Activist Appeals Court Decision Stating Public Has No First Amendment Right To Record In Public Areas

from the in-which-a-police-station-lobby-becomes-a-jury-trial dept

Contained in a long list of rights violations allegedly perpetrated on activist Matt Akins is a very interesting First Amendment claim. It's not that Akins' claim is particularly interesting. It's that the court's decision on that issue seems completely wrong.

Akins is no stranger to arrests and interactions with law enforcement.

Akins runs the Facebook page Citizens for Justice, which publishes videos of police on duty and often criticizes and scrutinizes police practices. He used to publish on a website.

Among Akins’ encounters with police in which he alleges his rights were violated is a driving while intoxicated checkpoint that led to a felony gun charge. At the checkpoint, Hughes ordered him out of the car and found a handgun in Akins’ waistband. Though it was legal for Akins to conceal the gun in his car, he had no concealed carry permit, and Hughes arrested him. The suit has alleged that Hughes created the crime by making Akins get out of the car. But the officers have argued at the district court level that Akins could have told Hughes about the gun before exiting the vehicle.

There also was a June 2010 traffic stop in which Schlude pulled Akins and two other men over and searched the car without consent, according to the brief. Akins had a rifle in the car he legally owned, and when Schlude put it back in the car, he told Akins “that having a 10/22 rifle in his car could result in his summary execution by an officer that felt concerned for his safety by a firearm being in the vehicle and that a jury would acquit the officer of his homicide due to officer safety concerns,” according to the brief.

His 80-page petition [PDF] to the Eighth Circuit Court of Appeals hopes to overturn summary judgment in favor of the defendants, who all saw Akins' claims dismissed under qualified immunity. But his First Amendment claims were also dismissed by Judge Nanette Laughrey, using some very dubious precedent.

Akins also argues that he was retaliated against when he was stopped from filming a citizen in the Police Department lobby in 2011; his links to the Citizens for Justice page were removed from the Police Department's Facebook page in the summer of 2011; and he was excluded from a Police Department Media Training Day in October 2015. None of the individual Defendants participated in these incidents, and as discussed above, the City cannot be liable under § 1983 on a respondeat superior theory. Moreover, Akins points to no unconstitutional municipal policy or custom. Further, he has no constitutional right to videotape any public proceedings he wishes to. See Rice v. Kempker, 374 F.3d 675, 678 (8 Cir. 2004) ("[N]either the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public."), and Wis. Interscholastic Ath. Ass'n v. Gannett Co., 658 F.3d 614, 627-628 (7 Cir. 2011)

Two of the three claims have little legal merit. The Police Department is free to remove links from its official Facebook page without crossing the line into censorship and there's nothing in the First Amendment that forces the PD to open up its "media training day" to every member of the public. The second citation deals with Gannett News Service protesting a Wisconsin school's decision to provide coverage exclusivity to one of Gannett's competitors. As the court noted then, there's nothing in the First Amendment that prevents public institutions from entering into exclusive broadcast contracts.

Other courts considering exclusive broadcast agreements between a government entity and a private party have universally, as far as we can tell, reached the same conclusion. Gannett, at least, has shown us no case where an exclusive broadcast agreement has been invalidated on First Amendment grounds.

This handles the "Media Training Day" part of the complaint. But the last of three First Amendment claims -- that Akins was told to stop filming in the Police Department's lobby -- is handled much more questionably. The court cites Rice v. Kemper, asserting that there is no First Amendment right to record government proceedings in public areas. The precedent cited is apples-to-oranges, comparing an open lobby where the public is free to come and go with few restrictions to a death penalty execution, where the public's access to a "government proceeding" is considerably more limited.

Because we hold that neither the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public, we find it unnecessary to decide whether executions must be open to the public. While Richmond mandates that criminal trials be open to the public, no court has ruled that videotaping or cameras are required to satisfy this right of access. Instead, courts have universally found that restrictions on videotaping and cameras do not implicate the First Amendment guarantee of public access.

[...]

Based on the overwhelming weight of existing authority, as well as on our general understanding of First Amendment principles, we hold that the Media Policy banning the use of video cameras and other cameras in the execution chamber does not burden any of New Life's First Amendment rights.

As Akins' filing points out, Judge Laughrey's reliance on a case involving the more limited First Amendment rights afforded to those attending criminal proceedings is misplaced. An open lobby of a police department is simply not comparable to a jury trial or an execution.

In Akins the CPD Lobby was open 24 hours a day, was the designated point where citizens were the file a misconduct complaint/petition the government for a redress of grievances. Contained a “Media Advisory” book on 24 hour arrest reports and information displays and handouts for the public. In addition, it contained a memorial to fallen Officer Molly Bowden. Memorials are designated points where people gather to remember and pay tribute to a particular person or event. Akins assisting Marlon Jordan by documenting his filing of a police misconduct complaint is consistent with the protections of the 1st Amendment. The order of the CPD employee acting pursuant to Chief Burton’s policy that the CPD Lobby was not a traditional public forum and filming not permitted is insufficient to change the nature of this traditional public forum into something else and violated Akins 1st Amendment Rights in the end of the summer 2011.

Citing the First Circuit's Glik decision, Akins points out that the filming of public officials in public areas is protected by the First Amendment.

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.

Filming another citizen filing a complaint may encroach on that person's privacy, but no more so than standing within hearing distance would. If the police were concerned about the complainant's privacy, officers always had the option to handle this interaction somewhere other than the lobby, rather than tell Akins to stop recording. The lobby of a police station is one of the only areas of the building truly open to the public and what happens within that area should be treated no differently than anything happening outside the door on the sidewalk. Applying a decision that invokes the more limited access afforded to attendees of criminal proceedings does no favors to the First Amendment and encourages public officials to deter citizens from recording in public areas.

If the Eighth Circuit Court does agree to review this case, it will be digging into a large number of potential rights violations. Whether or not it will find time to reaffirm citizens' right to record public officials in public places remains to be seen. It seems unlikely that the Appeals Court will overturn any immunity granted to the defendants, but it hopefully may take a second look at what appears to be an erroneous -- and potentially-damaging -- First Amendment conclusion.


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  • icon
    Ninja (profile), 1 Dec 2016 @ 4:37am

    What camera was he using? An iPhone could be a handgun. Imagine a professional Nikon or Canon? A full-fledged missile launcher! He must be a terrorist!

    Bonus for those who remember the phone case ;-)

    reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 1 Dec 2016 @ 4:37am

    Ugh. Another judge ruling in difference of the ruling that the First Circuit Court of Appeals had ruled on in Glik v. Cunniffe 655 F.3d 78 (1st Cir. 2011) that a citizen has the right to video public officials (Police ) in a public place
    https://en.wikipedia.org/wiki/Glik_v._Cunniffe

    Law Enforcement seems to be of the belief that they can stop and arrest you for recording them anytime they want and if your rights are violated in the process and you were not interfering with them while they were doing their thing then that's more than enough justification for them.

    Honestly Law Enforcement seems to be okay with recording you even while you dont realize it (dash cams, body cams) and that is the only way it should be. The mere fact that people nowadays are videoing encounters with Law Enforcement is because there is so much abuse of power by police against citizens and trumped up charges, assaults, planting of evidence, false accusations against citizens it is the citizens way of fighting back by videoing encounters.

    Abuses by Police are only getting more notice nowadays because of citizens video taping police encounters, you can not trust the police when body cam and dash cam footage of an encounter with someone leads to questions of what occurred because how many times have we heard of the dash cams being turned off or footage being "lost' or body cam not recorded because of a "malfunction" or footage being deleted or lost.

    How many times have Law Enforcement personnel flat out lied in their report about what occurred and some one charged with a crime they didn't even commit, and I wont even bring up where people have been shot by police and the police account of what happened doesn't jive with a recording some citizen took.

    Law Enforcement protects it's own, and it is always that way unless you can prove otherwise and lets face it a court is going to take a cops version of events over your version of events because the police officer is deemed automatically more credible.

    If you have video shot by someone else and it back up your version of events Law Enforcemnt still denies it half the time and loves to use the "the video doesnt tell the whole story" line. Like gag me with a spoon with that shit.

    It is time for SCOUTUS to get off their ass and rule on the issue for once and all because the various courts judges and states seem to all be going by a mixed bag of rulings or rulings that are being ignored by Law Enforcement because they can be and courts have rulings that are all over the map and that Law Enforcemnt seems to be making up their own version of the rulings and abusing peoples rights with false charges all to get someone to stop taping them.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Dec 2016 @ 4:46am

    Creep of rights redutction

    Inalienable rights are now subject to local restrictions. Judges who rule against basic rights need to have their own removed to the same extent or they will never learn.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Dec 2016 @ 7:15am

      Re: Creep of rights redutction

      Creep?

      It has already been destroyed, it is just taking a while for people to wake up to that fact. The police already defy court orders and DoJ decisions on these things without any real repercussion.

      Is there any wonder people are becoming more pro-cop killer these days? If you participate in the destruction of liberty then you make it clear you seek a war with "The People" of America.

      Governments job is to protect our liberty before any other duty. And they have instead been about the business of the exact opposite.

      reply to this | link to this | view in chronology ]

      • identicon
        Wendy Cockcroft, 2 Dec 2016 @ 5:55am

        Re: Re: Creep of rights redutction

        [Sad but True]

        reply to this | link to this | view in chronology ]

      • icon
        The Wanderer (profile), 3 Dec 2016 @ 4:43am

        Re: Re: Creep of rights redutction

        In particular, (too many people in) the government seem to have the idea that their first and most important duty is to protect the safety and security of America and its people, rather than the liberty of the same.

        Many - possibly most, though I think probably not all - of the increasing violations we've seen over the past years arise perfectly naturally from that mis-ordering of priorities.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Dec 2016 @ 7:53am

    Dear Judges

    It has become painfully clear that many of you have forsaken their oaths of office and seek to Join the ranks of Ruler Classes.

    Below is an excerpt from the Declaration of Independence. Governments are institution among men to secure rights, not abolish them. The Amendments in the constitution are not things you have the power to deconstruct or alter, only the people and ratification from 3/4 of the 50 state may accomplish this. Your only job is to COMPLY with our requirements. Every attempt you make to destroy them only wakes another person up each day to the fact that you seek a civil war with us in pure ignorance and hubris. There are over 300 million people, and the list of the sleepers grows shorter, how many will you wake up before enough have gathered to gaze in your direction?


    "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Dec 2016 @ 8:12am

    There also was a June 2010 traffic stop in which Schlude pulled Akins and two other men over and searched the car without consent, according to the brief. Akins had a rifle in the car he legally owned, and when Schlude put it back in the car, he told Akins “that having a 10/22 rifle in his car could result in his summary execution by an officer that felt concerned for his safety by a firearm being in the vehicle and that a jury would acquit the officer of his homicide due to officer safety concerns,” according to the brief.

    I remember seeing this mentioned here before. I wonder whether the officer meant it as a threat, as it seems at first glance, or a poorly phrased friendly wording that the system is so corrupt that, for Akins' own safety, he ought to voluntarily curtail his own rights lest he give corrupt officers an easy excuse for killing him. We have already seen other cases where the police killed, without any accountability, people who were lawfully armed and posed no true threat to the police or anyone else.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Dec 2016 @ 8:45am

      Re:

      That's the "respect my authority" or I will kill you and get away with it attitude of the police these days.

      And they honestly believe that they can do it, because they have seen it done many times by many other officers, and the union, or someone always protects them

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 1 Dec 2016 @ 7:08pm

      Re:

      The 'an officer might take that the wrong way and shoot you' half might have been a 'friendly' warning, but the '... and no jury would ever convict them for it' bit makes it pretty clear it was a threat.

      It was little different than the cop stating flat out that he could gun down Akins on the spot if he wanted and not get in trouble for it, just using different words.

      reply to this | link to this | view in chronology ]

  • icon
    Oninoshiko (profile), 1 Dec 2016 @ 12:57pm

    "having a 10/22 rifle in his car could result in his summary execution by an officer that felt concerned for his safety by a firearm being in the vehicle and that a jury would acquit the officer of his homicide due to officer safety concerns"

    The cop's not wrong. They seem to be able to get away with murder pretty easy.

    reply to this | link to this | view in chronology ]


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