
Eighth Circuit: Citizens do not have a right to film public officials in public - Aloha
http://krcgtv.com/news/local/eighth-circuit-citizens-do-not-have-a-right-to-film-public-officials-in-public
======
Dowwie
To clarify, the 8th circuit includes:

\- Arkansas

\- Iowa

\- Minnesota

\- Missouri

\- Nebraska

\- North Dakota

\- South Dakota

South Dakota legislators recently exercised a _State of Emergency_ to overrule
an anti-corruption bill voted in by its constituents:
[http://www.salon.com/2017/01/25/south-dakota-republicans-
sta...](http://www.salon.com/2017/01/25/south-dakota-republicans-state-of-
emergency-is-a-brazen-political-coup-against-anti-corruption-law/)

~~~
saimiam
These states are also among the most conservative when it comes to gun rights
in defense of freedom against a tyrannical government. Upside-down world we
live in.

~~~
protomyth
It should be pointed out the judges are federal appointments and not local
people.

~~~
dragonwriter
District and Circuit Court judges are very often local people and historically
the appointments are strongly influenced by the Senators in the area served
(particularly, but not exclusively, when they share a party with the
President.)

------
matthewmacleod
This headline is literally a lie. No such statement was made by the court.

How does this sort of thing happen? It's insanely dangerous when media
channels just fabricate news that did not happen. You can see the effects here
– the number of comments that are along the lines of "isn't the fascist
police-state USA awful" is surprising. The statement in the headline is not
even supported by the content of the article, let alone the judgement itself.

~~~
ptero
This is often the case, especially with a hot-button topic. I suspect this
might be the case here as well -- I have not read the judgement yet. However,
to have an informative discussion, can you provide a TL; DR summary.

The main question I personally have is if can I still film anything and
everyone on public property or has this been curtailed in some way shape or
form.

~~~
Brendinooo
I scanned through the dockets a bit; scroll down to see my post.

As far as I see it, the author of the article leads you to believe that
'public' means 'any public space' when in fact the court was ruling about
filming in 'public proceedings', which is completely different.

~~~
ptero
IANAL, so if someone decides to hold public proceedings in a public place, can
I still film this (because it is a public place) or not (because
terrorism/policy/precedent/whatever)?

~~~
Brendinooo
Take a look at one of the older dockets on the case and decide for yourself
what they're saying:

[https://docs.justia.com/cases/federal/district-
courts/missou...](https://docs.justia.com/cases/federal/district-
courts/missouri/mowdce/2:2015cv04096/121651/117)

Page 14, sections 4, 5, 6, and 7 are the incidents relevant to filming.

With respect to section 5, Akins filmed in the lobby, was asked to stop, and
the person who asked him to stop was told that he was in the wrong for saying
so. Section 6, he wasn't allowed into a media event because there wasn't a ton
of space and he didn't have credentials. Section 7, he was posting video to
the PD's and the city's Facebook pages and they removed the videos.

These are discussed on page 34, last paragraph. Seems like Akins is more
interested in retaliation charges, and that's what the court is addressing
here. The "he has no constitutional right to videotape any public proceedings
he wishes to" seems a bit out of place as I re-read it, but I guess it's just
establishing a baseline? I'm not sure what specifically the statement is meant
to respond to.

The only thing that seems like public proceeding is the media event, and so in
that context the judge is saying that I can't just bust in with a smartphone
and say I have a constitutional right to record the event.

~~~
ptero
Thank you for the info!

------
acjohnson55
Reading this gives me chills. Just one more step of many towards living in a
police state. I feel like the particular sort of freedom I was raised to enjoy
in the 80s and 90s is slipping away.

And as a black person, it really feels like the obvious abuses of police power
continue unabated. There's finally a parade of evidence showing just how
egregiously the cops treat us, and that door is at risk of closing, if the
SCOTUS affirms this over the other circuit's opinion.

~~~
DarkKomunalec
As cynical as I am, I still expect the supreme court to take up this case, and
issue a 9:0 ruling in favour of filming officials. SCOTUS has a strong free-
speech track record: [https://www.popehat.com/2017/06/21/free-speech-
triumphant-or...](https://www.popehat.com/2017/06/21/free-speech-triumphant-
or-free-speech-in-retreat/)

------
bjpbakker
> Judge Nanette Laughrey ruled that [..] any citizen or the press, has no
> right to record the activities of public officials on public property

Weird how governments do watch their citizens in public all the time, waving
any privacy concerns with arguments of "public safety" or "national security".
While at the same time they prosecute whoever is filming them at work.

~~~
mabub24
To piggyback off the quote you pulled, can anyone explain how she came to that
legal ruling? It seems incredibly out of sync with the popular perception of
American rights and freedoms. Is there something I'm missing?

~~~
mosheroperandi
This appears to be the underlying decision on the motion to dismiss / summary
judgement that was upheld by the 8th Circuit:
[https://scholar.google.com/scholar_case?case=169732989067196...](https://scholar.google.com/scholar_case?case=16973298906719659917)

Again, I don't see any discussion about right-to-record. It's mostly a long
list of why you can't sue prosecutors.

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c0nfused
Most of the time when you see a headline like this it's worth reading the
actual judgement. They are publically available.

[http://media.ca8.uscourts.gov/opndir/17/07/163555P.pdf](http://media.ca8.uscourts.gov/opndir/17/07/163555P.pdf)

~~~
mseebach
This seems to be mostly concerned with the rules for when someone should be
recused? There seems to be no discussion of the right to record anyone
anywhere, presumably that was covered in the previous, appealed/upheld
judgement? Do you have a link to that?

~~~
c0nfused
This is the judgement in question. It has no bearing on free speech and should
not be presented as doing so by anyone.

If you can find a different case involving Akins on July 25th you are welcome
to link to it instead. [http://media.ca8.uscourts.gov/cgi-
bin/opnByMM.pl?theMM=07&th...](http://media.ca8.uscourts.gov/cgi-
bin/opnByMM.pl?theMM=07&theYY=2017&A1=Get+Opinions)

------
akerro
I was told not to expect privacy in public places, because CCTVs are
everywhere, can CCTV record public officials?

~~~
Paul_S
You can film people all you want, I imagine the important thing is that it is
inadmissible in court.

------
westmeal
Does this mean you cannot record a police officer during a traffic stop but he
can record you?

~~~
curun1r
It's probably going to depend on the Supreme Court now, since other circuit
courts have issued opposing decisions. Here's one from the last time I
remember it being discussed on HN:
[https://news.ycombinator.com/item?id=13672482](https://news.ycombinator.com/item?id=13672482)

IANAL, but one interesting consequence of this ruling might be that it will
embolden police since they can point to it as evidence that the right to film
police is not clearly established and, even if the Supreme Court rules it's
unconstitutional for police to prevent filming, the officers are still
deserving of qualified immunity when preventing that constitutional right.

------
nppalawyer
The 8th Circuit ruled on the case but not on the right to record police in
public. On 8/2/16 the lower federal court only found that the plaintiff "has
no constitutional right to videotape any public proceedings he wishes to." She
also cited a 2004 8th Circuit case holding that “Neither the public nor the
media has a First Amendment right to videotape, photograph, or make audio
recordings of government proceedings that are by law open to the public." This
is far different from the right to record outside in a traditionally public
forum (street or park) and only applies to the jurisdiction of the federal
trial court not the full 8th Circuit. Akins is now seeking an en banc review
or motion for rehearing of the 7/25/27 8th Circuit ruling which basically
dealt with affirming the lower court's decision to grant summary judgment to
the defendants and also affirming the denial by the trial court judge of the
motion for her to recuse herself from the case. The First, Third, Fifth,
Seventh, Ninth and Eleventh Circuits have all ruled that the right to record
police officers performing their official duties in a public palace is clearly
established which will negate a claim of qualified immunity by police.

------
wfunction
I'm wondering if this is more like "citizens do not have this right" rather
than like "citizens do not, and should not, have this right".

There is obviously nothing in the Constitution about recording public
officials, and I assume there isn't a statute against it, so that means it's
relying entirely on case precedent, right? Which I understand is still law, so
I'm as baffled by the ruling as anybody, but I also feel that if I were taking
this case on for the first time, I would find myself ruling that citizens
don't have this right -- even though I would desperately hope and agree they
very much _should_. Does anyone feel that if there was no case precedent, they
would still believe they had this right due to freedom of "speech" (or
something else)? What would be your legal justification?

------
madez
I wonder why you would need a right to do a certain thing. In a non-opressive
country everything is allowed, unless forbidden. So one doesn't need a right,
it just doesn't need to be forbidden. This little change in perspective means
a lot.

------
Brendinooo
> In a free speech ruling that contradicts six other federal circuit courts,
> the Eighth Circuit Court of Appeals has upheld a district court ruling that
> says Americans do not have a first amendment right to videotape the police,
> or any public official, in public.

Worth noting that this circuit is the outlier, if the assertion is indeed
accurate.

But where is the "district court ruling that says Americans do not have a
first amendment right to videotape the police, or any public official, in
public"?

I scanned over the 8th Circuit's opinion, which mostly talks about why the
recusal denial was okay in their opinion:

[http://media.ca8.uscourts.gov/opndir/17/07/163555P.pdf](http://media.ca8.uscourts.gov/opndir/17/07/163555P.pdf)

As well as dockets relevant to the case:

[https://dockets.justia.com/docket/missouri/mowdce/2:2015cv04...](https://dockets.justia.com/docket/missouri/mowdce/2:2015cv04096/121651)

But I haven't seen anything relevant to the claim in the lede.

EDIT:

Looks like this has some of the language mentioned, starting on page 32. In
particular, the last paragraph of page 34:

[https://docs.justia.com/cases/federal/district-
courts/missou...](https://docs.justia.com/cases/federal/district-
courts/missouri/mowdce/2:2015cv04096/121651/117)

> Further, he has no constitutional right to videotape any public proceedings
> he wishes to. See Rice v. Kempker...

[http://caselaw.findlaw.com/us-8th-
circuit/1380406.html](http://caselaw.findlaw.com/us-8th-circuit/1380406.html)

That's Rice v. Kempker. Part that the Akins ruling quotes:

> Because we hold that neither the public nor the media has a First Amendment
> right to videotape, photograph, or make audio recordings of government
> proceedings that are by law open to the public...

So, I'm not a lawyer or a judge, but it seems like the specific claim that the
lede latched onto is much more narrow in scope. If a proceeding is public, it
doesn't guarantee that anyone is allowed to come in and videotape it. I can't
go to the Supreme Court and argue that I have a First Amendment right to take
video in there.

Am I missing something? If I'm interpreting this correctly, this news article
is outrageously inaccurate.

Here's another take on the story: much more nuanced and in line with what I've
been reading in the dockets.

[http://www.abc17news.com/news/top-stories/attorney-asks-
fede...](http://www.abc17news.com/news/top-stories/attorney-asks-federal-
court-for-rehearing-in-columbia-police-filming-suit/602091246)

------
lowpro
Direct link to the ruling: [http://law.justia.com/cases/federal/appellate-
courts/ca8/16-...](http://law.justia.com/cases/federal/appellate-
courts/ca8/16-3555/16-3555-2017-07-25.html)

They don't link to it in the article. This should be the link, it has a
summary of the ruling with it.

------
mschuster91
Welcome to the police state, USA.

Here in Germany it's legal to film police officers but they sometimes arrest
you, beat you, damage or search your phone for it. (Source: witnessed all four
kinds of events at demonstrations)

~~~
madez
Courts in Germany do not generally agree that you can record somebody and use
that that recording in court, because of "Recht am eigenen Bild".

Even if a burglar enters your house, you may photograph him, but you cannot
use that photo in court. You need to have a sign at the entry telling that you
are doing video recordings on your property. Source: police information event.

Still, if you question authority, you need to be prepared. In this case I
would recommend immediate upload of the material, so taking or damaging the
phone wouldn't help them.

~~~
thriftwy
I can see how it has a point for public places (e.g. bars). But this makes
negative sense for your house. What's "at the entry" in case of burglar
anyway? Door? Now they just have to claim they entered via window and did not
see the sign. How is that any good?

Any restrictions on how citizens protect their property in court should be
gravely discouraged. This is just plain taking rights from citizens to award
them to feudals (of which police is a member)

~~~
madez
According to police, all normal entries would need that warning. A windows is
not a normal entry point. It is even enough to have a barricade tape around
your land. What is important is that there is a visible border that indicates
that crossing is not wanted.

~~~
thriftwy
Land is one thing and home is another thing. It's obvious that you should have
some kind of fence before ever accusing anybody of trespassing. But burglary
inside an apartment is another thing entirely isn't it?

~~~
madez
Sure, I wasn't talking about the legality of burglary, but the legality of
video record others on your ground, or house for that matter.

If your house has a door, unallowed entry is automatically
"Hausfriedensberuch" unless under some limited circumstances. Still, you need
a sign beside the door if you want to video record burglars and use that
recording in court.

I think it's stupid, but that's the way it is, apparently.

~~~
thriftwy
> I think it's stupid, but that's the way it is

I hope it's not their line when Last Judgement comes.

------
code4tee
Troubling ruling but very unlikely this survives further appeals.

------
provost
> Akins also alleged that the defendants violated his rights by removing
> videos he had posted on the CPD Facebook page, by ordering him to stop
> filming the filing of a citizen complaint in the CPD lobby, and by posting
> in the police department a flyer with information about him.

While I support the right to film public officials in public (which Akins did
sometimes), it seems he takes his actions too far, to the annoyance of
officers.

Perhaps the judge focused on these specific instances behavior, rather than a
typical event of filming an arrest?

~~~
bjourne
It is not about Matthew Akins, but about the ruling of the court and the
argumentation it used to arrive at that ruling. US law is based on precedents,
so in future similar cases, the court must take into account the argumentation
used and apply it to them. Therefore each verdict could potentially mean that
new law is created.

In this case, that could mean that a new law has been created that prevents
citizens from filming the police. Unless the case reaches the Supreme Court
and they make a contradictory ruling that is. But IANAL and I'm happy to be
corrected.

~~~
joatmon-snoo
> Therefore each verdict could potentially mean that new law is created.

Not potentially - each new verdict _is_ law. All lower courts are bound by law
to follow the precedent established by higher courts; in other words, this now
applies to all public-camera-bla-bla-bla cases in the 8th circuit.

There is clear and established precedent for how courts can issue rulings that
affect _only_ a single case. Evidently that's not the case here.

Disclaimer, IANAL.

~~~
bjourne
Interesting. That appears to be a difference between common law and civil law.
For example, here there is a legal uncertainty what the law says regarding
snow-covered speed signs. Some people have been ticketed for not following
speed limits they reasonably could not have seen without stopping the car and
wiping the speed sign clean. Others have been acquitted in almost identical
situations. Each court makes a new and independent reading of the law and
isn't as affected by what other courts have found. The upside is that new laws
aren't created by courts, the downside that legal uncertainties can remain
forever.

------
em3rgent0rdr
can someone provide a more serious analysis of this instead of a local news
website. I like things I can share with my facebook friends.

------
thinkfurther
Camcorder Truth Jihad vs. Cricket Chirping Competition. Sad.

~~~
thinkfurther
This story had 3 points after 2 hours and no comments, which I didn't expect
to change. I wanted to leave more than an upvote for the submitter, but didn't
have anything worthwhile to say, not being an American and knowing little
about the related laws. I know that's not a substantive comment, or too meta
and too rash, but still, "heh".

