Bulletin: Fall 2011, Volume 17, Number 1

Cops and Citizens Clash over Recordings of Law Enforcement Activity

Cops and Citizens Clash over Recordings of Law Enforcement Activity

A rash of recent clashes between police and citizens who are recording police activity in public has raised the eyebrows of civil liberties advocates who argue that there is a First Amendment right to record activity in public places, especially when it implicates important issues of public concern such as police conduct.

Advances in technology have given many people access to video and audio recording devices via their cell phones, but have led to more confrontations between police and citizens when these cell phones are used to record suspect police behavior. Police often argue that these citizens are violating state wiretapping laws, which sometimes require the consent of all people taking part in a conversation before audio can be recorded. But in August 2011, the U.S. Court of Appeals for the 1st Circuit ruled in Glik v. Cunniffe, a case involving the recording of Boston police officers, that recording or videotaping of government officials engaged in their duties in a public place “is a basic and well-established liberty safeguarded by the First Amendment,” as long as it does not directly interfere with law enforcement activity. Glik v. Cunniffe, 655 F.3d 78 (2011)

“This is a resounding victory for the First Amendment right to openly record police officers carrying out their duties in a public place,” said Sarah Wunsch, a staff attorney with the American Civil Liberties Union (ACLU) of Massachusetts, in an Aug. 29, 2011 press release. “It will be influential around the country in other cases where people have been arrested for videotaping the conduct of the police.”

1st Circuit Finds First Amendment Right to Record in Public Places

The 1st Circuit case arose from a fall 2007 incident when lawyer Simon Glik was walking past the Boston Common. He came across three Boston police officers who appeared to be hurting a man they were arresting. One bystander yelled “You are hurting him, stop.” Glik stopped about 10 feet away from the police, took out his cell phone, and started making a video recording of the arrest.

An officer approached him once the arrest was complete. “I think you have taken enough pictures,” he said, according to the 1st Circuit decision. “I am recording this,” Glik replied. “I saw you punch him.” When an officer asked Glik if his phone recorded audio, Glik said that it did. The officer then arrested him for unlawful audio recording in violation of Massachusetts’ wiretap statute, M.G.L.A. 272 § 99. Glik was taken to the South Boston police station, and when he was booked, the police took his cell phone and a computer flash drive, holding them as evidence. More than two years later, Glik sued the officers and the City of Boston in federal court with the help of the ACLU of Massachusetts, accusing the department of violating his civil rights.

The City of Boston argued that the police officers were entitled to “qualified immunity,” from Glik’s lawsuit. “Qualified immunity” is a doctrine established by the U.S. Supreme Court exempts state officials from lawsuits stemming from violations of someone’s federal constitutional rights unless the violation was against “clearly established law.”

For Glik to prevail, he needed to demonstrate that these rights were “clearly established.” The 1st Circuit held that the First Amendment right to record officers performing their duties in public was “clearly established,” and thus that the officers should not be immune from the lawsuit. “The state of the law at the time of [the incident] gave the defendants fair warning that their particular conduct was unconstitutional,” Judge Kermit Lipez wrote for a unanimous court. “A citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

The court also made clear that it did not matter that Glik was not working as a credentialed journalist when he was filming the police in action. “The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press … Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

“Police officers must be trained to respect the right of people to openly record their actions in public,” said David Milton, an attorney who represented Glik for the ACLU, according to the August 29 press release announcing the court’s decision. “Simon did what we hope any engaged citizen would do, which was documenting what he thought looked like an improper use of force, and his action in no way interfered with the police.”

Miami Beach Police Revise Policy After High-Profile Incident

On May 30, 2011, Florida resident Narces Benoit made headlines nationwide when he captured video of Miami Beach police officers shooting and killing Raymond Herisse, a 22-year-old who hit a police officer with his car before driving through police barricades. After the shooting, a YouTube video posted by Benoit shows police officers approaching him after they notice him making the recording and pointing their guns directly at the camera while Benoit got into his car.

Benoit later told CNN during a June 7 interview that when one of the police officers noticed him recording, he “jumped in the truck, [and] put a pistol to my head … My phone was smashed — he stepped on it, handcuffed me.” According to a June 8 Reporters Committee for Freedom of the Press (RCFP) story, Benoit told reporters that he stored the video on his phone’s SIM card, which he hid in his mouth and did not disclose to officers when they requested it.

In reaction to the controversy, the Miami Beach police department enacted new guidelines in August that prohibit officers from searching or seizing video footage of pictures taken by the general public or members of the media who capture images of police officers doing their job in public areas, except under certain circumstances. The new policy says that the police department “recognizes that the taking of photographs and/or videos by private citizens and media personnel is permitted within areas open to general public access and occupancy.” It also says that civilians may record police activity as long as they remain at a reasonable distance, do not interfere with the employee’s duties and responsibilities, and do not create a safety concern. The full set of guidelines can be found at http://blogs.nppa.org/advocacy/files/2011/08/MBPD-Letter-08-06-113.pdf.

In an August 6 letter to Police Chief Carlos Noriega, the National Press Photographers Association (NPAA) applauded the changes made by the department, but still urged caution. “The real challenge will be in the ongoing education and training of your officers,” wrote NPPA’s General Counsel Mickey Osterreicher. “It is also critical that when violations of this policy occur — they are quickly and thoroughly investigated by your department — and employee(s) found to have violated departmental policy be properly disciplined and criminally charged if necessary.”

Long Island Case Adds to the Trend

According to an Aug. 2, 2011 RCFP report, a New York police officer arrested a freelance photojournalist after he tried to film police on the side of the road arresting suspects who had allegedly led officers on a police chase.

A YouTube video shows a police officer approaching Phil Datz, of the Long Island-based Stringer News Service, and yelling at him to “go away, go away now,” according to the RCFP story. The video can be viewed at http://www.youtube.com/watch?v=oI38MnpAlW4&feature=player_embedded. The officer eventually grabbed Datz’s press badge, asked his name, and said, “I want you to go away and not stand here and argue with me, otherwise you’re … going to be locked up.” The story said Datz was arrested, and charged with obstruction of governmental administration. According to a July 30 Newsday story, the charges were dropped soon afterward. Police Commissioner Richard Dormer told the Long Island Press in a statement for an August 1 report that there was an internal review of the incident and all officers will undergo media relations refresher training. “The police department believes in keeping an open line of communication with the media and we will be reviewing the department’s policy concerning involvement with the news media,” the statement said.

ACLU of Illinois Challenges State Eavesdropping Statute

On Aug. 18, 2010, the ACLU of Illinois filed a lawsuit in the U.S. District Court for the Northern District of Illinois challenging the constitutionality of Illinois’s Eavesdropping Act, Ill. Comp. Stat. 5/14-2, which criminalizes the use of an “eavesdropping device” for “recording all or any part of any conversation,” unless the person does so “with the consent of all the parties to such conversation or electronic communication.” It does so “regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” In other words, it does not matter whether the people in the conversation have a reasonable expectation of privacy. In its complaint in ACLU of Illinois v. Alvarez, the ACLU argued that the law was being used “to arrest and prosecute those who want to monitor police activity in order to deter or detect any police misconduct,” according to an August ACLU press release. The ACLU cited an incident in Champaign, Ill. where a group of community activists filmed and recorded police interactions with citizens in public as part of an attempt to document police practices in predominantly African-American neighborhoods. The activists were charged with violating the Illinois law, although charges were later dropped.

“There is a lot of talk about the need for more transparency in government – we should demand that transparency from the policy,” Harvey Grossman, Legal Director for the ACLU of Illinois, said in the press release. “Organizations and individuals should not be threatened with prosecution and jail time simply for monitoring the activities of police in public, having conversations in a public place at normal volume of conversation … Illinois’ eavesdropping law does not permit individuals or groups such as ours to gather critical information about police activities — information that we share with our members, policy makers and the general public.”

The district court dismissed the ACLU’s complaint on procedural grounds on Jan. 10, 2011, for failure to allege an actual injury. “The ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record,” the court wrote. “The ACLU proposes an unprecedented expansion of the First Amendment.” An appeal to U.S. Court of Appeals for the 7th Circuit was heard on Sept. 13, 2011. In briefs filed before the courts, the state of Illinois argued that the First Amendment right to receive information via audio recording requires a willing speaker, and that no speaker is willing without his consent to audio recording. The state argued that people would have the right to watch and listen to police and write down what they say, but that recording their activity steps over the line. The ACLU countered in its August 26 reply brief that “the right to record is part of the well-recognized right to gather core protected speech about government officials, particularly in public forums, to record that information in a variety of manners, and then to disseminate it and use it to petition the government.” The court has not yet ruled on this case.

The RCFP, joined by the American Society of News Editors, the National Press Photographers Association, and the Society of Professional Journalists, filed an April 22, 2011 amici curiae brief urging the court to rule that the law, as applied to citizens recording police, is unconstitutional. “The U.S. Constitution protects people who gather and disseminate information about matters of public interest,” the RCFP wrote. “Yet, the arrest and prosecution of such people under the Illinois Eavesdropping Act violate the constitutional protection and run counter to the text, history and longstanding interpretation of the First Amendment. … The Act is a national outlier among the states, the overwhelming majority of which (along with the federal government and the District of Columbia) require the subject of a recording to have a reasonable expectation of privacy in the communication. … As such, the Act vests in law enforcement near-limitless discretion to decide which recordings should be concealed from public view and which may be conveyed to the public.”

The ACLU of Illinois said in an August press release that it brought the case because it sometimes wants to monitor police activity in Illinois and worries that it could be subject to prosecution if it does so. “We hope the Appeals Court will act swiftly to strike down this application of the eavesdropping law,” said Adam Schwartz, senior staff counsel for the ACLU of Illinois, in the press release. “If one can be prosecuted for recording a police officer doing their public duty in a public space, truly effective monitoring of police by the citizens of Illinois will remain out of reach. It is time to constrain the bounds of this law and bring transparency to the practices of our law enforcement agencies.”

Journalism Professor Detained by Police, Video Deleted

A Loyola University journalism professor was detained by Chicago police on November 12 after videotaping them arresting a young man who had jumped a turnstile at a subway station, and the police deleted the footage he had recorded, according to a November 22 RCFP story.

Ralph Braseth had been working on a documentary about young black people who frequent an affluent area of Chicago. He had been filming the group for several months, and told the RCFP that he had recorded arrests in the past. Because of that history, he said he was surprised when the Chicago police officer “expressed his strong feelings that it was illegal to videotape police during an arrest.”

While Braseth was sitting in the police car, one of the officers questioned him about why he was filming the arrest, and asked him to hand over the recording equipment. The officers looked at the footage, Braseth told the RCFP, and deleted it. “As soon as he touched that button, I was thinking, ‘You’ve got to be kidding me,’ ” he said. He was released 20 minutes later, and no charges were filed. The police gave him back his camera, and Braseth filed a complaint with the police department the next day. The incident is still being investigated.

ACLU Publishes Guidelines for Recording Police

The ACLU has published a guide on its website entitled “Know Your Rights: Photographers.” The guide points out that when individuals are lawfully in a public place, they have a right to photograph anything that is in plain view. On private property, property owners set their own rules about what may and may not be photographed. Police officers cannot generally confiscate or demand to see photographs or video without a warrant, and police may not delete photographs or video under any circumstances. They can, however, order those who are truly interfering with their operations to stop. The ACLU’s full guide is available online at http://www.aclu.org/free-speech/know-your-rights-photographers.

These incidents have become ubiquitous in recent years as access to video recording technology has much easier. The Nielsen Co. estimates that half of Americans will have a smartphone by the end of this year, according to a November 3 story by St. Louis Dispatch investigative reporter Jeremy Kohler for the The Crime Report, a website that covers nationwide criminal justice issues.

– Emily Johns
Silha Research Assistant