Courts split over First Amendment protection for recording police performance of public duties

From the Spring 2011 issue of The News Media & The Law, page 26.

The issue of private individuals recording police activity came to the public’s attention in 1992 when George Holliday stood at his Los Angeles apartment window and videotaped Rodney King being mercilessly beaten with batons by police officers.

Holliday took the tape to a local television station, which aired it in its entirety.

It did not take long for the tape to send shock waves around the world. After the four officers charged with the beating were acquitted, anger over the incident erupted into the 1992 Los Angeles riots, leaving 53 dead and $1 billion in damage.

While videotaping police was a novelty in 1992, today Americans have the ability to effortlessly capture and distribute digital images.

This capability has fostered conflict between free expression and government authority. Police officers have arrested individuals and groups for recording on-duty police without consent, citing such actions as violations of state wiretapping and eavesdropping laws.

Evolution of image capture

Until recently, Americans typically did not carry cameras or camcorders unless they were journalists or tourists, said Lee Tien, senior staff attorney with the Electronic Frontier Foundation.

After the introduction of digital cameras to the public in the mid-1990s, consumers were freed from having to pay for film, and the developing and printing of images.

In 2009, 78 percent of U.S. households owned digital cameras, according to Michigan-based photo industry trade association PMA, formerly known as the Photo Marketing Association.

Similarly, video cameras are available in digital versions for a fraction of the price for which they were offered in the past.

Cell phone cameras have also radically transformed photography. The International Telecommunications Union estimated that 4.6 billion mobile phones were in use at any moment in 2010. More than one billion mobile phones are equipped with cameras, according to Tom Hausken, an analyst at Strategies Unlimited, a market research firm based in Mountain View, Calif.

Internet research company comScore estimated that 90 percent of mobile subscribers in the United States have a telephone that can access the mobile Web. Because these phones constantly accompany their users, people are able to effortlessly capture and transmit their digital images.

Social media sites, such as Twitter, YouTube and Flickr, make it easy to instantly distribute images to friends and family; images no longer have to stay private on personal devices.

In light of this collection and publication power, a larger number of individuals have recorded police officers’ on-duty activities without consent. In many cases, they have been arrested for doing so. Police have claimed such recordings violate local and state wiretapping and eavesdropping laws, Tien said.

Arrested individuals have challenged these arrests, asserting such recordings are not private and are protected under the First Amendment.

Courts are split on whether constitutional protection extends to the recording of matters of public interest that occur on public property.

Recording officers on a public street

As Simon Glik walked on the sidewalk next to the Boston Common in Massachusetts, he saw three Boston police officers arrest a young man near a park bench. Glik was concerned that the officers were using excessive force, and took out his cell phone and began recording the action, but did not interfere with the officers’ actions.

One of the officers noticed Glik and asked him if his phone recorded audio. After Glik answered in the affirmative, police arrested Glik, accusing him of violating the Massachusetts wiretap statute, under which it is illegal to secretly record an in-person or telephone conversation without the consent of all parties to the conversation.

A Boston Municipal Court judge dismissed the charge against Glik after the officers admitted that he publicly and openly recorded them, in contravention of the statute’s requirement that an unlawful recording be secret.

Glik filed suit, alleging the officers violated his civil rights by arresting him for openly recording police officers carrying out their duties in public.

The officers moved to dismiss, asserting qualified immunity from liability because Glik did not have a clearly established First Amendment right to document police conduct. A U.S. District Court judge in Boston last June denied the officers’ motion to dismiss.

The court in Glik v. Cunniffe held that “in the First Circuit, this First Amendment right publicly to record the activities of police officers on public business is clearly established.”

The officers have appealed denial of the motion to the U.S. Court of Appeals in Boston (1st Cir.).

Police, like many members of the public, don’t like being watched, Tien noted.

Glik elaborated on this observation in his appellate brief when making the accusation that police arrested him for videotaping their conduct because “they were concerned that his footage would portray them in a bad light.”

Because “everyone is a potential videographer these days, it has never been easier to record the police, and I think they are seizing on these wiretap laws and misusing them,” said David Milton, counsel for Glik.

Milton explained the implication of this type of police activity: “People read about these cases and are weary of putting themselves in this situation where they may face criminal charges . . . [and] in states where police can’t use the wiretap law, it is often the case that police will just arrest you for disorderly conduct or interfering with the police officer.”

Milton said he is hopeful that the ruling in this case will help guide police on when to appropriately accuse a person of violating a wiretapping statute.

In a case with a different outcome, a federal judge in Illinois ruled that the First Amendment does not guarantee the right to record police officers engaged in their public duties.

The American Civil Liberties Union of Illinois has a long history of monitoring the activity of police officers in public forums to ensure they do not impermissibly interfere with individuals’ First Amendment rights.

To bring this program into the 21st century, the ACLU wants to engage in audio-video recording in public places and forums.

Adam Schwartz, senior staff counsel at the ACLU in Chicago, said the organization is interested in recording “police officers located in plazas, sidewalks and parks, where expressive events like parades, marches and demonstrations are occurring.”

The ACLU intends to disseminate the recordings to the public and use them to request redress of any unconstitutional restrictions captured on the footage.

Fearful of prosecution under the Illinois Eavesdropping Act, which provides that a first offense of nonconsensual eavesdropping is a felony, the ACLU challenged the constitutionality of the act and moved to enjoin Chicago officials from enforcing it.

The federal court in Chicago dismissed the motion in ACLU v. Alvarez in January, holding that the lack of a First Amendment right to record police officers engaged in their official duties precluded the ACLU’s allegation that the statute violated its constitutional rights such that its enforcement could be prevented.

The ACLU appealed the ruling to the U.S. Court of Appeals in Chicago (7th Cir.), which has not yet scheduled oral arguments. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case.

“There are decades of judicial precedent from around the country, which protect the right to use machines like cameras and video recorders and audio recorders to document the activity of government officials in public places,” Schwartz said.

Although Schwartz indicated that the First Amendment “protects the activity of newsgathering” when “a citizen has a portable communication device that has the power to do . . . video recording, the First Amendment protects or ought to protect such a person who pulls it out of their pocket and aims it at how a government official is doing their job in a public place,” he said.

Discrepancy over right to record a traffic stop

On May 24, 2007, Brian Kelly was riding in a truck driven by his friend, Tyler Shopp, in Carlisle, Pa. Officer David Rogers pulled the truck over for speeding and a violation of a bumper height restriction.

In the midst of the traffic stop, Kelly placed his video camera on his lap and started recording Rogers, allegedly without consent.

While there is no dispute that Kelly was holding the camera in his lap during the traffic stop, the parties disagree as to whether Kelly was hiding the camera from sight.

Near the end of the traffic stop, Rogers informed the passengers that he was recording the encounter and then claimed to notice Kelly recording him.

Knowing that police must inform the subject when they record traffic stops, Rogers suspected Kelly was in violation of the Pennsylvania Wiretapping Act because Kelly had not informed Rogers that he also was recording.

Rogers ordered Kelly to turn over the camera and returned to his squad car to confirm his speculation with the assistant district attorney.

The assistant district attorney told Rogers it was appropriate for him to arrest Kelly for violation of the state wiretapping law, which requires the consent of all parties to record in situations where there is a reasonable expectation of privacy.

Although charges against Kelly were dropped, he sued Rogers and the Borough of Carlisle, claiming that seizure of his camera and his arrest violated his Fourth and First Amendment rights.

The federal court granted the defense motion for summary judgment, holding that Rogers was immune from liability because any reasonable officer in his situation would have relied on advice given by the assistant district attorney.

Kelly appealed to the U.S. Court of Appeals in Philadelphia (3rd Cir.), which held in October in Kelly v. Borough of Carlisle that the officer was entitled to qualified immunity on Kelly’s First Amendment claim because, due to “insufficient case law,” there was no established right to videotape a police officer during a traffic stop.

Conversely, a Maryland judge last September dismissed wiretapping charges against a motorcyclist arrested for videotaping his traffic stop and later posting the videos online. Anthony Graber was pulled over by two state troopers on Interstate 95 on March 25, 2010.

A video camera attached to his helmet recorded one of the troopers walking toward him in plainclothes, pulling a gun out and ordering him to get off his bike.

After Graber posted the footage on YouTube, police arrested him and obtained a search warrant to confiscate his computer and other materials.

He was indicted under Maryland’s wiretap law, which requires the consent of all parties to record in a situation where there is a reasonable expectation of privacy.

In Maryland v. Graber, Harford County Judge Emory Plitt held that the Maryland Wiretap Act “does not in any way prohibit citizens from recording and posting video . . . on the Internet. The core element of any possible criminal violation [m]ust be that a private oral communication has also allegedly been recorded and posted.”

After concluding that “there is no possibility that ‘society is prepared to recognize as reasonable’ any purported expectation of privacy in statements made by a police officer performing his official duties in a public place,” the court dismissed charges against Graber, declaring that conversations between officers and offenders during a traffic stop are not private.

State legislature proposes bill recognizing right to record

In the midst of these conflicting cases, a bill has been proposed in Connecticut that, if enacted, would be the first law in the U.S. to explicitly recognize the rights of individuals to record police in the performance of their public duties.

The bill would make any police officer who interferes with a person taking a photo or video image of an officer in the performance of his or her public duties liable for damages, presuming the person did not obstruct or hinder the officer’s performance.

As such, the bill would leave room for police discretion to make arrests when necessary to protect legitimate interests.

State Senate Majority Leader Martin Looney said the bill was introduced in response to two incidents of “documented harassment” that occurred in the state during the past few years.

In March 2009, an East Haven officer arrested a priest for recording the officer while he questioned a store owner.

Last October, several Yale University students were threatened, and some were arrested, for taking photographs of New Haven police officers during a club raid.

If passed, the law would help educate police about people’s rights, Looney said.

The bill has already been approved by the Judiciary Committee and was referred to the Office of Legislative Research and Office of Fiscal Analysis.

Looney said he is hopeful it will become a law and serve as an example for other states.