police station with a running video camera isn't one of them.
Actually the rule is similar for civilian employees. If, in the course of your job duties, you do something wrong and someone sues, it's generally your employer who is liable. The legal term is "respondeat superior", latin for "let the boss respond".
This is because it's the company who benefits from the work, and therefore should take the risks of work being done imperfectly. The present case applies this same principle to policing - the police department is liable for the actions of their employees.
If, while working at McDonald's, you intentionally stab someone, you'd personally be responsible because you clearly knew that was wrong. The law on that is "clearly established". Same for the cops.
> Turner was not "hiding in the bushes across the street from a police station near Dallas", as you implied.
Let me quote myself for you, "he wasn't hiding in the bushes." Did you misread "wasn't" and think I said "was"?
Did you miss "here are two hypothetical examples"?
> Do you believe that the cops were in the right, arresting a man standing in plain sight
It's interesting that after that long angry rant, at the end you ask me what I think about it. Perhaps you realized that in no point in the post you angrily replied to did I state my opinion on the matter. I explained the law and the judges' differing opinions. I just read the ruling, I didn't write it.
Since you seem quite upset about the reasoning I explained, let's be clear about what that was first (the dissenting judge's reasoning, not mine):
The dissenting judge thinks that given the recent incidents of cops being shot at by snipers in the area, the cops might have *thought* it was okay to go talk to the guy. The dissenting judge (not me, I wasn't involved in this particular case) also thinks that after the guy asked to speak to a supervisor, the cops might have *thought* it was okay to handcuff him for five minutes while waiting for the supervisor to come over.
We don't know exactly how long he was handcuffed - long enough for the sargeant to come from across the street.
Here's what I think. I think they shouldn't have handcuffed the guy (and nobody says they should have). I think the cop probably knew better, and his "this is what happens" comment is evidence that he was acting out of anger. So I disagree with the judge who said the cop might have thought it was okay. On the other hand, I don't think it's ridiculous for the judge to *think* that a cop might *think* it was okay. That last sentence is double meta, so it may be unclear. I wonder if I can diagram it:
I think this:
- the judge thinks
- that the cop *might have*
- mistakenly *thought* it was okay
Is wrong, but not ridiculous. There are three levels of mushiness there - the judge *thinks* (wrongly) that it is *possible*, not proven but possible, that a cop might *think* that was okay. No, it's not possible, but the judge isn't stupid for thinking that it's possible for a cop to be stupid.
Let me summarize what I just said, to perhaps make it more clear:
The judges had to decide if it was *possible* that the cops might have been stupid.
I don't think that's possible. I'm sure that the cops were mad, not stupid.
One judge thinks it's possible that the cops were stupid / poorly trained.
I'm not mad at the judge - it's not completely ridiculous to think that a cop might be stupid.
Griswold v. Connecticut - the government has no business peering into your bedroom
note well - constitutional rights apply to government actions, your right to privacy, or free press, or whatever, is that the government can't interfere. A private party might invade your privacy, but that's not a constitutional thing..
But subsequent to Griswold, the idea of privacy has extended virtually everywhere, including actual laws protecting citizens against disclosure of private information collected by the government. "Privacy Act"
But do you believe that, under these circumstances, it was reasonable to handcuff him,
Yes. It's called "detained pending an investigation". And since it's a common practice in law enforcement, Turner may be able win a suit against the department, but the individual officers were acting in accordance with standard policies.
Have gnu, will travel.
> citizens don't have rights that can be violated, government has (limited) powers that can be exercised.
That would give the government much, much more power the Constitution currently grants. A few examples:
The government was granted the power to tax.
- But may not violate citizens right to equal treatment, they can't tax hispanic people four times as high as asian people.
The government was granted the power to regulate interstate commerce.
- But may not violate your first amendment rights by prohibiting the sale of conservative magazines across state lines.
The government was granted the power to build roads.
- But may not violate your property rights by building a road through your house, unless they buy it from you at fair value.
The government was granted the power to have courts.
- But may not force you to testify against yourself.
I don't think you really want to do away with the fifth amendment (and the rest of the bill of rights), to say that just because the government has the power to operate courts, you know longer have the right against self-incrimination. I don't think you really believe that the power to regulate interstate commerce isn't limited by the right of free speech.
I think that rather than just saying "oops, I misunderstood", you're grasping to find some other explanation for your words, but you haven't thought through what that would mean.
--
Moving to a completely different topic now.
Suppose you went to a drive-through for breakfast, and you were the first customer when they first opened. They cook put your egg sandwich on the grill and cook it for the designated amount of time. Later, you get sick because the cook didn't realize the grill hadn't yet heated fully, it was only 290 degrees instead of 350. Would you agree the restaurant is liable for making you sick? (This isn't a trick question - a simple yes or no wpuld be fine.)
Suppose on another day, the cook sees it's you ordering, and he doesn't like you. He blows his nose on your sandwich and you get sick. Should the cook also be liable for his actions, as well as the restaurant?
Note that in the first instance, the cook made a mistake, an understandable mistake. In the second instance, it wasn't a mistake - everybody knows that blowing your nose somebody's sandwich is not okay.
Is there a perhaps difference, in terms of the blame put on the cook personally, if he does something that he and everyone else clearly know is wrong?
It's the playback and that certainly goes under free speech that is really what is in question. Its like you over hear the police saying something and they repeat it. E.g. the evidence gathering stage. Also how can this in any way NOT be free speech when a corporation donating millions to pay off a pol is considered speech (and free at that)