Appeals Court Says Filming The Police Is Protected By The First Amendment

from the another-circuit-added-to-the-list dept

In news that will surprise no one, police officers decided they must do something about someone filming the police department building from across the street. That's where this Fifth Circuit Court of Appeals decision begins: with a completely avoidable and completely unnecessary assertion of government power.

Phillip Turner was filming the police department. He was accosted by two officers (Grinalds and Dyess). Both demanded he provide them with identification. He refused to do so. The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car. Given the circumstances of the initial interaction, it's surprising the words "contempt of cop" weren't used on the official police report. From the opinion [PDF]:

Grinalds asked Turner, “How’s it going, man? Got your ID with you?” Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, “I didn’t say you committed a crime.” Grinalds elaborated, “We have the right and authority to know who’s walking around our facilities.”

Grinalds again asked for Turner’s identification, and Turner asked Grinalds, “What happens if I don’t ID myself?” Grinalds replied, “We’ll cross that bridge when we come to it.” Grinalds continued to request Turner’s identification, which Turner refused to provide. Grinalds and Dyess then “suddenly and without warning” handcuffed Turner and took his video camera from him, and Grinalds said, “This is what happens when you don’t ID yourself.”

Turner asked to speak to their supervisor. Given that this happened right across the street from the department, Turner didn't have to wait very long. A supervisor arrived and came to at least one correct conclusion:

Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, “You’re right.”

Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does… or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest.

After some discussion between the officers, Turner was released and his camera was given back. Turner filed a civil rights lawsuit. The lower court granted immunity to the officers on all allegations. The Fifth Circuit, however, refuses to go as far. And in doing so, it actually takes it upon itself to address an issue it easily could have avoided: whether the First Amendment covers the filming of public servants, specifically law enforcement officers.

First, the court asks whether the right to film police was "clearly established" at the time the incident took place (September 2015). It can't find anything that says it is.

At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality”: “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Thus, Turner’s reliance on decisions that “clarified that [First Amendment] protections . . . extend[] to gathering information” does not demonstrate whether the specific act at issue here—video recording the police or a police station—was clearly established.

The court doesn't leave it there, although it could have. The court notes that there's a circuit split on the issue, but just because the issue's far from decided doesn't mean courts have not recognized the right exists. It points to conclusions reached by the First and Eleventh Circuit Appeals Courts as evidence the right to film police has been acknowledged. Even so, there's not enough clarity on the issue to remove the officers' immunity.

We cannot say, however, that “existing precedent . . . placed the . . .constitutional question beyond debate” when Turner recorded the police station. Neither does it seem that the law “so clearly and unambiguously prohibited [the officers’] conduct that ‘every reasonable official would understand that what he is doing violates [the law].’” In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turner’s activities.

This is where the opinion gets interesting. While many judges would leave a trickier, somewhat tangential issue open and unanswered, the Fifth Circuit Appeals Court decides it's time for it to set some precedent.

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.

[...]

To be sure, “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.

In the Fifth Circuit -- joining the First and Eleventh Circuits -- the First Amendment right to film police has been asserted. Unfortunately, the issue still remains mostly unsettled, and there's currently nothing in front of the Supreme Court that would set national precedent. Unfortunately, the decision doesn't help Turner with his First Amendment claim, but it will help others going forward.

The court also reverses immunity on one of Turner's Fourth Amendment claims. While it finds the officers were justified in questioning him, they went too far when they arrested him. First, as pointed out above, the "failure to identify" law can't be used to predicate an arrest. And, after questioning him, the officers still had nothing approaching the probable cause they needed to make a warrantless arrest. Even though Turner was detained in the back of the squad car for only a short period of time, the fact that he was obviously not free to go makes it an arrest under the Fourth Amendment.

Strangely, the dissent, written by Judge Edith Brown, claims the Appeals Court has no business setting precedent. In her opinion, the nation's second-highest courts should stand idly by and wait for the Supreme Court to do the work.

The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” The majority derives this general right to film the police from “First Amendment principles, controlling authority, and persuasive precedent.” But the Supreme Court has repeatedly reversed attempts to define “clearly established law” at such “a high level of generality.” White, 137 S. Ct. at 552.

The judge narrowly defines Turner's filming to ensure it would never fall under this supposedly "broad" definition of the right. She says the Appeals Court defines the protection as covering "filming police." But Turner wasn't doing that.

To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police “carrying out their duties in public.” E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station.

Somehow, filming police officers as they enter and exit a public building is not "filming police carrying out their duties in public." Remarkably, Judge Brown says there may be "reasonable" security concerns that could Constitutionally prevent Turner's actions.

The majority does not determine that the officers here violated Turner’s First Amendment rights—perhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station.

If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants.

Unsurprisingly, Judge Brown thinks Turner's involuntary stay in the back of a squad car could reasonably be viewed as Turner just hanging out there waiting to speak to a supervisor:

Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turner’s detention into a de facto arrest. At the very least, Officers Grinalds and Dyess did not act objectively unreasonably in waiting for the requested supervisor—especially because Lieutenant Driver had to come from the Fort Worth Police Station across the street.

Except that most people "waiting for a supervisor" don't do so while:

a.) handcuffed

b.) sitting in the back of a locked squad car

The length of the detention doesn't matter. And it was ultimately the supervisor's arrival that sprung Turner. If not for the arrival of the supervisor -- who immediately recognized Turner couldn't be arrested for refusing to ID himself -- Turner would undoubtedly have spent an even longer period being detained, if not taken into the PD and processed.

The good news for Turner is that his sole remaining Fourth Amendment claims -- the wrongful arrest -- lives on. But the bigger win -- the First Amendment protections confirmation -- helps everyone else but him.


Reader Comments

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  • identicon
    Anonymous Coward, 21 Feb 2017 @ 12:02pm

    Well...

    That was nice for a change!!!

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

  • icon
    DannyB (profile), 21 Feb 2017 @ 12:45pm

    What is a crime

    1. Asking if you're being detained automatically makes you suspicious and thus can require you to identify yourself.

    2. You can be arrested for failure to identify in order to obtain your identification, because you aren't required to identify until you are arrested. Once arrested, the cop has your identity.

    3. Asking what you are being arrested for can constitute resisting arrest.

    I'm not sure which one is my favorite. I was leaning toward (3), but decided I liked (2) because it is so circular -- or as managers would say, it has no loose ends.

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

    • identicon
      Anonymous Coward, 23 Feb 2017 @ 8:29am

      Re: What is a crime

      Are you literally retarded?

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

      • identicon
        Zee L Usay, 25 Feb 2017 @ 11:02am

        Re: Re: What is a crime

        I think(hope) he was pointing out the illogical notions of law used by the officers in this case. I get this from his saying:
        "I'm not sure which one is my favorite. I was leaning toward (3), but decided I liked (2) because it is so circular -- or as managers would say, it has no loose ends."

        But, if I'm wrong then your question becomes rhetorical as the answer is obviously affirmative.

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

      • icon
        difdi (profile), 25 Feb 2017 @ 11:40pm

        Re: Re: What is a crime

        He's not literally retarded, but I suspect you might be. Or at least, your ability to recognize sarcasm and mockery seems to be defective. You may want to get that replaced.

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

    • identicon
      vad, 24 Feb 2017 @ 9:14am

      Re: What is a crime

      4. Subsequent publishing the video or your arrest for the public, organizing fundraising campaign, and other means to make public appeal, serve as a proof of your plans to obstruct the work of government agency.

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

  • icon
    Shane C (profile), 21 Feb 2017 @ 12:45pm

    Fort Worth

    The location in Texas was left out of the synopsis. In case you are wondering where this happened;

    Plaintiff-Appellant Phillip Turner was video recording a Fort Worth
    police station from a public sidewalk across the street when Defendants- Appellees Officers Grinalds and Dyess approached him and asked him for identification.

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

  • identicon
    Anonymous Coward, 21 Feb 2017 @ 1:19pm

    Not uncommon in Texas

    I live in Texas and one of my hobbies is photographing transportation. Air, rail, sea, ground. And yes, I get questioned. A lot. Many times the LEO will demand I erase all photos "Because we live in a post 9/11 world". I don't make a fuss and simply delete the photos on the chip.

    Which isn't at all the same chip that was in the camera before they rolled up and got out of the car.

    I'm working on a way to use BlueTooth to copy the photos to a Raspberry Pi in my car, and from there, up to the Cloud via cell modem. A cloud OUTSIDE of the "five eyes" treaty.

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

    • identicon
      Anonymous Coward, 21 Feb 2017 @ 4:25pm

      Re: Not uncommon in Texas

      My camera has a feature where it can write to two SD cards simultaneously. When pulling up photos for review, it only reads off the first card. So if someone asks me to erase my photos, I'll first show them the photos, then with them viewing, I'll select "format disk" -- at which point the camera shows "no pictures to display".

      Everyone seems happy with that song and dance.

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

    • identicon
      hegemon13, 22 Feb 2017 @ 10:26am

      Re: Not uncommon in Texas

      Bluetooth would be tough because of the low bandwidth and close range. But WiFi would do nicely. Just get a wi-fi enabled SD card and set it to backup automatically to an access point in your vehicle. Or the hotspot on the phone in your pocket. And from your phone, uploading automatically to any number of cloud services is a piece of cake.

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

  • icon
    That Anonymous Coward (profile), 21 Feb 2017 @ 1:26pm

    Judge Brown, keeping the anything you think is suspicious must be criminal, and even innocuous activity that upsets someone in authority might be a crime.

    One wonders if the Judge would feel it wasn't an arrest if she was handcuffed & detained in the back of a patrol car because she was looking at her phone & they thought she was filming.

    Allowing the officers to keep playing the well we THOUGHT the law said X only adds to the contempt they find themselves facing. If you are charged with upholding the law & you have to 'invent' an excuse to flex your muscle you shouldn't be an officer. At minimum it should be a painful lesson for the officer with a penalty the union contract can't undo.

    While these fine upstanding officers were illegally detaining a citizen & stomping on his rights, was there any real crime they should have been after?? Wasn't there a kids lemonade stand they could have trashed & seized the cookies from?

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

  • icon
    Norahc (profile), 21 Feb 2017 @ 2:21pm

    If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants.

    Sure it can...after all, the law doesn't apply to public servants and the Constitution is something to be worked around at every opprotunity.

    /sarcasm

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

    • icon
      Bergman (profile), 25 Feb 2017 @ 11:47pm

      Re:

      Ironically, if there is no right to record people entering or exiting a public building, then there is certainly no right to record people entering or exiting a private one.

      Suddenly, police on stakeouts would need a warrant to video record the outside of a suspect's house and to record who comes and goes.

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

  • icon
    Mononymous Tim (profile), 21 Feb 2017 @ 3:20pm

    The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car.

    To what, drive him aaalll the way across the street?

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

    • identicon
      Anonymous Coward, 21 Feb 2017 @ 4:54pm

      Re:

      To what, drive him aaalll the way across the street?

      To keep someone else from photographing what was about to happen to him in the back of the squad car.

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

  • identicon
    Anonymous Coward, 21 Feb 2017 @ 5:22pm

    Police. That one heck of a tech info here.

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

  • identicon
    dr evil, 21 Feb 2017 @ 8:59pm

    am i being detained?

    undoubtedly a better solution is to have a different line of q and a with officers that do not know the law..

    if you are asked to do A (present ID for instance) ask "am i obligated to do A?"
    if answer is "no" wait silently
    if "yes" the reply "please present the law or statute that supports this" and again wait silently
    since police in the USA do not have to be hired from the best qualified applicants (or the most intelligent.. google it) your torementor will likely not know what to do next.

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

    • icon
      That One Guy (profile), 22 Feb 2017 @ 12:07am

      Re: am i being detained?

      your torementor will likely not know what to do next.

      If only.

      'When in doubt, contempt of cop' would likely be the default step at that point, because clearly only a criminal would even think of invoking their rights or talking back to a cop, and the mere act of doing so is suspicious and grounds for say, locking someone in the back of a cruiser.

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

    • identicon
      Anonymous Coward, 22 Feb 2017 @ 7:02am

      Re: am i being detained?

      if "yes" the reply "please present the law or statute that supports this" and again wait silently

      As the cuffs go on and you head to jail. Yeah, real good plan you got there.

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

  • identicon
    TXchick811, 22 Feb 2017 @ 10:42am

    Failure to Identify

    "Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does… or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest."

    This is true with regard to REFUSING to identify; but it is important to note the rest of the statute which involves false or fictitious information. As a criminal defense attorney, I have seen both--used properly and improperly. The relevant statute is Tex. Penal Code §38.02, which reads:

    (a) a person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information;

    (b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
    (1) lawfully arrested the person;
    (2) lawfully detained the person; or
    (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

    Under §(a), the offense is a Class C misdemeanor and punishable by fine only. The offense is a Class B misdemeanor under §§(b) and punishable by up to 180 days in jail and/or a $2000.00 fine. However, the offense is a Class A misdemeanor under §§ (b), IF the person was, at the time of the false ID, a "fugitive from justice." This is punishable by up to 1 year in jail and/or a $4000.00 fine.

    So, in this case the police were unlawfully arresting under §(a), since no false name was given. Let's say he had given the name "John Smith"; well, under these same circumstances neither §§ (a) nor (b) could support an arrest, because he wasn't lawfully arrested, he wasn't lawfully detained (meaning that the police did not have reasonable suspicion or probable cause to believe a crime had been committed simply by his independent filming of activity at the police station); nor did the police have good cause to believe that he was a witness to a criminal offense.

    In Texas, you can be arrested for a Class C ticket-able offense except in two instances--speeding and open container. There is pending legislation this year that would limit arrests to offenses that are Class B and greater. (This is good legislation that should be supported.)

    One more tip--generally if you are arrested, you should invoke your rights. The SCOTUS says you must "affirmatively" do this. What that means is that you must actually say: "I am invoking my right to remain silent and I want my attorney." Then you should actually STAY silent. If you don't, you can be found to have waived your earlier invocation.

    Very good article, I have shared.

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

  • identicon
    Bigga Picked Ya, 23 Feb 2017 @ 4:15am

    When are they going to arrest Google Maps/Streetview?

    10^100 got pictures first.

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

    • icon
      That One Guy (profile), 25 Feb 2017 @ 7:21pm

      Re: When are they going to arrest Google Maps/Streetview?

      Google has money and access to skilled lawyers, therefore Google can fight back, and bullies usually avoid targets that are able to stand up to them.

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


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