July 23, 2014
Throughout the United States, cell-phones are being used to film a range of activities and events, from the newsworthy to the most mundane of daily activities. A cell-phone video can be uploaded to the internet and shared to thousands within a matter of seconds. With the increasing popularity of video-sharing, it is no surprise some people have taken to video-taping police activities, including their own personal run-ins with the police. The recent video of Eric Garner, a New York man who passed away soon after a police officer had placed him in a chokehold, is a perfect example. This raises an important question concerning the legality of recording police activity; both for members of the public who want police to be accountable for their actions, and for police officers who need to be able to do their jobs without interference. Currently, there is some authority for the proposition that recording police activity, such as arrests or traffic stops of others, is protected under the First Amendment.
The First Circuit Court of Appeals addressed this issue in 2011, and provided a useful framework for other courts. Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), involved a plaintiff who was arrested for videotaping the arrest of another man in the Boston Common. When the charges against Glik were dropped for lack of probable cause, he brought suit alleging violation of his First Amendment rights. The Court recognized that the First Amendment protects the filming of government officials in public spaces, and listed numerous circuit and district court cases in line with this view. It further noted the importance of uncovering potential abuses, and found the fact that officers “were unhappy they were being recorded during an arrest . . .[did] not make a lawful exercise of a First Amendment right a crime.” Last, the Court explained this right was not without limitations, and could be subject to “reasonable time, place, and manner restrictions.” The “peaceful” recording of an arrest in a public place that “did not interfere with police officer’s performance of their duties” was not subject to limitation.
One year after the Glik case, the filming of police activity came under First Amendment scrutiny in the Court of Appeals for the Seventh Circuit. Again, the Court held recording police activity was entitled to some degree of First Amendment protection. ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012) Similar holdings have been reached in the Court of Appeals for the Eleventh Circuit, Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), and in the Northern District of Ohio (Crawford v. Geiger, 2014 WL 554469). Under these cases, there exists a First Amendment right to film police activity, however there is less authority for filming a traffic stop specifically. In fact, the Third Circuit decision of Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010), found no clear First Amendment right to videotape a traffic stop. This case was cited by the defense in Glik and ultimately set-aside because traffic stop “is worlds apart from an arrest on the Boston Common.” Recently, the First Circuit has back-pedaled from this reasoning and found a First Amendment right to film a traffic stop. (Gericke v. Begin, 2014 WL 2142519, (1st Cir. 2014).
In cases where individuals were arrested for filming officers, violations of wiretapping/eavesdropping statutes and disorderly conduct charges are the most common. Due to important public interests in exposing corruption and promoting accountability, it is likely other courts will follow the First, Seventh, and Eleventh Circuits and recognize a First Amendment right to film police activity; subject to time, place and manner restrictions.
For a look at Federal Court of Appeals cases related to this topic, try a plain language search on WestlawNext for “First Amendment right to film police.”