Say What, Tony Perkins? »« God Told Carson to Talk About Flat Tax

Appeals Court Upholds Right to Record Police

Another appeals court (I believe this is the third one) has ruled that there is a First Amendment right to video record the police when they’re on duty. This case involves a woman who started to record a traffic stop, was told to stop (and did) but then they demanded the camera to delete it.

The First Circuit Court of Appeals has ruled that American citizens have the right to film police officers in public.

The federal appeals court declared that Carla Gericke was exercising her First Amendment right when she attempted to film a late-night traffic stop. Gericke was driving behind Tyler Hanslin, because she did not know the way to his home. When she saw police lights flash behind her, she assumed she was being hailed and pulled over.

Sergeant Joseph Kelley approached her vehicle and told her that he had meant to pull Hanslin over, and she moved her vehicle to a nearby parking lot. Once there, she exited her vehicle and approached Hanslin’s with her video camera, informing Sergeant Kelley that she was going to record the encounter. Sergeant Kelley ordered her back to her car, and she complied.

Shortly thereafter, Officer Brandon Montplaisir arrived at the scene, and he approached Gericke and demanded to know where her video camera was. When she refused to tell him, he arrested for her disobeying a police officer. At the station, officers also charged her with unlawful interception of oral communication.

This is a lot like what goes on in schools, where teachers and administrators continually violate the rights of students either out of ignorance or malice. It’s time for a nationwide program to make sure every police officer knows that they cannot prevent someone from videotaping them. And once that’s done, they can be held accountable because they will be knowingly violating someone’s rights (without that, you can’t overcome qualified immunity).

Comments

  1. soul_biscuit says

    . . . they will be knowingly violating someone’s rights (without that, you can’t overcome qualified immunity).

    That’s not quite right. A plaintiff overcomes qualified immunity by proving that a reasonable police officer would have known that he was violating her rights. The officer himself does not have to know that he is acting in violation of the Constitution, as long as the law on the point is clear enough that he has no excuse for not being aware of it. Decisions like this one put officers on notice.

  2. says

    I think Police officers (among other public servants) should be required to record themselves at all times they are on duty.

  3. eric says

    @1 – given the extreme deference that prosecutors and the courts pay to law enforcement officers in general, I would say Ed is right in fact if not in theory. Officers are going to have to go through some documented training course which includes the public’s right to film, before any citizen is going to win a suit against a police officer.

  4. soul_biscuit says

    Officers are going to have to go through some documented training course which includes the public’s right to film, before any citizen is going to win a suit against a police officer.

    The qualified immunity question has nothing to do with the officer’s knowledge and everything to do with the state of the law. if the case law on the point is clear enough that a reasonable officer would know that his conduct was a violation, no qualified immunity. The officer’s subjective awareness of the law has no practical or legal effect. The Wikipedia article has a good overview.

    Do you know of any suit where the individual officer’s knowledge of the law played any role in determining whether he was liable for a constitutional violation?

  5. smrnda says

    All cops should be recorded during the times they are working and pretty much all their interactions with the public should be matters of public record. People should be able to view the cops doing their jobs and should be allowed to post complaints, and complaints should translate into real consequences.

  6. wscott says

    Sergeant Kelley ordered her back to her car, and she complied.

    [Standard IANAL & we don't know the full details of the incident disclaimers] Recording questions aside, this part is perfectly legal. Police do have authority to clear people from the scene of a crime/investigation, to include traffic stops. She should’ve been able to keep filming from her car if she wanted, but the officer was within his rights to tell her to move away. Doesn’t excuse the rest of it, of course.

  7. maddog1129 says

    While we are creating the manual and telling and training officers that “It’s okay for people to film you on duty,” why don’t we also put in the manual and train and tell officers, “get a warrant, get a warrant, get a warrant, get a warrant, get a warrant,” just like it says in the Constitution?

  8. eric says

    Do you know of any suit where the individual officer’s knowledge of the law played any role in determining whether he was liable for a constitutional violation?

    Do you know of any suit where an individual officer has been successfully sued for taking someone’s camera or phone? I don’t.

    The courts seem extremely unwilling to remove the qualified immunity from police officers in regards to these sorts of crimes. That says to me that in practice the courts do not see this as being something a resonable police officer would know to be illegal. The way to change what the legal ‘reasonable police officer’ is expected to know is to institute training courses for police officers that cover the subject. That will (in theory) change the legal expectation of what a reasonable police officer would know.

  9. says

    Oh, sure, you’re for spying on cops now, but you’ll change your mind when some good police officers are run through the ringer after the next Rodney King “incident”!

  10. marcus says

    Also everyone should get the app for immediate uploading to the cloud or a secure bucket.

  11. DaveL says

    When she refused to tell him, he arrested for her disobeying a police officer.

    Is is just me, or should this not even be a “thing”? In most jurisdictions I know of, the powers of police officers to give orders is limited to certain contexts, like directing traffic, dispersing crowds, or effecting stops or arrests. Having a catchall “disobeying police” law on the books just invites abuse.

  12. D. C. Sessions says

    Having a catchall “disobeying police” law on the books just invites abuse.

    And of course, reading that twisted minds across the Net leap to examples.

  13. dugglebogey says

    Why is it when a citizen doesn’t know the law, he goes to jail (ignorance of the law is no excuse!) yet when a police officer doesn’t know the law, he doesn’t get punished at all, no harm no foul? He gets PAID to know the law, the citizen must learn it at his own expense.

    This makes no logical sense.

  14. D. C. Sessions says

    This makes no logical sense.

    Of course it does. You just don’t like the implications.

  15. soul_biscuit says

    . . . yet when a police officer doesn’t know the law, he doesn’t get punished at all, no harm no foul?

     

    The situation is not so dire as this. As I’ve been trying to explain, a plaintiff in a civil rights case does not have to prove that the officer in question knew his conduct violated her rights. She has to prove only that the law is clear enough that he had no excuse not to know that he acted illegally. As the Supreme Court recently put it, the plaintiff must prove that, “at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.'” That was Ashcroft v. al-Kidd in 2011.

    Do you know of any suit where an individual officer has been successfully sued for taking someone’s camera or phone? I don’t.

    If you know of any case where a court threw out a civil rights suit for the specific reason that the officer in question did not know his conduct was illegal, I’d be interested to know about it. Otherwise, you’ve given nothing but your own speculation.

    The excerpt I quoted above is the actual law. In practice, that is what courts follow. In practice, an officer’s knowledge of the law is irrelevant. In practice, any training a department might offer in the law is irrelevant. In practice, a plaintiff overcomes qualified immunity by proving that the law is so clear that every reasonable police officer is on notice. If you still think otherwise, you should be able to provide specific, contrary examples.

  16. lorn says

    A good number of police departments have taken to issuing recording equipment to continuously record officers. The effect has been largely good for both sides. Police have noticed that fewer people harass them and make nuisance claims when they know they are being recorded and people dealing with police noticed that the police were were more restrained, professional, and polite.

    Recordings are no panacea. Recording can be taken out of context and some things are best not allowed into the public record. ie: The first emotional account and personal information provided by crime victims.

    That said the vast majority of police interactions and activities would IMHO only benefit from more sunlight.

Leave a Reply