06/11/2012

Ken WallentineLaw Enforcement and the Law
with Ken Wallentine

Courts side with ACLU on videotaping police

Court rules that police cannot stop audio-video recording of officers on duty

The ACLU announced plans to launch an audio-video taping project, targeting Cook County (greater Chicago area) Illinois police officers performing their duties. Illinois is a two-party consent state, meaning that all parties to a conversation must consent to audio recording. Thus, unless the officers consented, audio-video recording would constitute an illegal wiretap. The ACLU launched a pre-emptive lawsuit against the Cook County prosecuting attorney, asking the court to block enforcement of the wiretap law in such circumstances.

A federal district judge ruled against the ACLU on legal standing grounds prior to trial. The Court of Appeals for the Seventh Circuit reversed, ordering that the ACLU was entitled to a preliminary injunction and a full trial. The appellate court held that the statute unconstitutionally restricts free speech.

By suggesting that there is a First Amendment right to video record police officers in the course of their duties, the Seventh Circuit joins a small number of courts around the nation that have ruled in favor of citizens suing police after officers interrupted video (or audio-video) recording.1

Infamous Incident
One of the most public video-recording cases involved Anthony Graber, a motorcyclist who used a helmet camera to film a plainclothes trooper after being stopped for speeding. Graber had been showing off, weaving in and out of traffic on his motorcycle at a high rate of speed, and videotaping his antics. After being stopped and cited, Graber posted the video, which shows the officer approaching him with his gun drawn, to YouTube.

The video quickly went viral.

A few weeks later, a state’s attorney in Maryland charged Graber, a staff sergeant in the Maryland Air National Guard and a computer systems engineer, with violating the state’s wiretapping laws. Noted Judge Emory Plitt, a former prosecutor and popular lecturer on law enforcement legal issues, dismissed the charges.

Judge Plitt observed: “Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.”

Additional Examples
A few other trial courts have ruled that there is a general free speech right to videotape police officers. In Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D. Pa. 2005), the court ruled that there is a free speech right to film police officers in the performance of their public duties. Robinson claimed to be concerned about the way police were conducting truck inspections on a local road, so he decided to document their behavior by filming them from an adjacent property. Robinson videotaped from a position approximately 20 to 30 feet from the highway and never physically interfered with police activities. The police told him to knock it off and, when he refused, they arrested him for harassment.

Robinson was convicted of harassment, but the conviction was overturned on appeal, and Robinson filed a § 1983 action against the troopers. The judge found that no officer could reasonably believe that Robinson was violating the Pennsylvania harassment law. The court ruled against the troopers and took the rare step of awarding punitive damages against the individual officers in addition to general compensatory damages.

Prior to the ACLU’s suit in Chicago, a few federal appellate courts explored the parameters of the First Amendment free speech rights colliding with the privacy rights of victims, witnesses, and officers. In Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), the court recognized “a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph police conduct.” The problem with the Smith case is that the court provided very few facts and little analysis, so we don’t know the precise contours of the right that the court may have recognized.

In Gilles v. Davis, 427 F.3d 197, 203 (3rd Cir. 2005), the court suggested in dicta (meaning that the statement is not necessarily binding law) that “videotaping or photographing the police in the performance of their duties on public property may be a protected activity.” The appellate court also noted that “generally, photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection.”

One decision carefully weighing the state of the law and noting the competing public and private interests comes from the Third Circuit Court of Appeals in Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010). Kelly was a passenger in a truck stopped for a bumper height violation. When the officer saw Kelly videotaping the contact, he arrested Kelly for a wiretap law violation.

Those charges were later dropped.

Kelly sued.

The court granted qualified immunity to the officer with this instructive explanation:

We conclude there was insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment. Although Smith and Robinson announce a broad right to videotape police, other cases suggest a narrower right. [Other court decisions] imply that videotaping without an expressive purpose may not be protected, and in the Whiteland Woods case we denied a right to videotape a public meeting. Thus, the cases addressing the right of access to information and the right of free expression do not provide a clear rule regarding First Amendment rights to obtain information by videotaping under the circumstances presented here.

Our decision on the First Amendment question is further supported by the fact that none of the precedents upon which Kelly relies involved traffic stops, which the Supreme Court has recognized as inherently dangerous situations. . . . For these reasons, we hold that the right to videotape police officers during traffic stops was not clearly established and the officer was entitled to qualified immunity on Kelly’s First Amendment claim.

First Amendment Protection
A short time before the Seventh Circuit considered the ACLU lawsuit, the First Circuit denied qualified immunity to Boston Police officers after they arrested a man for recording an arrest with his cell phone. In Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), the court held that video recording an arrest in a public place constituted an exercise of clearly established First Amendment right. Prosecutors ultimately dismissed the wiretapping charges filed against the man. The court allowed the lawsuit alleging a Fourth Amendment violation of wrongful arrest and a First Amendment violation to proceed in the trial court.

In the Illinois ACLU case, the Seventh Circuit court held: “Audio recording is entitled to First Amendment protection.”

Although the Illinois law does not prohibit non-consensual video recording, the court opined that audio recording is entitled to constitutional protection. According to the 2-1 split decision, a ban on audio-video recording of government officials suppresses speech just as effectively as restricting the dissemination of the recording itself. The court also held that the officers’ privacy rights are outweighed by the public interest.

The prosecuting attorney argued that allowing the ACLU to audio-video record victim or witness interaction with the police would hinder cooperation in investigations. The court disagreed, noting that such encounters are generally in private places and not where bystanders can hear. That puts the burden on police officers to take extra care to protect the privacy and confidentiality of witnesses and victims. The court did not order that the ACLU be restricted from attempting to capture such interviews.

The lone dissenting judge asked, “Suppose a police detective meets an informant in a park and they sit down on a park bench to talk. A crime reporter sidles up, sits down next to them, takes out his iPhone, and turns on the recorder. The detective and the informant move to the next park bench to continue their conversation in private. The reporter follows them. Is this what the Constitution privileges?”

For now, the answer seems to be that the Constitution allows just that, sometimes putting officers in a very difficult position. Watch for further appeals, perhaps to the entire court of appeals or to the Supreme Court. This issue is obviously not unique to Illinois. As other courts have addressed audio-video recording seemingly barred by state wiretap statutes, thus far, the box score favors audio-video recording as a First Amendment-protected activity. The U.S. Department of Justice has supported the ACLU position in a lawsuit filed in Baltimore2

In this age, it seems to be common sense for an officer to assume that every move is being recorded. These cases sound a cautionary note for any officer who is being openly recorded. No doubt, some recording activities pose a clear threat to officer and/or public safety because the videographer is actually interfering or the recording threatens sensitive police tactics or identities.

One such case involved a film crew broadcasting tactical officers as they crept toward the location of a barricaded suspect (who only needed to turn on the television to know where to shoot). Officers should interrupt the recording in those cases and seek prosecution advice regarding potential criminal charges. In most circumstances, however, the best advice may be to “smile” because you’re on Candid Camera, like it or not.


1 American Civil Liberties Union of Illinois v. Alvarez, --- F.3d ----, 2012 WL 1592618 (7th Cir. 2012).
2 Sharp v. Baltimore City Police Dep’t, D. Md., No. 1:11-cv-02888, filed Oct 11, 2011 

About the author

Ken Wallentine is Vice President and Senior Legal Advisor of Lexipol LLC (www.Lexipol.com), the nation’s leading provider of risk management policies and resources for public safety agencies. He is a retired chief and former prosecutor with over three decades of public service.

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