
Fifth Circuit holds that First Amendment protects the right to record the police [pdf] - oftenwrong
http://www.ca5.uscourts.gov/opinions/pub/16/16-10312-CV0.pdf
======
jMyles
...it's hard to imagine a more obvious and plain application of "freedom of
the press" in the information age than the right to record what one's eyes and
ears can see and hear and then publish the same, even if (especially if!) it
contains evidence of state misconduct.

I mean come on.

~~~
oxide
Will this deter police from retaliating against someone recording them with a
cell phone? I can't imagine it will. Police have a lot of options for
retaliation, after all.

Sure, it won't hold up in court if they take you to jail, but it could
possibly make your life hell for 24 hours at the very least.

You could lose your job being detained, for example. IIRC they can hold you
that long with no justification or reason required, but I'm not a laywer so
take that with a grain of salt.

Or weeks, if they really wanted to fuck with you. Just leaving a patrol car
around your house for awhile is pretty unsettling.

Maybe I'm overthinking this. I certainly don't want to get on the wrong side
of my local PD. I don't even want them to know my name, much less stop me
every time they see me or otherwise retaliate against me because I whipped out
a cell phone.

It's almost like a chilling effect, if I have that concept right. I might be
mixing that up with another term. Thinking of police retaliation makes me not
want to record the police at all, out of fear of retaliation.

~~~
e40
100% agree. They can and do make up shit all the time. A co-worker of mine was
arrested last weekend when a crime was committed at his house and they told
him to _leave the premises_. So, he crawled into the back seat of his car and
went to sleep (it was 1am Saturday morning and he had nowhere to go). A hour
or two later they arrested him _because they told him to leave_. He was in a
parked car on the street. They charged him with obstruction. They dropped the
charges 24 hours later.

~~~
djsumdog
>"Edward Anthony Anderson, January 15, 1996, shot while handcuffed and on the
ground. Frankie Arzuega, fifteen years old, January 12, 1996, shot in the back
of the head; the following Mother’s Day, his family received taunting phone
calls from anonymous sources: they dialed *69 (call back) and the police
answered. Anthony Baez, December 22, 1994, chocked to death for playing
football on the streets of New Your City. Rene Campos, whom police said
committed suicide in custody by stuffing more than half his T-shirt down his
own throat, reaching three-quarters of the way down to his lungs. Garland
Carter, seventeen years old, January 8, 1996, shot in the back by police who
earlier that day had driven by his home, making their fingers into the shape
of a gun and “firing.” Angel Castro, fifteen years old, October 23, 1996.
Having already moved out of a neighborhood because of death threats from the
police, Castro rode his bike back to the neighborhood to a friend’s birthday
party: He accidentally ran into a police cruiser, breaking his teeth, and as
he rose from the ground a cop shot him. Sherly Colon, April 25, 1997, pushed
off the roof of a housing project, after which police removed the cuffs which
had held her hands behind her back….The list is as long as you want to make
it..." –The Culture of Make Believe, Derrick Jensen

The Culture of Make Believe is a very difficult book to get through. The
author talks about hate crimes and power, and how we've developed these very
odd cultural norms around violence. It's pretty depressing.

~~~
hueving
While those are horrifying examples, I dislike this approach of cherry picking
and focusing on the worst cases. It can make a problem seem much worse than it
really is and make it difficult to tell what is the result of systemic
problems and what are individual bad actors.

It's akin to someone mentioning flying and then going into gruesome detail
about all of the terrible airline accidents over the years to suggest that
flying is unsafe.

~~~
hashkb
You're considerably more likely to be abused by police than be involved in an
aviation accident.

~~~
aisofteng
Aviation is by far the safest mode of transportation in the world, so that is
not surprising.

------
r00fus
What is frustrating is that the LEOs in the case had no clear standing for
detaining Turner. TX is not a Stop and Identify state [1] (neither is CA).

Amazing that the police can essentially ignore the laws they're sworn to
uphold when it conveniences them. That and "the left him [in the back of a
police car] to sweat for a while with the windows rolled up" method of
coercion boils my blood.

It's like the definition of prejudice - if they think you're a criminal
they'll treat you like shit.

[1]
[https://en.wikipedia.org/wiki/Stop_and_identify_statutes#Sta...](https://en.wikipedia.org/wiki/Stop_and_identify_statutes#States_with_.E2.80.9Cstop-
and-identify.E2.80.9D_statutes)

~~~
obstinate
That is why the judge reversed the determination of qualified immunity for the
two officers. :)

~~~
dmix
Seems like a high bar to pass to have law abiding citizens treated with
respect for the law.

Same with getting cops to not be so quick to pull the trigger and default to
respecting people's life.

This attitude of absolute power that some American police hold is as much a
cultural issue than one of legal semantics. It has to be confronted without
being blown off as an attack on police.

The best approach is probably taking a reasoned, most cops are good, approach
and focus in on the minority who flaunt the law.

The solution might be via policy (making it easier to fire cops) or training.
But thanks to the all powerful unions I'm sure this will be a big uphill
battle.

~~~
obstinate
It is far too high a bar. The police have always been very resistant to
actually allowing the freedom the Constitution promises. This is only the
latest example.

One could wish for the police to just be decent people, and one could wish for
a billion dollars. If wishes were horses ...

------
ImTalking
4th amendment is a farce anyway. Asset forfeiture is a direct violation of the
4th and yet has passed judicial constitutionality tests. Asset forfeiture was
never supposed to be used on US citizens since citizens can be prosecuted
under federal criminal/civil laws. It was put in-place to seize the assets of
non-US citizens who could not be persecuted under such laws, such as foreign
ships/etc. Bennis v. Michigan was one of the worst SCOTUS decisions.

~~~
djsumdog
I have not heard that about Asset forfeiture.

Asset forfeiture is pretty fucked up. At least with eminent domain, there may
sometimes be a good cause (building a rail/train/infrastructure that benefits
all), but usually not (building an on-ramp for a shopping centre).

If the people who got away with the 2008 financial crisis were actually
arrested, changed and convicted, it'd be interesting to see the government
auction off the rewards of their crime (their mansions, expensive cars, etc.)
As it stands now, ssset forfeiture seems to hurt the poorest and funnels money
into the increasing militaristic police force.

~~~
_archon_
I believe you are confusing eminent domain (forced sale of real estate) with
asset forfeiture (cops pull you over, find something to arrest you for, then
take all your stuff and never give it back to you regardless of whether you're
found guilty or not).

------
gregwebs
Quote from the ruling:

"We conclude that First Amendment principles, controlling authority, and
persuasive precedent demonstrate that a First Amendment right to record the
police does exist, subject only to reasonable time, place, and manner
restrictions."

However, note that they actually affirmed the lower court ruling that the
police were not liable for violating the first amendment in this case. This is
because it was not clear from the courts (before this ruling) that this right
existed. They did find that the police violated the fourth amendment by
arresting someone for recording a police station (and at the time there was no
presumption of a 1st amendment right).

~~~
afthonos
They did not affirm that the First Amendment was not violated; they
_explicitly_ ruled it had. What they affirmed was that it was not so obviously
violated that _every_ officer should have known it, and therefore the officers
were entitled to qualified immunity, i.e. immunity from being sued because
they did their jobs in a way that a reasonable officer _could_ think was
lawful.

~~~
spangry
Huh. I guess ignorance of the law _is_ an excuse.

~~~
afthonos
In the US, the law is a combination of the written letter of the law and the
interpretation courts have given to that letter via precedent. This extends to
the Constitution. If there aren't rulings about an issue close enough to the
one at hand, then the law is, in fact, unknowable.

In addition, qualified immunity applies to _civil suits_ , not criminal cases.
If a prosecutor had deemed the officers' behavior worth prosecuting as a
crime, qualified immunity would not help them (though I don't know if
something equivalent exists for criminal offenses).

To recap, qualified immunity gives government officials cover from _civil_
actions when the law is unknowable.

(Erm…disclaimer: IANAL)

------
whack
Relevant question: if you decide to record the police as a result of this
ruling, they tell you to stop, you refuse and continue recording them, and
they arrest you as a result... could you get into any legal trouble? Is it
safe to act upon this ruling, or should you just do what the police tell you
to do regardless?

~~~
AlexCoventry

      Is it safe to act upon this ruling, or should you just do what the police tell you to do regardless?
    

Do what they tell you. "You can beat the rap, but you can't beat the ride."

However, once you're out of immediate danger, talk to a lawyer. You would
probably have standing for a §1983 lawsuit.

~~~
jMyles
I think this is awful advice. The second you turn your camera off, you lose
your side of the story.

If you're seriously nervous and unsure about what to do, ask for a supervisor.
In my experience, they'll typically tell other offices to cool it with the
cameraphobia crap.

But never turn your camera off if you think you're a suspect. What good can it
possibly do?

~~~
morganvachon
There's a concept in law enforcement called a "lawful order", which is when a
police officer orders you to do something and if you don't comply, he can
arrest you for obstruction. The thing is, the order must truly be lawful; he
can't order you to do something illegal, and he can't order you to (for
example) take off your clothes or give him your money.

Typically a lawful order will be something like during a domestic dispute,
ordering one of the parties to find somewhere else to stay for the night and
not to return home for a certain number of hours (a "cooling off" period).
This avoids an arrest for domestic violence, which carries harsh repercussions
even if the aggressor is found not guilty, and gives both parties a chance to
work on their issues (as well as gives the victim time to leave safely if
necessary). Another example might be in a civil dispute, where one party
claims ownership of a 50 year old vehicle and the other party disputes this,
and there isn't enough documentation to support either party's claim. The
police are called, and the officer issues lawful orders to both parties to not
touch the vehicle until they've sorted it out in court. If one of the parties
tries to take possession of the vehicle later that day, they can be arrested
by that officer.

The problem with the camera issue and lawful orders is that some jurisdictions
have statutes prohibiting video and/or audio recording of the police or other
government workers, and this empowers the police to issue locally lawful
orders to stop recording. However, if this ruling carries any weight, the
Constitutional right to record will theoretically trump the local restriction,
rendering the order no longer lawful.

All of that said, even if the order is supposedly lawful, I agree that you
should keep recording and ask for a supervisor. In some jurisdictions you may
end up arrested for obstruction, but chances are the supervisor will realize
the implications of continued harassment of a lawfully recording citizen and
drop the issue.

~~~
wyldfire
> However, if this ruling carries any weight, the Constitutional right to
> record will theoretically trump the local restriction, rendering the order
> no longer lawful.

It certainly carries weight in the fifth district. If Grinalds/Dyess petition
SCOTUS they'll likely hear the case in order to make sure their decision makes
a consistent precedent wrt 1st amendment right to "videotape" the police.

~~~
schoen
Note 5th circuit, not district. (In the Federal court system, a circuit is
vastly larger than a district.)

------
DoofusOfDeath
FYI, I found the ruling is surprisingly readable and interesting.

If you have a few minutes, I suggest taking a look.

~~~
dankohn1
Thanks for the recommendation! I agree it was surprisingly readable. Most
important part starts on page 9.

------
revelation
Qualified immunity is one of these baby-boomer neighborhood patrol vestiges
with a subtle undertone of racism and xenophobia that will hopefully be
limited in due time as the vast abuses it enables today become more apparent.

The legal burden on the victim is just absurd, not least given how the
qualified immunity boomerangs further into the 4th amendment claims.

~~~
MichaelBurge
Is it a baby-boomer thing? I always thought it was Sovereign Immunity combined
with the police acting as agents of the state.

Sovereign Immunity always seemed overall a good idea to me, but its negatives
should be mitigated by making the government as small as possible in the first
place.

It doesn't seem like there'd be a need for a "right to petition the
government" if you removed Sovereign Immunity, since you could otherwise go
through the courts. So I don't think it's recent.

~~~
koltaggar
Baby boomers ruined everything else, might as well blame them for this too

------
nanch
The part you're looking for: "We conclude that First Amendment principles,
controlling authority, and persuasive precedent demonstrate that a First
Amendment right to record the police does exist, subject only to reasonable
time, place, and manner restrictions."

Starts at the middle of page 9.

------
anon345235
Unfortunately, rights may exist but police can still violate those rights with
immunity unless those rights are "clearly established". In this case, the
court ruled that sure, there is a First Amendment right to film police, but
that in this case "there was no clearly established First Amendment right to
record the police at the time of Turner’s activities." So, it was OK for the
officers to detain Turner.

They also said the police should have quickly investigated whatever crime they
suspected. Instead they cuffed Turner for "not providing ID" (which BTW is not
a crime in Texas) and placed him in a hot patrol car for "a while" without
actually investigating any crime, which the court found to be an unreasonable
arrest.

The court also has a section named "Whether the Right Is Clearly Established
Henceforth" which is the interesting part. Sadly, in that section they only
affirm that the right to film exists, heavily quoting other court rulings that
_already_ ruled the right exists. There doesn't seem to be anything new in
this ruling that would cause another court to say the right to film is now
"clearly established". The threshold is not whether some court says the the
right is "clearly established starting right now!". The actual threshold is
that " _every_ reasonable official would understand that what he is doing
violates [the law]." I suspect it's still going to take a Supreme Court ruling
and years of police training before plantiffs can really prove their rights
are "clearly established" using that criteria.

------
maj0rhn
I don't think this case was at all about the legality of recording the police,
as the headline proclaims. The defendant was never charged with illegally
recording the police, or with anything at all.

The conclusion, in fact, gives the police officers qualified immunity from the
plaintiff's claim of First and Fourth Amendment violations. The "further
proceedings" on the Fourth Amendment claim is what was found for the
plaintiff, but I didn't read the whole opinion to know what that means.

It's scary that some of the comments in this thread are from people who would
read an opinion like this -- or read the HN headline -- and take it to heart
in terms of their own actions. That's just dumb. Look at all the precedents
that are cited in the opinion -- it's not a simple case, and, indeed, there
were dissents from the majority opinion.

Be careful out there.

~~~
oftenwrong
That's the headline because that is the most significant part of the opinion
due to the precedent it sets. It establishes, for the Fifth Circuit, the right
to record the police. Previously, as stated in the opinion, this right was not
clearly established.

------
itchyjunk
I see a lot of good argument for being able to record an officer on duty. But
I am not familiar with the against arguments. One i hear is "privacy of the
officer" but it does not make a lot of sense in this context. What are they
doing on duty that needs to be a secret?

So my question is, what made them think that it was not okay to be recorded or
what are strong arguments that are still valid? What situation would you say
is an exception where people should not record the cops? would it get in the
way of investigation sometimes maybe?

Tangentially, what do you think about drones that record stuff? I saw a few
videos on you tube where drones were following cops around. Should there be a
distinction between cell phone recording and drone recording? Could the
officer claim they are being harassed? Thanks.

------
wallace_f
Is anybody capable of putting this into plain English, or ideally, link an
authoritative source which does that? For us with no time on our hands.

Particular queries: 1 - Does this apply nationally? Where and where doesn't it
apply (user @aerovistae & others asked and remains unsettled, debated in
comments here) 2 - Does this apply to both video and audio recording? 3 - Are
there limits where and when I can record? (public vs private spaces?) 4 - What
should one do if police forcibly interfere with your right to record and
retain information?

------
chrisweekly
Good news. Curious what you all think about the concept of mandated self-
recording _by_ the police. IMHO the (all-too-often realized) potential for
abuse of power might reasonably be balanced by such impositions on the privacy
or autonomy of those we entrust to enforce and uphold the rule of law. Good
cops would have a measure of extra protection from false accusations, and bad
cops would have a harder time abusing the power they've been granted.

------
chmaynard
This seems like an empty decision with no real consequences for any of the
parties. The court looks good because they came to the correct conclusion. The
local police can laugh and continue to violate our constitutional rights with
impunity. The plaintiff gets the satisfaction of a favorable ruling, but
receives no compensation or even an apology. Our justice system remains
corrupt and contented. Move along, there's nothing to see here.

------
ImTalking
Huh? This is still an issue? Well, glad that we finally have a decision after
129 years since George Eastman.

~~~
gozur88
It's an issue ( _still_ , even after this ruling) because different courts
have held different things. Eventually we're going to see a SCOTUS ruling, and
hopefully it goes the same way.

~~~
djsumdog
Has another Federal court offered a different ruling?

~~~
gozur88
_Fields v. City of Philadelphia_ :

"We have not found, and the experienced counsel have not cited, any case in
the Supreme Court or this Circuit finding citizens have a First Amendment
right to record police conduct without any stated purpose of being critical of
the government. Absent any authority from the Supreme Court or our Court of
Appeals, we decline to create a new First Amendment right for citizens to
photograph officers when they have no expressive purpose such as challenging
police actions."

------
nanch
New law being written right before our eyes. But the title of the post isn't
actually what was found in this case...

This PDF is worth reading over a couple times for full understanding. The
topic is extremely relevant to each of our lives and thus quite tangible and
easy to reason about.

The person in this case had to have a federal judgement made _against_ him
(the officers were granted qualified immunity [typical]) and THEN he had to
appeal the case to obtain this judgement. A lot of work! (And I'm glad he saw
it through!)

"The officers’ handcuffing Turner and placing him in the patrol car, as
alleged in the amended complaint, were not reasonable under the circumstances.
We conclude that a reasonable person in Turner’s position would have
understood the officers’ actions 'to constitute a restraint on [Turner’s]
freedom of movement of the degree which the law associates with formal
arrest.'" Kudos to the judges for their sound judgement.

"Grinalds and Dyess are therefore not entitled to qualified immunity at this
stage of the litigation on Turner’s Fourth Amendment claim that the officers
violated his right to be free from warrantless arrest absent probable cause."
Epic.

"Even if Turner had sufficiently alleged a constitutional violation, Driver
acted objectively reasonably in light of the circumstances—namely, by
apprising himself of the situation and acting accordingly. Driver is therefore
entitled to qualified immunity on Turner’s Fourth Amendment claims." Fair and
reasonable judgement.

The dissent is interesting and worth-reading. I agree regarding the First
Ammendment findings, but I disagree with the arguments against the majority's
Fourth Ammendment judgement.

For some understanding of how the Federal Judicial System works, it's worth
watching this video
[https://www.youtube.com/watch?v=i_mbk0YhLa0](https://www.youtube.com/watch?v=i_mbk0YhLa0).

The law that protects citizens from oppression from officers (as in this case)
is United States Code: 42 U.S. Code § 1983 - Civil action for deprivation of
rights. It's a short text and you can read it here:
[https://www.law.cornell.edu/uscode/text/42/1983](https://www.law.cornell.edu/uscode/text/42/1983)
(Read it a few times over again to get a good idea of what is stated)

In this case, the Court of Appeals for the 5th District ruled on this. You can
see a map of the federal districts here:
[https://en.wikipedia.org/wiki/United_States_courts_of_appeal...](https://en.wikipedia.org/wiki/United_States_courts_of_appeals)

~~~
schoen
Note 5th Circuit, not district.

~~~
nanch
Good point out, too late for me to edit the typo. Thank you!

It should read:

>> In this case, the Court of Appeals for the 5th _Circuit_ ruled on this. You
can see a map of the federal _circuits_ here:
[https://en.wikipedia.org/wiki/United_States_courts_of_appeal...](https://en.wikipedia.org/wiki/United_States_courts_of_appeals)

------
OliverJones
Here's a web story on the subject. The videographer, Turner, is a
correspondent for an org called "Photography is not a Crime."

For what it's worth, in the bodycam video shown in this story, Mr. Turner
appears to be African-American, and the officers appear to be Euro-American.
That fact of race is, unfortunately, relevant in 21st century Texas.

[http://photographyisnotacrime.com/2015/09/02/texas-
officers-...](http://photographyisnotacrime.com/2015/09/02/texas-officers-
arrest-man-for-recording-outside-police-department-ban-him-from-setting-foot-
on-police-public-property/)

------
coding123
I'm all for recording. Have a front facing and rear facing dash cam in my car.
I want something like Google glass, not as a computer, but as a full time
recording device.

------
greggman
So when can we start recording at the border? Or will we have to wait until we
all have eye implants for that nonsense to stop?

------
known
Never argue with Police; Call a Lawyer;

------
aerovistae
So does this apply nationally?

~~~
djsumdog
Fifth Circuit is a Federal District Court. IANAL, but I think the only thing
higher would be the Supreme Court, right?

~~~
int_19h
The text of the ruling seems to imply that the Fifth is not the first circuit
to reach this conclusion.

"We agree with every circuit that has ruled on this question: Each has
concluded that the First Amendment protects the right to record the police."

This has a footnote to it:

"See Alvarez, 679 F.3d at 595–96; Glik, 655 F.3d at 82, 85; Smith, 212 F.3d at
1333; see also Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995)."

Are there any lawyers here willing to decipher this for us?

~~~
schoen
Not a lawyer, but I work with some.

Each of these (except the last) is an abbreviated citation to a published
court opinion cited earlier in the decision.

Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 595–602 (7th Cir. 2012)

Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.), cert. denied, 531
U.S. 978 (2000)

F.3d is an abbreviation for Federal Reporter, 3rd series (the current series
of the Federal Reporter, which publishes Federal appeals court decisions ).

When you see a citation like x F.3d y, it means "Federal Reporter, 3rd series,
volume x, page y". The form "x F.3d at z" means "volume x, page z, but that's
the middle of a decision, not its start" (called a "pin cite"). The form "x.
F.3d y, z" is another way of saying "the decision starts at page y of volume
x, but here we are specifically referring to page z".

The part in parentheses indicates which particular court wrote the decision (a
particular numbered circuit court of appeals) and in what year.

[https://en.wikipedia.org/wiki/Federal_Reporter](https://en.wikipedia.org/wiki/Federal_Reporter)

[https://en.wikipedia.org/wiki/United_States_courts_of_appeal...](https://en.wikipedia.org/wiki/United_States_courts_of_appeals)

You can often look up the texts of these decisions online in various places,
although I don't see a convenient up-to-date free F.3d online anywhere.
Originally the concept was going to a library, which would have huge long
series of reporters (books that publish court decisions), and you could tell
the librarian "I'd like volume 655 of the Federal Reporter 3rd series,
please", and then turn to page 85 to see what the First Circuit said on the
page in question of its Glik decision.

District court decisions (from the trial level) are cited in the same way but
with "F.Supp." (a different reporter); Supreme Court decisions are also cited
in the same way but the reporter is "U.S." and the court doesn't have to be
mentioned in parentheses, because the Supreme Court is the only court whose
decisions are published by United States Reports.

So you might see

Foo v. Bar, x F.Supp. y (D.Somewhere yyyy) ← district court

Foo v. Bar, x F.3d y (nth Cir. yyyy) ← circuit court of appeal

Foo v. Bar, x U.S. y (yyyy) ← Supreme Court

and each one could also cite to a specific page or range of pages within the
opinion by using "at z" or "y, z".

------
ultrahate
What a shame that I'm excited that my country still supports my rights as a
citizen to some degree.

I'm disappointingly satisfied. Our rights are inalienable and self-evidently
truthful. How can someone or some court thereafter determine what rights I
have?

~~~
MichaelBurge
> Our rights are inalienable and self-evidently truthful. How can someone or
> some court thereafter determine what rights I have?

I would probably define a right as "A persuasion technique for convincing
others to decide disputes in your favor". Then, your rights can be weakened
simply by having people not be persuaded by them; and removed legally by
having the highest court not be persuaded by them.

If somebody asks something like, "Do monkeys have rights?", keep in mind that
nothing about the universe changes depending on that answer. No computers will
blink their lights on in response to a sensor picking up a right when it scans
you. So rights don't exist.

Why do people pretend that rights exist, even though they don't? Game-
theoretically, collectively pretending that we have a natural-born right to
free speech independent from the government reduces the risk that a King will
rise up and cause trouble while suppressing the press. Anyone questioning his
policies can appeal to the right in their arguments.

So we choose to allow ourselves to admit an "appeal to a right" in arguments,
because we want others to be convinced as well. So "Why do people not respect
my rights?" seems ill-framed, but "Why do people not understand the
consequences of allowing a right to be asserted?" is. And there would be no
such thing as a "self-evidently truthful" right, only a right where the
consequences of allowing it to be asserted in an argument are clearly
beneficial.

~~~
spangry
This reminds me of a great (and prescient) bit by George Carlin -
[https://www.youtube.com/watch?v=m9-R8T1SuG4](https://www.youtube.com/watch?v=m9-R8T1SuG4)

~~~
icebraining
Not prescient. Better informed, perhaps.

------
more_corn
Again

