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."

Comments

How is FILMING "speech"?

[mi]

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?

Re: How is FILMING "speech"?

[Entrope]

The US Supreme Court has ruled that gathering evidence in support of one's claims -- particularly against the government -- is an integral part of the freedoms of speech and seeking redress. There's a huge difference between someone saying "X happened, trust me" and "X happened, here's video proof", especially when X is something they governed clearly should not be doing.

That doesn't mean the right to record public servants is unqualified, but it's definitely broad.

Re:How is FILMING "speech"?

[Curate]

Woe to those who have taken a vow of silence.

Imagine if those who have taken a vow of celibacy had to fornicate just one little time to assert their right to remain celibate.

Re:How is FILMING "speech"?

[alvinrod]

The same way written text, or a drawing with no words, or any other form of expression is considered speech.

The first amendment was created in a time when things like radio, television, the internet, etc. didn't exist and were perhaps beyond imagination. However, it's evident that the idea was ensure a freedom of expression, regardless of medium. I only wish they'd get the same fucking clue when it comes to the fourth amendment because computers and phones are pretty obviously covered by similar reasoning.

Re:How is FILMING "speech"?

[I75BJC]

An attorney told me that there is a difference between Asking and Ordering. Asking doesn't require an answer while Ordering does. LEOs can ask or order; the Citizen can respond appropriately. A Sheriff's Deputy told me that most civilians cannot tell the difference between Asking and Ordering. So they ask and are given information they want but are not legally entitled to. The task is to determine when the LEO is Asking or Ordering. It never hurts to ask for which the LEO is doing and responding appropriately. IMHO, much of the discussion here shows a misunderstanding of Asking and Ordering.

Re:No you dont

[AHuxley]

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.

Judge Clement didn't say you can't film police

[raymorris]

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.

Rights vs. Facts

[buss_error]

One my have the "right", but to any annoyed cop, that won't stay the baton to the face, the chrome bracelets, and the ride to jail. As the saying goes, "You might beat the rap, but you won't beat the ride." Until immunity is limited, and some type of consequences attain to violation of the law, bad actors in LEO will continue to behave badly. When a cop violates the law, and the taxpayers fund their defense even in the most egregious of circumstance, there is little motivation for departments or individuals to root out and stop abuse from bad cops. Quis custodiet ipsos custodes?

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.

Re:Rights vs. Facts

[Anonymous Coward]

The only fix to that is swift, decisive, and extremely harsh punishment for abuses of the law; as opposed to free all-expenses-paid vacations like they instead currently get.

If using the baton and arresting someone illegally, that shouldn't JUST cost you your job: that's assault with a deadly weapon, and kidnapping to boot. People with power over others MUST be held to a higher standard: The stick MUST be at least twice the size of the carrot, and never a carrot of its own!

Can't sue cops *personally* for requesting ID

[raymorris]

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.