Federal Appeals and Supreme Courts have affirmed the right to film Police in “public places”
by John-Hery Hill, M.D.
May 25, 2013
The U.S. Supreme Court and several federal Appeals Courts have ruled that every person – not limited to journalists – has an individual right, guaranteed by the 1st Amendment to the Constitution, to record POLICE (still photos, video and audio) when they are in a PUBLIC PLACE since “the police have no reasonable expectation of privacy”. The term “public place” means ANY place the general public is allowed to go without special permission – including privately owned venues open to the general public. In addition, the courts have that any person can film (still photo, video, audio) any other people out in a public venue since these people also have “no expectation of privacy” when in a public place.
Just a few landmark decisions: First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir 1999); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009); Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969); Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007); ACLU-Illinois v. Anita Alvarez, No. 11-1286, (7th Cir., 2012); and Simon Glik v John Cunnifee; City of Boston, et.al, 10-1764; 1st Cir. Federal Appeals Court.
Further, in the Glik v John Cunnifee and City of Boston; Szymecki v. Houck; and ACLU-Illinois v. Alvarez cases (all civil suits for damages where the people arrested later sued the police officers -as individuals- and the city governments), the courts ruled that:
(1) The police had NO immunity from the civil action based on their status as police officers. The courts have stated that any reasonable police officer should know that interfering with a person’s recording would violate his First Amendment rights. Courts do not allow officers to get sued for making reasonable mistakes, but the courts have stated these seizures were not reasonable mistakes. The officers should have known better.;
(2) When police stop a recorder from filming, the police action violates the First Amendment.;
(3) When the police officers seize the person’s phone or camera or video-recorder AND/OR when they arrest the person filming, the police have SEIZED the person’s personal property and/or his body, both of which violate the Fourth Amendment -unlawful and unreasonable seizures.
Of note is the fact that Illinois (ACLU-Illinois v. Alvarez ) and Massachusetts (Glik v John Cunnifee and City of Boston) had possessed what were considered the strictest “wire-tapping” statutes in the nation, with each offense considered a felony. Further, the General Court of Massachusetts (the state’s highest court) had previously ruled that the Massachusetts wire-tap statute applied to police officers in a public place when AUDIO was recorded along with video. Commonwealth v. Hyde, 750 N.E.2d 963, 2000 WL 34610712, 36-38 (Mass. 2001). The federal First Circuit of Appeals Court (located in Boston, Massachusetts with federal jurisdiction in New England) had been more amicable than the state court to the right to record police. In Iacobucci v. Boulter, 193 F.3d 14 (1st Cir 1999), the 1st Circuit Court recognized a First Amendment interest in recording public officials engaged in public duties, but did not expand into when these same public officials are NOT engaged in public duties. The court further denied the arresting officers qualified immunity–no reasonable officer could believe that the arrest was constitutionally valid. The ACLU-MA pushed the law further in Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007), where 1st Circuit Court enjoined police from using the wiretapping law to interfere with publishing an audio-video recording of police, even though that audio-video recording was done surreptitiously, in violation of the Massachusetts wire-tapping statute. Of the cases appealed to the Supreme Court, none have been accepted for review – in effect, an affirmation that the rulings by the various federal circuit appeals courts hold.
The same provisions apply to filming or video-audio recording any other person located in a public place: you may video-audio record them since they have “no reasonable expectation of privacy” in a public place. There are NO restrictions on VIDEO-ONLY (no AUDIO) recording other people in a public place, whether performed openly or secretly. However, if other people can SEE you video-audio recording them or other people, then there are NO restrictions on whom or when you can video-audio record anyone located in a “public place” – whether you are video-audio recording police officers, other public officials or private people.
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