Friday, February 24, 2017

5th Circuit: Citizens can videotape police

The Fifth Circuit Court of Appeals ruled last week that citizens have the right to videotape police officers while they conduct arrests or perform other actions. The court ruled in Turner v. Driver that the right is protected by the First Amendment.  Technology leapfrogged ahead of the courts as the courts have been playing catch-up to the new-found ability of citizens to videotape the police with smartphones and then immediately post the video to social media.  The Fifth Circuit finally got a case that allowed it to take a crack at this issue.

A man stood across the street from a Fort Worth, Texas police station and videotaped the police station. The police confronted him and asked him for an ID. Phillip Turner refused to identify himself. The police handcuffed him and placed him in the back of a police car. They talked to Mr. Turner and then released him. Mr. Turner sued the police officers and alleged they violated his rights under the First and Fourth Amendments. The trial court ruled in favor of the police. The plaintiff appealed to the Fifth Circuit.

The Fifth Circuit stated that some circuits had ruled that citizens indeed had a right to videotape the police while they performed their duties and that no circuits had found that citizens did not have such a right. The court held:

We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

The First Amendment protects freedom of speech and freedom of the press. But “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” News-gathering, for example, “is entitled to first amendment protection, for ‘without some protection for seeking out the news, freedom of the press could be eviscerated,’” even though this right is not absolute. The Supreme Court has also recognized a First Amendment right to “receive information and ideas,” means within the law....

The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a
precondition to enlightened self-government and a necessary means to protect it.” Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing....

We agree with every circuit that has ruled on this question: Each has concluded that the First Amendment protects the right to record the police....
The court noted that the First and Seventh Circuits have ruled that citizens have a right to videotape police.  Earlier post

However, Mr. Turner may have won this battle but he lost the war.  The court pointed out that he was videotaping the police station itself and not a police officer arresting a suspect or conducting a traffic stop. Such conduct could have been preparation for a criminal act.  The massacre of Dallas police officers last year was cited in the appeal.  Thus while the plaintiff managed to create a "new right", he managed to lose his case.  Bittersweet results. 


Anonymous said...

In all seriousness, I am completely up in the air on this. I think a private citizen should have the right to film things that are in public view, but I also feel there should be some protection of privacy for those who are the object of the filming.

I would be very disturbed by a man sitting across the street on a public bench filming my house, but I don't want my next door neighbor to demand I take down my front door security camera because it is filming his house as well. And if we're honest, Philip Turner was doing this to provoke the cops and pick a fight. He sounds like one of those sovereign citizen buttholes.

Maybe we should axe the king of video and professional daiquiri dealer Ray TK about how he handle dis shit from behind da wheel of his Bentley.

Anonymous said...

Sadly we have no idea how many security cams we walk past every day. There is no right not to be filmed. You pass hundreds per day. I do think you have a responsibility not to interfere with police work. And like the other guy said, not be an ass just to be an ass on YouTube.

Anonymous said...

Thank God! I knew my law school professors were wrong when they said the 5th Cir. was the worst!

Anonymous said...

Video the police all you want. What I expect to happen is those officers who don't wish to be filmed will be wearing balaclavas like we see in other countries.

Sitting outside of a police station and filming will get you more than officer behavior though. You film crime victims, suspects, witnesses, and potentially informants. The recording of these people has the potential to influence their behavior in a way that impacts the public at large.

Anonymous said...

bc normal people sand in front of a police station and just start recording the ongoings with their phone. That's why. Nothing creepy or instinctively suspect about that at all in today's world.

Four Damned Attempts To ID Street Signs Later.. said...

8:35; I assume you are serious. In that event, can you state when the last time was that you or anyone you saw was standing outside a police station 'recording the ongoings with their phone'? Please also define 'normal'.

As an ajoinder; I worked in Public Service for many years and the strict policy was always that it was improper and not allowed for ANYbody to come into the building and photograph or film citizens who in the building to be served. This policy was put in place mainly to control the media who liked to show up with cameras and embarrass people. But, it would now apply to all these 'normal people' who have an itch to just start recording whatever they see, wherever they are. How might this policy now be viewed in a legal context?

Anonymous said...

Unless there is a constitutional amendment, the expectation of privacy which we have had for hundreds of years is gone with the wind. The cell phone means constant camera access of ALL public places and activity, especially the work of police. "Private areas" are also accessible but that's where the Courts will come in, on a case by case basis. Most of the time it'll be after the video has already been published! The police have been caught many times with their pants down already, violating their own policies. Fortunately for them, many of the violations will be excused since they come against black thugs who have no clout. But as time goes on, they will have to make serious adjustments, when VIP's and well-heeled citizens are abused on camera and cost the city millions. Those officers who think they can still operate in the old way are just expensive ticking bombs.

Anonymous said...

I don't give a damn about the advances of technology 'leapfrogging' the ability of the courts to keep up. The fact that the technology exists is not the problem or the issue.

I still have a problem with a member of the media or a private citizen walking into a welfare, IRS, social security or medical clinic waiting room and video-taping the people sitting there for service or treatment and publishing it on the nightly news or social media.

Anonymous said...

This may be a thorny issue but I come down on the side of allowing videos unless there's a greater prevailing interest, e.g., national security, etc. Embarrassment of collecting welfare, walking out of a house of ill repute, attending a rally makes no difference. There is no restriction on using a camera for photographs, so videos should be OK.
I do agree we need to sort though this carefully but my inclination is not to abridge the rights.

someoneinnorthms said...

Channeling my inner Cajun Chef for this opinion out of Naw'lins . . .

I GUAR-AWN-TEE that if the roles were reversed the outcome would have been different. If law enforcement officers had stood on a sidewalk outside your home recording the comings and goings, it wouldn't be considered a search for Fourth Amendment purposes. If the sanctity of one's home is not protected from a certain activity, why should law enforcement officers' workplaces be any different? The answer to that is fairly obvious in my mind. The militarization of our law enforcement is contributing to more problems than it solves.

Anonymous said...

Maybe we do have the right to videotape LEO. Big deal.

The real question is why do people videotape themselves all the time? If you are one of these morons I wonder if you know how many "friends" have blocked your news feed. Nobody wants to see you working out, eating, giving yourself a motivational pep talk or a thousand other ridiculous things.

Put the selfie stick away. You're not that interesting!

Kingfish said...

Court made it clear that hanging around just taping a police station for no reason could be questioned and prohibited. The events such as arrests or traffic stops are more spontaneous or unexpected events. Intent plays into it as well.

Anonymous said...

King - there are prominent law firms in Jackson that film the police station at all times in order to solicit clients.

Anonymous said...

Someone issue 12:14 a new tinfoil hat.

Nikkon said...

There is no restriction on using a camera for photographs, so videos should be OK.

3:27; Do you actually believe that? There are indeed restrictions on using cameras. Let me help you. Here are just a few of several restrictions on using cameras.

Cameras can not be placed in restrooms.

While you can take pictures from a public road, it is a violation of the law to use a telephoto lens to shoot photos from a public road into the windows of a residence where privacy is expected by the occupants.

You can not come into my yard and take pictures.

You can not use a camera in a court room unless the presiding judge says you can.

Allen Funt's Ghost.. said...

If a person enters a restaurant (or other place of business) and starts video-ing patrons and guests, is the restaurant owner within his rights to throw the man out or does the man have a right to do that?

I'm not asking what you think or what you'd like the answer to be. I'm asking for an honest legal answer to the question.

Anonymous said...

8:43. Private property. Up to the owner or custodial agent of property. Even if the property is open for public business it's still the owner's right.

Howard Used My Video.. said...

6:14....Well, unless the PoPo are arresting somebody in a restaurant and I want to video it on my cell phone and provide it to WLBT. That sort of shatters your argument.

Anonymous said...

8:13' 6:14 is can film the po-po's in a restaurant unless the manager tells you not to. Private business has a right to set rules inside of their establishment, so long as those rules apply to everyone equally under the commerce clause.... However, if you are an agency of the government, you have no constitutional rights. The constitution protects the people from an over-reaching government, it foes not protect the government from the people

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