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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."
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.
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.
You have the right to film from public land. .
Police will try a few mind tricks at the more interesting sites. Courts, mil base, vital infrastructure, jails, prisons will usually create a chat down event.
A demand, request for photo ID and the reason for walking on public and, having a camera on public land..
Anything from a friendly request to "help" with the paperwork, a request to give a name, to a direct almost legal sounding demand for photo id.
Other chat down methods are Who are you working for, Will this be on the net, under what account... Do you have police press ID?
Mil, contractors and private security will often try the same with "chat downs" about been near their site. Still on public land but they have some "power" to ask who a person is well beyond their fence line...
That the jail, base, court "extends" out onto public land past any fence, sign and that the ability to film from public land is not allowed is often attempted.
The other trick is to let the person have their "rights" and follow them back to their car and get the plate and id..
Other more direct methods is the undercover talking point. Not to show faces.
Or a federal official with no ID or uniform might grab a camera to induce local police to be called. To report the crime a name will have to be given.
The crime will be reported but later FOIA will never ID the person who reached out for the camera.
A lot of chat down ways around a lack of clear Stop and identify statutes.
Domestic spying is now "Benign Information Gathering"
Where is my right to privacy? It seems that you're saying I have none. Yet privacy is an established constitutional guarantee.
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.
In public it's generally held that you don't have the same kind of privacy you can expect in your own home. If you want privacy, you can stay there and keep people out or limit what they're allowed to do on your property. If you really want privacy, you could go buy a few acres off out in the hills and scarcely be bothered at all should you keep to yourself.
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.
A persons rights cannot be taken. :)
But if the chat down results in photo ID voluntarily been shown or the dslr/camera been handed over?
If the chat down is loud, direct, friendly, helpful the person on public land might just show ID, stop filming or even hand over their camera.
Been surrounded by mil in uniform, private security and/or local police on public land all suggesting it might be a good time to show ID and to turn off the camera?
That police would like to or want to or need to know who a person with a camera is for their paperwork as they got called out..
The ability to suggest that its now very normal, helpful, good to stop filming and hand over photo ID? Or just give up the media/storage to be a helpful as an investigation could be started..
That line between under arrest, conducting an investigation, talking, been free to go, is having a dslr in public on public land reasonable articulable suspicion of a crime?
Another attempt is to suggest press ID, local police press ID gives permission to film in that area or city... that all land in the state is state property and not really public land
That very special permission is always needed to film "on" a mil base. "In" a court building due to informants or people in jail... or due to under cover officers..
Anything to keep the conversation going and the person speaking about their rights...
The hope is the person will then show photo ID just to have the ability to walk away after such creative talking points.
Domestic spying is now "Benign Information Gathering"
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...
"A persons (sic) rights cannot be taken."
I doubt any of those in prison would agree.
AC look for youtube video clips with terms like: Silent, first amendment audit
Domestic spying is now "Benign Information Gathering"
It has been affirmed in your home and in your papers, but has also been stated to not be relevant in public, because it is IN PUBLIC
(ianal)
Here, it's called substantive due process. You're welcome.
https://en.wikipedia.org/wiki/Substantive_due_process
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.
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"
why would you put yourself in a position as to where filming the police would benefit you.
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.
Just poor writing on the part of Arse Technica.
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?
Millions of people thrown into prison for drug use were acting perfectly civilly at the time of their arrest. So too were various political prisoners, namely minority activists.
Recording you car license plate seem like fair game to me -- it's in plain sight on public land. The other things, best not to argue with someone holding a loaded weapon, document it as well as you can and take them to court. Why do you have a problem with them knowing who is recording them?
I've abandoned my search for truth; now I'm just looking for some useful delusions.
Why do you think the only reason somebody would film the police is because it benefits them?
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
1st amendment protects citizens, not the government.
Filming is almost universally allowed - but there's a lot of restrictions on dissemination of the material afterwards. In particular right to privacy restricting right to publish that material without express permission.
Where does the constitution specifically call out a right to breathe or to eat? The constitution is not a list of human rights. It's a list of things the government is allowed to do. If it isn't in the constitution it is the government and not the citizen that is prevented from acting.
In this case a police officer is the government. If the constitution does not specifically allow the police to confiscate cameras and harass citizens using them then they are not allowed to do so. But that is just theory. In practice they will often just beat you bloody, toss you in jail, and throw some false charges at you (cover charges). Or if you get particularly unlucky and the cop is having a bad day he might just shoot you or choke you to death or both.
American police are usually themselves dangerous criminals and fucking with them in any way is indistinguishable from doing the same to an armed and pissed off gang member except that the gang member knows he could end up going to jail if he kills you. The cop knows he will at worst get a short paid vacation. The police are basically a gang themselves but one that is immune to all prosecution.
Quite an experience to live in fear, isn't it? That's what it is to be a slave.
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)
If you want to impeach Trump, the first thing you need to do is point to a law that he has broken. It must be a serious offence in order to qualify.
APK likes to ask for responses to the same things over and over. Maybe he just likes the responses?