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Fifth Circuit holds that First Amendment protects the right to record the police [pdf] (uscourts.gov)
670 points by oftenwrong on Feb 17, 2017 | hide | past | web | favorite | 189 comments



...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.


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.


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.


>"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.


Sounds very similar to some of the most chilling stories from South Africa during Apartheid: political prisoners whose corpses were photographed and clearly beaten to a pulp with the official cause of death listed as, "fell against chair."


O please the old story of the big bad apartheid regime.

For a bit more perspective: During the difficult transition period 1990 - 1994, security forces (police) caused 518 deaths[1]. Compare that with 2013 US police caused 930 - 1240 deaths and South African police caused 409 deaths[2]. Keep in mind that during this transitional period there was basically a civil war of sorts going on, with 14000 political murders between ANC and other freedom factions during this time (1990 - 1994).

And even today under a free and democratic government it is reported that police behavior is a least just as bad as under apartheid[3]. Currently the police death rate, taking into account population differences is twice as bad as the USA police death rate and four times as bad as during the worst years of police brutality during apartheid.

Fact is South Africa is a deeply divided country and single sentence statements such as the one of the parent poster does no justice to the complexities that is the continually worsening South African situation.

[1]https://www.censorbugbear.org/genocide/how-many-people-died-...

[2]http://mg.co.za/article/2015-06-10-fdf

[3]http://www.aljazeera.com/programmes/africainvestigates/2015/...


1) The US has six times the population of South Africa.

2) A police officer killing someone, is not necessarily murder. You're going to have to break out how many of those are acts of self-defense, because it's a non-trivial number (likely the majority are in fact self-defense). [1] Some of America's inner cities are wildly violent, with murder rates on par with the worst areas of Latin America (ie some of the worst areas on earth for murder). Try policing a perpetual war zone that has been raging for 40 years.

[1] http://www.newsweek.com/how-many-americans-do-cops-kill-each...


From your comment I'm not sure if you are agreeing or disagreeing with me, but:

1)The US has six times the population of South Africa.

Absolutely, thats why I said South Africa currently has about twice the police killings rate the US has. So the math is: South Africa police killings = 409 to be comparable on a per capita basis with the US rate of between 900 - 1200 divide by 6 = 150 to 200 death per year if the US had the same population as South Africa, which is a rate your linked article also supports. Compare that with the apartheid rate of 518 deaths over 4 years, so about 130 deaths per year. (But ok I have not taken 20 years of population growth into account).

2) A police officer killing someone, is not necessarily murder. You're going to have to break out how many of those are acts of self-defense,

Absolutely, but that is a very difficult thing to do, especially only armed with google. Furthermore police statistics these days in South Africa is renowned to be of especially poor quality, so I have to work with what I have.

2) Some of America's inner cities are wildly violent, with murder rates on par with the worst areas of Latin America (ie some of the worst areas on earth for murder). Try policing a perpetual war zone that has been raging for 40 years.

Your joking right. South Africa has an average murder rate of 34 / 100 000 [1], seven times worse than the USA. And if you want to compare the worst with the worst (Detroit), compare it with our farm murder rate of around 300 / 100 000 [2] which is actually worse than most war zones.

So in summary, police killings during the worst years of apartheid was less than or at least on par with police killings in the US currently and police killings in current day South Africa is about twice as bad as both.

>>Try policing a perpetual war zone that has been raging for 40 years.

Yup...South Africa :D

[1] https://africacheck.org/factsheets/factsheet-south-africas-2...

[2] https://en.wikipedia.org/wiki/South_African_farm_attacks


So your point here is that systematic racism isn't so bad because when the whites ruled the blacks the statistics were better? I.e. you're saying white people are objectively superior?


No that's not my point at all, that's called setting up a straw man argument..., please don't do that.

My point being, I disagreed that in your very first point you mentioned that police killings were a very common occurrence during apartheid ("some of the most chilling stories from South Africa during Apartheid"), and I argued that it was less common than current day USA and much less common than current day South Africa.

Now there is one very interesting conclusion that you might have missed from my point, and that is that in terms of police killings, either currently the USA is as bad as apartheid South Africa was, or that apartheid South Africa wasn't as bad as you remember.


I didn't say anything about how common police killings were in Apartheid. If you could please also not engage in logical fallacies.

I bring up Apartheid because they were notorious for covering up some truly horrific things that police did and the modus operandi was suppressing opposition. When I see similarities in the kind of things they try to pass off to explain deaths in custody, I think that connection needs to be made.

What I take issue with is your dismissal of my negative remark about "big, bad Apartheid." Yeah, Apartheid was bad.


Apartheid was bad, absolutely. But then according to the stats, it was better than current day USA (which was perhaps the connection you wanted to make?) and much better than current day South Africa (at least insofar as police killings are concerned).


Jesus, what a rant because I used the word Apartheid. Yes, I got screwed over by later presidents too, but it doesn't make me afraid to condemn the system that existed before. Get over whatever issues you need to resolve. You say "big bad apartheid regime" like you could take a look at https://en.wikipedia.org/wiki/Afrikaner_Weerstandsbeweging and tell me it's all just a big misunderstanding.


Whats your point? You linked to an extremist movement who had marginal support and had no affiliation with the government that existed during apartheid and that somehow proves what exactly? I mean I could link back to KKK or alt-right movements and that somehow vilifies the current USA governments (past and current) just because these groups exists?

Truth be told, I've got no beef with you or an axe to grind on the subject, I just try to provide some perspective to the situation.

For interests sake, do you have a link to the story about suspects getting murdered and then the police report indicating the suspect "fell against a chair". That's certainly the first I've heard about it. There certainly were some atrocities committed by both sides (whites and blacks or goverment and ANC), so I am not denying it is possible. For a good account if you want, there is an excellent book written by the police commissioner Johan van der Merwe: Trou tot die dood toe. I am not sure if it is available in english, and you might question the integrity / truthfulness of the book, but in my opinion it gives a fairly even account of the events of that time from the perspective of the police commissioner, and the commissioner himself is highly regarded, even by Nelson Mandela so that counts for something...


See my other comment for the rest, but the "fell against chair" case was documented in Donald Woods' book. It wasn't Biko specifically (though I believe his official explanation was "hunger strike", which was even bigger bullshit), but I believe it was more or less a contemporary of his.


Thank you I know about Steve Biko, will have look at some time at Wood's book.


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.


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


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


I disagree. The question isn't if this is representative, the problem is this happens at all.


Expecting no problems is absurd. Zero is very different from small, in terms of possibility and cost.

The real issue is, how did the system react to this? How does it self-correct? This is where so much of government falls down as they close ranks around themselves, identifying with the role they have first instead of identifying with their fellow citizens.

This is a natural way to be (tribal), but it is also extremely problematic.


Bringing examples like so is important for correction.


Wow. That's pretty bad.

I have a similar story of inept police and injustice:

I have an uncle who is a real piece of work. A druggie who my great-grandparents adopted, raised and supported until they both died.

One night he was at my great-grandparents house, harrassing them for money and threatening them. My poor great-grandfather, a 71 year old man at the time, called 911. The operator heard my uncle scream something about killing my grand-grandmother. I guess he was coming off of drugs.

By the time the local sheriff's office responded to the call, my uncle Tim was long gone. The only male present was my 71 year old great-grandfather, so the two deputies incompetently assumed he was the perpetrator.

They didn't even let him put on shoes.

They manhandled my poor grandfather. They took him to jail and he slept on the floor of a cell. He was extremely injured, my mother was furious and encouraged him to press charges. But he was a stubborn old man who spent most of his life as a fire-and-brimstone pastor of a church, in other words he was too polite to take them to court.

The pictures of his injuries are burned into my brain. Massive scrapes, his thin skin peeled back. Bruises all over his face and body. The idea of him sleeping on the floor of a cell...absolutely sickening.

He died a few years later, stomach cancer. He was a great man. I miss him.

p.s. I also have a story of that same department doing me great justice, so keep in mind that it was the two assholes who responded, not the entire sheriff's office that was to blame.

Some of those deputies were good people who saved my ass a few times, let me off the hook a few times, etc. I will say that I'm glad to have moved, though.


From an outsiders perspective it seems that a lot of the problems originate from the amount of training required to wear the uniform.


Yes, this will deter police from retaliating. Rulings like this in other circuits already have. Will it stop it completely? Of course not.

No, they cannot (lawfully) hold you for 24 hours with no reason.

Quick lesson (note: everything I say below is about what is legal, not what might happen -- people (including cops) can do illegal things after all):

Reasonable Articulable Suspicion (RAS) -- A set of specific facts that would cause a reasonable person to believe a crime has been, is being, or is about to be committed. You may be detained if a cop has RAS on you. But RAS is a pretty low bar.

If a cop has RAS and is detaining you, he's trying to get Probable Cause (PC) to arrest you. Talking will likely help him get it. I suggest you use your right to remain silent.

If a cop has PC, you can be arrested. In that case, you might spend the weekend in jail before having an opportunity to get bail, or they might just release you.

If you have been unlawfully detained or arrested, you can sue. It won't be easy to win, but you can sue. In many cases, police officers have what is called Qualified Immunity (QI). This means they literally cannot be sued.

But now, in the Fifth Circuit, it's a clearly established right to record. This means that the officers would lose QI and could be sued for their actions.


Thank you for clarifying some of the mysticism behind all of this. I had no idea QI even existed.


As the saying goes, you can beat the rap but not the ride.

Though I think this is a little tangential to the recording issue. It's just the more universal problem of police misconduct. Hopefully, body cams and little brother recording of police can change this.


This isn't fantasy. Police retaliated against Ramsey Orta for recording the murder of Eric Garner

http://www.theroot.com/nyc-man-who-recorded-eric-garner-s-ch...


While I'm sure it happens, is there any indication this happens on a large enough scale to actually worry about it? Seems like they'd just get more bad press when you record them harassing you because you recorded them the first time.


First of all, this kind of thing happening on any scale is something to worry about.

Second, considering that we know there are instances of it, we're faced with a question. Which is more likely?

1. The officer(s) in question suddenly and for no discernible reason completely snapped and committed actions they knew were immoral and illegal and which they had been trained and conditioned by the culture of their department never to do under any circumstances, or

2. The officer(s) in question were trained and worked their entire careers in a culture in which abuse of authority was routine, accepted and unquestioned, to such a degree that they felt it was the natural course of things and that no significant consequences would fall on them.

Time and again, investigation of corrupt and abusive police departments has turned up evidence for case (2) and not for case (1). We should be assuming case (2) unless and until we see significant evidence otherwise.


What makes you think the police care about bad press?


When it gets them fired. And if it especially makes them hard to hire again somewhere else.


Cops in the US regularly shoot unarmed civilians and get off with desk duty.

The idea that a cop will lose his job for harassing someone is wishful thinking.


That's why they do it, because they don't get fired.

They'll start caring a lot more when they lose their jobs and suffer penalties, and it's not hard for it to happen when they do that.


Cops have tough jobs, the vast majority of police officers mean well and are good people trying to serve their community. I think people in threads like this forget that. But like any group of people there are assholes, we need to have a zero tolerance policy for police officers that violate rights. And for egregious situations we need to hold them even more accountable. Police aren't the law but an agent and servant of it.


That's the complaint I've heard any reasonable person make: the culture of covering up for the disgusting actions of the bad apples implicates far more than the bad actors themselves. It may be beyond any individual cop to change the way the system works, but the culpability doesn't stop at the bad actors themselves.


I can't remember who pointed it out, but someone said that everyone is missing the point when they talk of bad police being a 'few bad apples' and the rest are fine. The full phrase is 'A few bad apples spoil the whole barrel'.


Correct. In addition, someone covering up for a bad apple is, well, a bad apple.


How exactly can a cop in a different precinct/city/state be held responsible for "covering up" bad actors in an unrelated department?


> How exactly can a cop in a different precinct/city/state be held responsible for "covering up" bad actors in an unrelated department?

I truly do not understand how you took this away from reading my comment. I even went out of my way to say that it's more complicated than individual honest cops being to blame. You may want to work on your reading comprehension.


>the culture of covering up for the disgusting actions of the bad apples

This implies to me like you think this culture is prevalent in most police departments. Yet you base this of the events a tiny minority of police departments.

>You may want to work on your reading comprehension.

Try to keep insults off of HN. If I misunderstood you, you should take that as a reflection of your own communication skills and clarify in another comment. Don't just waste everyone's time by just expressing your state of bewilderment.


>Cops have tough jobs, the vast majority of police officers mean well and are good people trying to serve their community

Depends on the department. My local precinct is across from the subway and parks nearly 100% of their vehicles on the sidewalk. It's on both sides of the street and so bad two people can't pass at the same time.

They've actually even spray painted ranks onto the street, which have now almost faded since they've been doing it for so long. The sidewalk is crumbling under the weight of the cars. At town halls they shrug when asked about it.

Despite being a high density area complete with multiple subway lines and a low crime rate, they do all patrols by car. No foot patrols whatsoever.

Meanwhile other NYPD precincts have different behavior.

A representative streetview link:

https://goo.gl/maps/e2FRX9K56GE2

Keep in mind this is an older streetview image; the parking lot on 50th Avenue next to the precinct no longer exists. There are also usually more police vehicles, though most of them shown in this streetview link are the personal vehicles of officers or the security shop (they are friendly with the police and don't get ticketed or perhaps the cops feel bad about parking this way and writing tickets for others on the same block - either way, no tickets)


Here is NYPD literally painting their own parking spots onto a bike lane:

https://mobile.twitter.com/jooltman/status/65433607376670720...

You might also enjoy

https://mobile.twitter.com/placardabuse


I just think it's incredible that the norm has become so skewed that suggesting that the consequences for beating or killing someone be losing your job are seen as unrealistic.


Short answer: unions. In general public worker unions is a bad idea and police union is even worse. Union with guns is a very dangerous force and it is able to push the police agenda through local governments.


Unions aren't dysfunctional everywhere. The problems you have with them has more to do with your work culture than with the idea of employees cooperating to protect their rights.


That is not why they do it. They do it because they are crazy, scared, stupid, malicious, or just using bad judgement. If anything, they became cops so they can lawfully use force against people but that's probably the minority of cops not the majority.


I really doubt thats true. Got any numbers?

I'd bet it happens very infrequently, and is very newsworthy when it happens. Still not remotely ok though…


Perhaps the fact that they're human?

I interface with my local police at least once a month, not for recalcitrant reasons; they are good people.

Is this an anecdote? Yes.

Do I like seeing police as a whole cast as evil? No.


Every group will have bad apples, it's statistically inevitable. What matters is how bad apples are dealt with. Because if they are not dealt with properly, 'the bad apple spoils the bunch'.

In police / court land, bad apple pruning isn't good enough. On top of that the stakes are high and their are legal malincentives that encourage the government to do the wrong things. It's harder to do bad apple pruning with police because of the risk category and their job responsibilities.


I didn't mean to paint with a wide brush, so to speak.

I know police as a whole are not evil. I've been let off the hook by police quite a few times, had an officer give me a ride home when I was stranded after walking several miles as a teenager, etc.

Police retaliation happens, though. Corruption exists, etc. It's not a huge stretch to imagine local police retaliating against someone who whips out a cell phone.

Even if the courts won't convict that person of a crime, police can very much exact revenge just by paying more attention to you than they might have otherwise.

Stopping you without cause, searching you without cause, detaining you without reason. There are plenty of ways I could imagine retaliating against a citizen if I was corrupted/otherwise morally compromised, empowered as a police officer, and had a grudge.

tl;dr: I'm not casting all cops as evil, I'm stupid, but not that stupid.

I'm only speculating that this court decision might not stop an officer with a grudge from retaliating against a civilian.

It's perfectly logical, and wasn't intended as a generalization against police. I'm not a cop-hater.


Because a cop was nice to you once doesn't mean he isn't a bad apple. Just means he was nice to you once.


Please do not put words in my mouth. I did not claim that all (or even any) police are evil or inhuman.

I do not think "How will this look in the paper?" calculates into whether or not an officer issues me a ticket for speeding or lets me go with a warning or attempts to search my car. I don't think it is considered at any point by individual officers, including during the use of force.

I think the decision is based more on behavior such as if I am evasive or cooperative. I am far more likely to get a warning if I am polite rather than argumentative.


Perfectly reasonable, normal, "good"-looking people can become very bad very quickly. Just because they act decent, polite, etc for 99% of their day, doesn't mean that they're not capable of behaving differently.

This is the nature of criminals, as well. They're fine for the most part, until they break a law. The real problem is that we're allowing a parallel "judicial system" to exist in the first place. One that selectively applies certain rules to certain groups, which is in this case, the police.


Police officers have a lot of discretion and I'm not sure that a camera is always the best way to get preferential treatment within that discretion. It may be legal but in addition to the courts recognizing it as acceptable officers need to do the same. A court decision will not change the perception of recording among officers but hopefully as more people exercise their rights it will become commonplace and not stigmatized by the police.


FYI "preferential" generally has I more specific meaning than how you're using it here, or I am misunderstanding. It seems like you're using it as a synonym for "better". (I upvoted you btw)


You may be right, what specific meaning is that? I mean that there are many possible outcomes of something like a traffic stop and shoving a camera in the officer's face is probably not the best way to get a warning.


Ah. The top on Google for me is "of or involving preference or partiality; constituting a favor or privilege." Nobody would say the cop would be more likely to favor you if you filmed them; rather something more like the cop would be less likely to do something illegal if you filmed them.


I think we are talking past each other. My google result says the same thing, it also lists "better" and "privileged" as synonyms.

I used the term preferential treatment to mean that in some cases the police may let a person go with just a warning but if that person has a camera they may come down on the person harder. In the case where the person believes the police will not act favorably to the individual or even illegally then filming would be in the person's favor. In that case filming would result in what I would call preferable treatment because it's still not "better" than treatment someone else would receive.

Privilege is a huge component in deciding if filming the police would actually be favorable to an individual. When I say preferential I am referring to the treatment certain groups receive from the police in general relative to other demographics.


That shouldn't be the bar. You should have a right to not be recorded in certain circumstances. Like how it is generally illegal to record phone calls without notifying everyone that a recording will be made. You may hear with your ears the content of the phone call but that doesn't mean you should be able to record it secretly.

As for what you can see, there are definitely some protected circumstances you should not be able to record. Imagine sitting outside an abortion or AIDS clinic and then posting online videos of everyone who visits these places. Sure you can see from a public street who accesses these services but should you be able to advertise a person's health concerns to the general public? No.


While there are cases where privacy rights should kick in (your example of private phone calls is a good one), I cannot imagine how an on-duty and in uniform officer doing something in public (where there is no reasonable expectation of privacy) should expect to not be recorded. That officer is armed and dangerous. In some circumstances, is legally allowed to use deadly force against citizens. Abuse of that power has happened to frequently to claim that the officer needs privacy to carry out their public service.


I agree you should be allowed to record anything a police officer does in the line of duty. I'm all for going one step further and requiring all uniformed police officers to wear bodycams at all times. But we just shouldn't set the bar at "if I can see it or hear it I can record it".


I agree with you two above, but think the unmodified recording should not be for the public to see. To avoid pitchforks. Below is why I agree that bodycams are the real solution instead of citizens with cams.

Imagine someone records police violence and posts it online. Only they cut off the first half where the suspect did not comply and was aggressive.

Now there's an angry Internet mob which crowdsources the address, phone and a lot more, just from the recording of the police officer's face.

Sadly, in our time and age, it's the first one to report that has the patent to "truth".


So who should have access to the recordings? And who should be able to publish them? If the first to report gets to make the truth, shouldn't that imply the cops should publish everything preemptively?


That is a good point. But that brings a bunch of its own problems.

E. g. your significant other sees you somewhere you should have not been.

I honestly don't have the answer. Hopefully, the police can keep them stashed for when they're needed.

I'd like to get the media outlets and public more educated. To get the story confirmed or denied (by the police).

Maybe a few "police cameras (again) prove wrong accusations" with wide coverage would go a long way to discourage fabricated stories.

Now about the access and publishing. That one is the hardest to get right considering presumption of innocence and privacy.

The only idea for now "here is the recording, faces blurred. If it's not enough, we'll gladly see you in court. What? No court? We didn't think so either." Hopefully I can come up with a better one.


"angry Internet mobs" are an important reason for making such recordings public in the first place. And if it's not the public making and publishing the videos, what's to stop whoever it actually is from making the same kinds of edits?


That is why any clip should obtain a hash on the device. Or that pulling the relevant data would checksum them by the device.

I'm almost asleep, but there probably is some sort of solution that would prove the authenticity of the recording.


> Like how it is generally illegal to record phone calls without notifying everyone that a recording will be made. You may hear with your ears the content of the phone call but that doesn't mean you should be able to record it secretly.

It actually depends on what state you live in. Search for "one-party vs two-party consent states".

Only 11 states (including California) require both parties in a conversation to consent. Federal law and the remaining majority of states do not.

See: http://www.aapsonline.org/judicial/telephone.htm


"Imagine sitting outside an abortion or AIDS clinic and then posting online videos of everyone who visits these places."

Are there laws against that? I always assumed the crazy loons that sit out there all day were already doing it.


There are a ton of laws about what you can or cannot record and what you are allowed to do with your recordings. Some activities you do have a protected right to privacy like healthcare access.


Like how it is generally illegal to record phone calls without notifying everyone that a recording will be made.

Actually, that's not true.

Federal law only requires "one-party consent" - that is, it's legal to record a phone call as long as one person on the call knows it's being recorded.

Only 12 states have laws requiring that everyone on the call must know it's being recorded.

https://en.wikipedia.org/wiki/Telephone_recording_laws#Unite...


> 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

So there is no more "off the record"? No moral argument against "revenge porn" or broadcasting what you see in the changing rooms at the gym? Privacy is completely torn away - if someone can see it in any setting, it become fodder for the public?

Yes, you should be able to record police conduct in public, just like anything else, but the way you framed your argument is dangerous.


>one's eyes and ears can see

the police will shine flashlights into your eyes/camera. problem solved from their end.


What are your thoughts on classified information?


I tend to think that, conceptually, it is incompatible with information technology, and that information technology will eventually render it (and, for that matter, the state) inoperative.

But even if you don't agree here, we're talking about events in public, involving public servants, recorded by people who are in no way bound by any sort of state secret framework. This is a million miles from the line.


Such as what?


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...


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


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.


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 ...


I don't understand this focus on the unions. as far as I can tell the entire* justice system acts as if this kind of extra-legal violence and coercion is necessary to keep the peace. cops, judges, prosecutors, elected officials, correctional facilities are all in on it.

it seems like it would be more useful to bring it out in the open and discuss whats correct rather than pretending everyone has certain rights and simultaneously building institutions which systematically violate them.


Only partially. The decision ruled that the officers were entitled to qualified immunity on the first amendment claim because, while the first amendment does protect his right to film, that wasn't clearly established at the time of the incident. It was only the fourth amendment claim for which the court ruled the officers don't deserve qualified immunity.

Had they only hassled him and made him stop recording, they'd be getting off without a punishment. It was only because they arrested him (and it was only ruled that they arrested him because they didn't act with enough urgency to figure out what to do with him once they'd handcuffed him and put him in the pack of the police car) that they're being denied qualified immunity.


> that wasn't clearly established at the time of the incident.

Silver lining: it is now (in the jurisdiction of the fifth circuit).


>Amazing that the police can essentially ignore the laws they're sworn to uphold when it conveniences them.

Except that they can't, it seems.


One case where they're caught, where hundreds of times where their interpretation of the law is not questioned.

I suppose it's a start, but I doubt this decision will result in operational changes directly.


Nothing sufficient to deter an officer happened. The taxpayers pay a cursory fine and the department adds some training, when their training probably already outlined acceptable conditions to arrest someone.

Only when officers are personally imprisoned will they have any second thoughts about doing this kind of thing again.


Prejudice is defined as

>preconceived opinion that is not based on reason or actual experience.

Being a criminal is a choice. Treating someone differently because they you have sound reason to believe they are a criminal is not prejudice.


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.


Of all the things wrong in the US, drugs, surveillance, healthcare, I don't think anything is worse than asset forfeiture.

Zero due process and assumption of innocence. Pretty core values being ignored. Not to mention the perverse incentives it gives law enforcement who often get to keep the money and spend it themselves. At the very least it should be put in a neutral state fund.


Just to be more precise, _civil_ asset forfeiture is the abomination.

Asset forfeiture is a general term which also covers seizure of assets produced by a crime after there has been a conviction. For example, seizing Bernie Madoff's remaining money after he got convicted of fraud.

It's a bit pedantic but I've seen a lot of people confuse numbers between the two. Obviously CAF is horrible, but I've seen a lot of numbers out of context about billions of dollars being seized which are blatantly false, because of this mixup.


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.


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).


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).


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.


Huh. I guess ignorance of the law is an excuse.


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)


But isn't the practical effect of this that police officers can continue violating the FA rights of people in this way and then shrugging behind qualified immunity?


No, because they have firmly established that right by this very ruling.

"Although the right was not clearly established at the time of Turner’s activities, whether such a right exists and is protected by the First Amendment presents a separate and distinct question. Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. 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. "


Thanks for the correction: I am completely changing my comment to avoid confusing others.


Not exactly. They do say 1st amendment protects right to record (with limitations) but they say the 4th is what matters here.


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?


> should you just do what the police tell you to do regardless?

I am not a lawyer, but I think it's pretty obvious that there are some things that the police might tell you to do that you are well advised not to do if you think you are a suspect.

Examples include: performing sexual favors, selling drugs, and giving them money directly (whether directly or pretextually as some sort of fund-raiser).

I think that recording the police fits in this category. It is obviously completely legal and works to your distinct advantage.

I have plenty of videos of police telling me to turn my camera off. I have never done so. And I have never had any further flack raised over it.

Think of it this way: if they are telling you to turn your camera off (a pretty brazenly thuggish and illegal thing to do), then how do you think they're going to behave once you do?

85% of police appreciate being recorded. Ask your cop friends. It helps them too.

If you are actually seriously in doubt about what to do, buy yourself some time by asking for a supervisor. In my experience (which is ample), a supervisor will not want to be seen one camera telling you to turn your camera off and will want the internal political advantage that comes from footage being recorded of the officers under her command.

But never turn your camera off if you think you are a suspect. Never.


> I think that recording the police fits in this category. It is obviously completely legal and works to your distinct advantage.

This is true, but be prepared to deal with an angry-acting man with a gun and the presumed right to put you in jail and take your stuff (via civil asset forfeiture). Most cops are decent, overworked public servants, but they're also trained to exhibit "cop rage" when they feel a lack of control.


To be clear, do you mean police are as a matter of course explicitly trained to react with verbal and physical abuse as a tool of law enforcement, or that a tendency to escalate is a byproduct of their training?

These seem very, very different to me, and in particular, if you assert it's the former, I'd appreciate evidence of that.


A tendency to escalate is probably a byproduct. For the rest, search for "verbal control." Most people aren't used to friendliness or anger applied tactically, so doing so can be effective for officers.


Install an insta-streaming app that will live copy your video to either your own server or a service if it can get Internet. Test it.

You should always film. They might get angry, and that's usually a sign you shouldn't stop filming. Having something that auto-transmits/saves your video might be the only thing that will help you later should they destroy your recording device.

You might end up in jail, with harsh charges, but at least you have evidence you can present to a lawyer ... well that is if you can afford one.


But which scenario is more likely to foment such an encounter? The one where the officer thinks he's being recorded? Or the one where he doesn't?


Pointing a camera at an officer is likely to cause him to become aggressive. I've had this happen when there was no danger to anyone involved, and no one was doing anything wrong, and it was intimidating as hell.

In such a situation, you have to ask yourself: Do you know your precise rights? Are you willing to spend some time locked up and take your chances dealing with the law? Sadly, it's often up to the civilian to "de-escalate" the situation.


> Pointing a camera at an officer is likely to cause him to become aggressive.

Across dozens of encounters over the course of a decade, this has not been my experience whatsoever. I think that it also does not match the experience of the legal observer community ("green hats") who have filmed (or benefited from the filming of) thousands of police encounters in every major city in the USA over the past 20 years.

Instead, it has been my experience that turning on a camera causes a far more pacific and professional approach to emerge from officers and also empowers officers in a supervisory position to keep better control over their subordinates.


Interesting. I haven't had nearly as many encounters, but in my limited experience, pointing a camera at an officer is perceived as adversarial/hostile and increases tension. Sometimes it evidently leads to this:

    https://arstechnica.com/tech-policy/2017/02/cop-filmed-telling-motorist-he-wanted-to-beat-him-sic-dog-on-him/
Having a third party legal observer point the camera seems less likely to lead to escalation.


  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.


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?


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.


> 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.


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


If you have a record of a government official ordering you under the color of law to turn it off, you have all the story you need.


You really don't, and if they want to take it away by force record that.


That's even more reason to no stop filming ...


How often are you in confrontational encounters with the police?


These days? Rarely.

But I have had a number of positions which have required me to have encounters (in some cases documented) with police, and although I was (I believe in every single case) professional and courteous, I have occasionally interacted with police officers who weren't.

Additionally, I have (like pretty much everybody) had chance encounters with police, and I have chosen to record these, without exception.

Here's a rather strange example (note that in this video an officer does incorrectly assert that my video recording him is against the law - when I calmly correct him and move on, he doesn't say another word about it):

https://vimeo.com/2230232


> Here's a rather strange example (note that in this video an officer does incorrectly assert that my video recording him is against the law - when I calmly correct him and move on, he doesn't say another word about it):

> https://vimeo.com/2230232

I gave you the benefit of the doubt, but after watching the video, I wanted to let you know that you definitely do sound like a smart aleck when talking to officers (e.g. "well, we both know that in the real world there is such a thing"... or, "well, fundamentally, I...")... maybe you weren't "disrespectful" in your choice of words, but I can't say the same about your tone and approach. It seems like you're willing to give officers as hard a time as possible just because it's not outright illegal. Don't expect a nice reaction when you do that. They had quite a bit of patience with you and you saturated it.


> They had quite a bit of patience with you and you saturated it.

I can't imagine what you're talking about.

I didn't want to be there in the first place. If they were running out of patience, all they needed to do was end the encounter.

I explained very clearly - left absolutely no doubt - that I was not going to provide identification. I don't know how much more clearly it can be stated. The officer was plainly playing dumb over the matter of what type of identification he expected, and yes, in the real world, we know that he meant a government-issued ID, almost surely a driver's license.

He was plain-out wrong in his approach, and frankly I think mine was pretty spot on.


>> They had quite a bit of patience with you and you saturated it.

> I can't imagine what you're talking about.

You don't need to imagine. I explained it very clearly in the rest of the paragraph: You sounded like a smart aleck lecturing them the entire time. Maybe you didn't read it?


> Maybe you didn't read it?

I see - these are just simple ad hominems. Got it.

So, to be clearer: I meant that I can't imagine what "patience" you are talking about. There was no test or saturation of patience; all these people needed to do was walk away. Simple. They weren't a captive audience, patiently waiting for something to happen. They were doing the wrong thing and obviously uncomfortable with themselves over it.


>> Maybe you didn't read it?

> I see - these are just simple ad hominems. Got it.

Ad hominem? I'm observing that you're still not reading this, because otherwise it means you're totally ignoring it:

>> You sounded like a smart aleck lecturing them the entire time

You just keep bashing their behavior, whereas I'm talking about yours.

Are you denying that you sound like a smart aleck, or what?


> Are you denying that you sound like a smart aleck, or what?

Yes. I'm doing just that.

I was a bit nervous; maybe my conduct wasn't perfect. But I was not a "smart aleck" or in any sense demeaning to these people. I'm proud of how I handled myself.


Have you tried asking a few non-STEM folks (whom you don't already know) what they think of your attitude in the video? To me your attitude was very much the condescending "well, ACTUALLY, you're wrong because..." or "well, TECHNICALLY, I'm right because..." attitude that a lot of us nerds have at some point in our lives (been there). People who are successful learn how to convey the same thing without that attitude. It seems like you're just not realizing it and you're stubbornly refusing to believe others when they tell you you have attitude, despite the fact that it's hard for people to tell when they're acting like jerks. For your own sake, ask a few random people whom you don't know, and no, the people commenting on your video (including me) do not form an unbiased sample.


> "well, ACTUALLY, you're wrong because..." or "well, TECHNICALLY, I'm right because..."

Can you point to a timestamp in the video during which I said either of these things (or adopted the attitude which you say they represent)?

Yes, of course many thousands of people have seen this video. For years, I spoke to people about it all the time. It has been shown at several conferences. I have received feedback of many stripes from many people in many contexts. And, as you can see, there are detractors even on the comments page who make similarly dubious critiques to the one you're making; we've heard it before.

I surmise that, had these police officers happened to have different occupations and they had stopped and detained me as haphazardly and chaotically as they did, your critique might adjust.

I was direct, clear, and professional. The only fly in the ointment came from the apparent unwillingness to hear the simple, direct, clear statement that I was not going to show identification. There is no reason for me to have to say this over and over again to adults whose job it is to listen and perceive the language of civic dialogue. Yet I did, and I did so with precisely the tone and attitude that I think is reasonable in a civilized public square (again, give-or-take my nervousness, which contributed a few awkward laughs and such, but did not veer toward "smart alecky.")


> Can you point to a timestamp in the video during which I said either of these things (or adopted the attitude which you say they represent)?

5:35 is one example:

> You: Just, in theory, there's a "government-issued ID", which you're presuming that I'm carrying, but you don't know whether or not I'm carrying one...

> Officer: I didn't ask for any kind of government-issue ID.

> You: But, of course, in the real world, we both know that there is such a thing that most people carry.

There's so much attitude here, which I'm guessing you don't realize:

1. You start off by lecturing him as if you're teaching him math... like as if he'd said "x^2 = 4 implies x = 2" and now you're saying "In theory, there's an x, which you're presuming is positive. You don't know if x = 2, so you can't just assume that!" That's not the attitude or tone you use on a stranger, let alone on a police officer. You could've much more politely asked, "But officer, what if I wasn't carrying one? Since that's legal, could we just proceed that way?" or something like that. Something that gets the point across without giving him a lecture. (And I'm sure there's better ways to phrase it too; this is just what I thought of on the spot right now.)

2. Despite the above, the officer went along with your attitude and pointed out an obvious mistake in your logic. The logical response at this point would've been to give him the benefit of the doubt and apologize for alleging the wrong thing, or (if heaven forbid you apologize) just ask what other kind of IDs he'd have found acceptable. Who knows, maybe he'd have been fine with a gym ID that only had your name and photo on it, and you might've been fine with that, since you already basically gave them both anyway? Or if nothing else, you'd have at least learned something too, and you'd have also shown him that you're a willing to learn from your mistakes and that you actually respect him. What did you do instead? You just gave him a sassy response. That was totally unnecessary.

And there was at least another obvious instance much later in the video but I don't have the time to listen to it and find it again right now... though the above is clear enough that I shouldn't need to.

Finally, notice the fact that you didn't even wait for me to tell you the timestamp before you wrote your disparaging comments. If you don't even know what I'm talking about, shouldn't you figure that out first before moving on? You're so eager to talk back to people that you do it before you even know what they're talking about. That's not good...


There was no logical flaw or even a logical debate.

The officer was asking for ID and being obtuse about the matter of which form of ID 99.9% show in such a situation.

For all this person knows, I have zero forms of ID.

And it's completely irrelevant - by the time this exchange occurred, he had already - three times - ignored my direct, clear statement that I was not showing ID.

> That's not the attitude or tone you use on a stranger, let alone on a police officer.

These two categories are not mutually exclusive: these people were complete strangers to me, and their occupation has no bearing on the matter. They weren't doing their jobs, which is to enforce the law. They were doing something completely superfluous and unlawful, for 75+ person-minutes of taxpayer time.

I'm not sure if I am going to be able to change your mind. You don't seem open to it.

But let me ask you: if a complete stranger detains and attempts to intimate you in just the manner as occurred to me that night, exactly what tone do you think is appropriate? Do you think it's wrong to point out the absurdity of not only presuming that you have ID but demanding to see it?


I totally disagree. I'm a law and order type of libertarian and I was ready to see jMyles being obnoxious in the video based upon your comment, but he wasn't at all.

That police officer was totally out of line. I'm surprised jMyles was as calm and polite as he was in the video. I would have just kept repeating "Am I being detained?" over and over until they either let me go or until they took me in.

Those officers were being total tools.


The funny thing is, even if I were to agree with you on the police officers, it would still be besides the point. I'm saying jMyles was saturating their patience by being an annoying smart aleck, and you're arguing back by saying the police officers were... tools? As if somehow that contradicts what I said?

jMyles could've been way more respectful in his tone than he was (and no, that need not have included showing his ID). His word choice was fine, yes, but his attitude and tone wasn't. You don't need to lecture police with a smart aleck attitude in order to assert your rights. Could he have been more rude? Of course. Could the officers have treated him more nicely? Sure. Does either of them contradict the fact that was showing an attitude and thereby ticking them off? No.


No, my observation that the officers were tools is vitally dependent upon the fact that jMyles did and said nothing wrong. Nothing at all. The only way that you could think that he was saturating the patience of that officer is if you conceded that said officer has a total right to use his authority to detain jMyles and to demand things from jMyles that he had absolutely no legal right to demand. If you think that officers should be bullies above the law, then sure, the victim of the bully can always be viewed as saturating the bully's patience in some way.

jMyles was not a "smart aleck" in any sense of the phrase that I know. He said nothing flip or rude to the officers. It seems like you're mistaking his attempt to be precise in his language as instead being a "smart aleck". Maybe you expected him to just roll over and show his ID while telling the officer where he was coming from and where he was going to?

In my opinion jMyles went out of his way over and over to express his respect for the officers and sympathy for their position. I thought that his behavior was practically fawning except for the fact that he was sticking to his right to not be forced to provide ID or to divulge what he was doing, where he was coming from, or where he was going to.


You are basically saying that he is guilty of Contempt of Cop and therefore officers "giving him a hard time" (i.e. illegal harassment, arbitrarily detention etc) is normal and to be expected. You are part of the problem here.


> You are basically saying that he is guilty of Contempt of Cop and therefore officers "giving him a hard time" (i.e. illegal harassment, arbitrarily detention etc) is normal and to be expected. You are part of the problem here.

That's not what I was saying... but I'm not going to waste my time responding to strawman arguments. Be my guest and keep exercising your right to be a jerk to everyone around you.


That's amazing. Did you lodge a complaint? They detained you without giving one single reason. They insisted upon ID. The officers lied about the ordinance.

These officers gave the impression that they didn't even halfway understand the law. Complete jerks.


I did not lodge a formal complaint, at the behest of my grandparents, whom I was visiting at the time and who live in the village in question.

Instead, my family had private conversations with the police department, who claimed that the other officers were unhappy with the behavior displayed and vowed that this sort of thing was not to be tolerated again.


On the other hand, the fact that "you can't beat the ride" suggests that you shouldn't even try to. Your goal should be to survive the encounter and not be convicted of a crime. I'm not at all convinced that complying with an unlawful order to stop recording helps those goals.


> Your goal should be to survive the encounter and not be convicted of a crime.

This is how rights are eroded. Your goal should be to live in a free society; capitulating to illegal civil rights infringements is not how to achieve that goal.


It's hard to be free when you're dead or in prison.

In any case, I don't quite get your point, since I used that to argue against capitulating.


Much better people than I have been dead or in prison in the name of preserving or gaining civil rights. And many more people are freer because of those people.

Sometimes people have to die or go to prison so that others may live or be free.

We should all hope to never have to be one of those people, but if someone, somewhere isn't or hasn't been, things will get worse and not better.


Getting killed or framed by a police officer because you stopped recording him and give him the opportunity to act in secret doesn't do anything to advance the cause of civil rights.


I think I misunderstood the last part of your original comment in the context of your first part. I understood it to mean that one should stop recording in an effort to survive or not get arrested, but re-reading it I do not think that's what you meant, but the opposite.

To clarify my own comment, I'd be of the belief that one should not stop recording, even if that means getting arrested or dead (both unfortunate outcomes, but both sometimes necessary in advancement of civil rights for a greater number of others).


My point is your priorities are backwards. Part of maintaining a society is acting in the best interests of that society, sometimes at great personal cost.


IANAL, but the police could hold you, and you could be charged, though the prosecutor is likely not to charge, or to try to get you to plead to something else, as the charges are unlikely to stick.

The police can lie to you, and tell you to do all kinds of things. The law may not be on their side, but if they have a hand on their gun, they will get their way.


IANAL... just like pretty much everyone else, but circuit court rulings are only valid for areas that are under the jurisdiction of that circuit court. And circuit courts do disagree. Only the Supreme Court has national weight. (Yes, circuits can and do look to other circuits for guidance, but still...)

What ever the case. Consult an attorney before deciding you know enough to act and know what court rulings apply to where you are going to try this stuff.


While circuits disagree, their rulings still hold weight outside of their district or circuit. A case comes to them because it is federal in nature or because there was a reason to remove the case from a state court. By the very nature of a federal court their cases have national weight, and they are not usually supposed to rule on matters of state or local law unless the issue at hand is a law which violates federal protections.

One of the important points in almost every part of this particular ruling is that the court denied or upheld claims almost entirely based on whether there was a reasonable belief that the officers should have known they were violating the law and/or his rights, and in most cases they chose to protect the officers even when making broad statements about the right to film officers. The dissenting opinion is also important (as it sometimes is in Supreme Court rulings as well) in showing that there are other ways the law can be interpreted, and even within this particular district (or on appeal to a higher court) you may not have the same result just because you think you're in the same situation.


I should have said it more precisely. That a given circuit court is only mandatory in its jurisdiction (the district courts in that circuit or that circuit court itself) whereas outside of that circuit it is persuasive. My language about guidance was imprecise, but not exactly wrong.

http://faculty.law.lsu.edu/toddbruno/mandatory_v__persuasive...


I would suggest that you in no way impede what they are doing. If you get in their way, make distracting noise, etc., you probably have a legal issue on your hands. But, if you're at a safe distance, you probably have a good case if they arrest you.

IANAL.


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

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


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


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.


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.


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


What are these "subtle undertones of racism and xenophobia"? There is nothing about QI that is predicated upon race.


If it was explicitly predicated on race it wouldn't be subtle undertones.

I'd say it's more a pro-establishment than racist or xenophobic bias, but in the US the former ends up producing the latter in effect.


If something is not based on race, how can it be racist? That makes no sense at all.


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.


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.


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.


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.


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.


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?


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.


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.


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


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.


Have you read this ruling? No, different courts haven't held different things. They all held the same way, but not in a precedent setting fashion. This ruling sets precedent. The ruling basically puts the police -- all the police, everywhere in the country -- on notice about harassing people photographing them.


Has another Federal court offered a different ruling?


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."


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.

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 (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...


After reading it over some more, I see that I was mistaken and the title of the post is accurate. "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.


Note 5th Circuit, not district.


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...


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-...


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.


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?


Never argue with Police; Call a Lawyer;


So does this apply nationally?


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


I think you meant "the fifth circuit is a federal appeals court." Circuit court is synonymous with federal appeals court.

That doesn't automatically mean a ruling applies nationally. A judge has to specify it. Note that in the Seattle travel ban case, the district court's ruling said that the defendants (the US government) must not enforce the order. Naturally that applies nationally, since he didn't specify a state.

Since the party being sued here is not the US government, the extent of the ruling is less clear to me.

I too am not a lawyer, but I think this kind of applies nationally. It's not an injunction or TRO like in the Seattle case, where a straight-up order was issued: stop now, you are forbidden to do this. In this case they're saying "in future court cases, the law should be interpreted this way."

So they've provided a precedent for other courts when other police are sued on the same grounds. This won't stop police across the nation immediately the way the TRO stopped the travel ban immediately, but over time I imagine it will become less common to try to stop people from recording the police, as it becomes progressively more common knowledge that you're not going to win that if it goes to court.


but there are 10 other circuits on an equal footing and dissenting opinion even within the court, so, while it is a federal matter and could be applicable throughout the country, you probably don't want to be the person who has to go to the Supreme Court to prove it.


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?


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/United_States_courts_of_appeal...

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".


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?


> 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.


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


Not prescient. Better informed, perhaps.


Again




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