Legal Alert: Recording Law Enforcement in Public (PDF)

LEGAL ALERT INFORMATION FROM THE OFFICE OF THE GENERAL COUNSEL – May 10, 2021 VIDEO/AUDIO RECORDING OF LAW ENFORCEMENT IN PUBLIC In July, 2013, the Office of the General Counsel issued a legal bulletin alerting law enforcement that filmi...

LEGAL ALERT INFORMATION FROM THE OFFICE OF THE GENERAL COUNSEL – May 10, 2021 VIDEO/AUDIO RECORDING OF LAW ENFORCEMENT IN PUBLIC In July, 2013, the Office of the General Counsel issued a legal bulletin alerting law enforcement that filming of deputies in public has been found to be protected by the First Amendment, and that deputies should show great tolerance when this occurs and not base an arrest merely on the fact that a member of the public is filming their conduct. (See Legal Bullet: “Members of the public taking videos of on- duty deputies in public areas,” July 12, 2013, attached following this Legal Alert) A recent decision by the 4th District Court of Appeal (Ford v City of Boynton Beach, Fla. 4th DCA May 5, 2021) has been reported in the media with a misleading headline that it is “illegal to record police in public” and that individuals who record police in public may be arrested for doing so. THIS IS NOT AN ACCURATE READING OF THE COURT’S RULING. In the Ford case, a mother was called to a movie theater by law enforcement officers after her juvenile son was detained by mall cops for sneaking into the movies without paying. When she arrived, she immediately began video and audio recording the officers on scene. This interaction takes place entirely in a public place. In numerous exchanges back and forth with the mother, officers tell her she cannot record them without their permission; however, she continues to record and argue with officers. She is ultimately arrested and booked for obstruction without violence and violation of the wiretap statute for intercepting oral communications, but the State declined to file any charges. The mother filed a lawsuit against the municipality alleging that the arrest violated her civil rights. To establish a civil rights violation, the mother had to establish that there was no probable cause for her arrest. The trial court found probable cause for her arrest and she appealed. The appellate court agreed with the trial court that probable cause existed for the mother’s arrest, however this was based SOLELY on the arrest for the obstruction charges. The appellate court never addressed the issue of whether there was probable cause to arrest the mother for recording law enforcement officers in public. The Ford decision is consistent with prior guidance from OGC on this issue, and consistent with the current state of the law: An arrest should not be made merely because members of the public are recording law enforcement while performing their duties in a public setting. However, IF such recording obstructs the performance of law enforcement in their official duties, then appropriate steps may be taken to address the obstruction. This may include verbal warnings to the individual that they are obstructing your duties/investigation, designating a place where they can stand and record you without obstructing your duties/investigation, and advising them that they will be arrested if they continue to obstruct your duties/investigation. The contents of this document are directed to employees of Broward Sheriff Office (BSO) and in no way modify or affect BSO’s adopted policies and procedures. Individuals or administrative agencies seeking legal advice should refer to their own attorney for guidance. An O.G.C. Publication – July 12, 2013 Evolving Law !---This NewsFlash is an effort to brief BSO members of the current status of this legal issue—see last page for practical tips NewsFlash ! Members of the public taking videos of on-duty deputies in public areas GLIK v. CUNNIFFE have taken enough pictures.” Glik replied, “I am 655 F.3d 78 (1ST Cir. 2011) recording this. I saw you punch him.” An officer http://scholar.google.com/scholar_case?case=10945354 then approached Glik and asked if Glik's cell 769903429853&q=glik&hl=en&as_sdt=40003 phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in Simon Glik was arrested for using his cell handcuffs, arresting him for, inter alia, unlawful phone's digital video camera to film several audio recording in violation of Massachusetts's police officers arresting a young man on the wiretap statute. Boston Common. The charges against Glik, which included violation of Massachusetts's The court noted that the fact that the wiretap statute and two other state-law offenses, “officers were unhappy they were being were subsequently judged baseless and were recorded during an arrest... does not make a dismissed. Glik then brought this suit under 42 lawful exercise of a First Amendment right a USC 1983 claiming that his arrest for filming the crime.” Likewise, the court found no probable officers constituted a violation of his rights under cause supporting the wiretap charge, because the First & Fourth Amendments. the law requires a secret recording and the officers admitted that Glik had used his cell As he was walking past the Boston Common phone openly and in plain view to obtain the on the evening of October 1, 2007, Simon Glik video and audio recording. caught sight of three police officers—the individual defendants here—arresting a young The First Amendment issue here is, as the man. Glik heard another bystander say parties frame it, fairly narrow: is there a something to the effect of, “You are hurting him, constitutionally protected right to videotape stop.” Concerned that the officers were police carrying out their duties in public? Basic employing excessive force to effect the arrest, First Amendment principles, along with case law Glik stopped roughly ten feet away and began from this and other circuits, answer that recording video footage of the arrest on his cell question unambiguously in the affirmative.In phone. reaching this conclusion the court stated that “In our society, police officers are expected to After placing the suspect in handcuffs, one of endure significant burdens caused by citizens’ the officers turned to Glik and said, “I think you exercise of their First Amendment rights. The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within First Amendment principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Glik at 82. Glik reflects the federal courts’ continued steps towards protecting such conduct by the public. See also, Smith v. City of Cumming, 212 F.3d 1332 at 1333 (11th Cir.2000) (recognizing a First Amendment right to photograph police activity, subject to reasonable time, place, and manner restrictions); So how do the other federal circuit courts address the issue? ----- Read on! Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing a “First Amendment right to film matters of public interest”); Demarest v. Athol/Orange Cmty. Television, Inc., 188 F.Supp.2d 82, 94–95 (D.Mass.2002) (finding it “highly probable” that filming of a public official on street outside his home by contributors to public access cable show was protected by the First Amendment, and noting that, “[a]t base, plaintiffs had a constitutionally protected right to record matters of public interest”); Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634, 638 (D.Minn.1972) (holding that police interference with television newsman's filming of crime scene and seizure of video camera constituted unlawful prior restraint under First Amendment); cf. Schnell v. City of Chicago., 407 F.2d 1084, 1085 (7th Cir.1969) (reversing dismissal for failure to state a claim of suit claiming police interference with news reporters and photographers' “constitutional right to gather and report news, and to photograph news events” under the First Amendment (internal quotation mark omitted)), overruled on other grounds by City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Connell v. Town of Hudson, 733 F. Supp. 465, 471–72 (D.N.H.1990) (denying qualified immunity from First Amendment claim to police chief who prevented freelance photographer from taking pictures of car accident); Pomykacz v. Borough of West Wildwood, 438 F. Supp. 2d 504, 513 (D.H.J. 2006) (Photographing a police officer in connection with a citizen’s political activism was protected by the 1 st Amendment); Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa 2005) (Citizen’s video tapping police activities of truck inspections 20-30 feet away is an exercise of a free speech right to film law enforcement officers in the performance of their public duties.) [Other cases not cited herein as they are repetitive] But See….. A few federal courts have been hesitant to reach as far as Glik’s holding. See Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3rd Cir. 2010) (The court did not directly address if there is a right to videotape officers, but held that the First Amendment right to record matters of public concern is far from absolute, and does not clearly establish the right to videotape police officers during a traffic stop); Szymecki, v. Houck, 353 Fed. App'x. 852, 853 (4th Cir.2009) (The district court concluded that Szymecki's asserted First Amendment right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct.). In Summation! Given the existence of Glik and the Smith case, it is more likely than not, federal courts will allow this type of conduct by the public in Florida. With the trend by the courts to protect videotaping by the public of law enforcement activities in plain view, BSO deputies and personnel should show great tolerance when this occurs and not base an arrest merely on the probable cause that the member of the public is filming their conduct  - Practical Tips in the Field -  The videographer is actually obstructing LEO lawful activities such as an arrest or questioning of subjects etc…. o Direct the videographer away from the area with a verbal and body signal command if practical. If they comply and relocate themselves to a safe distance, then the videotaping can continue. If they refuse to relocate and obstruct LEO lawful activities, an arrest may be made (based on probable cause if it exists) of obstruction and the video may be evidence of that and should be preserved as evidence.  The videographer is actually endangering themselves and in the zone of risk by recording a police stand-off or violent situation unfolding in the immediate area …. o Same as above but if non-compliance by the videographer, physical escort to a safe location may be necessary. The Key is… Has law enforcement proffered reasonable time, place and manner restrictions on videotaping given the totality of the circumstances?