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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.
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"
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.
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"
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.
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"