The Right of Citizens To Videotape Police

Below is my column today in The Los Angeles Times where I discuss the continuing trend of arrests of citizens videotaping police. We have followed many more cases but a couple are mentioned in the column. What is most disturbing is that prosecutors and police are continuing to fight court rulings upholding the right of citizens to videotape police.


Twenty years ago, as Rodney King was beaten by Los Angeles police officers, a private citizen in a nearby apartment turned on his video camera. Largely because of that tape, four officers were criminally charged. In July, a homeless schizophrenic man died after a police beating in Fullerton. Audio from a cellphone video caught Kelly Thomas’ cries for his father and helped force an investigation that resulted in a first-degree murder charge against one police officer.

The increasing availability of cellphones and video cameras has fundamentally changed police abuse cases, creating vital evidence in cases that were once dismissed as matters of conflicting accounts between officers and citizens. With that change, however, has come a backlash from officers who, despite court rulings upholding the right of citizens to tape police in public, have been threatening or arresting people for the “crime” of recording them. In many states, prosecutors have fought to support such claims and put citizens in jail for videotaping officers, even in cases of police abuse.

In New York this year, Emily Good was arrested after videotaping the arrest of a man at a traffic stop in Rochester. Good was filming from her frontyard; an officer is heard saying to her, “I don’t feel safe with you standing behind me, so I’m going to ask you to go into your house.” When she continued to film, the officer said, “You seem very anti-police,” and arrested her.

DOCUMENT: 1st Circuit Court decision: Citizens’ right to record

In Illinois last month, Brad Williams filed a lawsuit against the Chicago Police Department because, he said, he was beaten by police in response to his filming an officer holding and dragging a man down the street from inside a moving squad car. Ironically, Chicago has rejected complaints about the installation of thousands of cameras in the city that film citizens in public for use in prosecutions.

In Maryland in July, Anthony Graber got a well-deserved speeding ticket, but his real mistake was posting footage from his motorcycle helmet-cam on YouTube. It showed an irate off-duty, out-of-uniform officer pulling him over with his gun drawn. Prosecutors obtained a grand jury indictment against Graber on felony wiretap charges, which carry a 16-year prison sentence.

In Boston in August, the U.S. 1st Circuit Court of Appeals ruled unambiguously that the Constitution protects citizen videographers filming in public. In that case, attorney Simon Glik was walking past the Boston Common on Oct. 1, 2007, when he came upon three Boston officers arresting a man. Glik turned on his cellphone camera after hearing a witness say the police were being abusive. An officer told Glik to turn off his camera. When Glik refused, he was arrested for violation of the state wiretap statute, disturbing the peace and, for good measure, aiding in the escape of a prisoner.

The charges were dismissed after a public outcry, but in a later civil rights case, city attorneys fought to deny citizens the right to videotape police. The court rejected Boston’s arguments and found that the police had denied Glik his 1st and 4th Amendment rights.

But other federal judges might not be so sure. Take Richard Posner, the intellectual leader of conservative judges and scholars who sits on the U.S. Court of Appeals in Chicago. Posner shocked many last month when he cut off an attorney for the American Civil Liberties Union, which had filed suit to challenge an Illinois law preventing audio recording of police without their consent.

The ACLU lawyer had uttered just 14 words when Posner barked: “I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.” Posner then added his concerns about meddling citizens: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers…. I’m always suspicious when the civil liberties people start telling the police how to do their business.”

Many judges may privately share Posner’s view of such confrontations. And the near-total silence of politicians in dealing with the question of the public’s right to record what they see and hear suggests that many legislators may also find these cases inconvenient.

Actions against citizen videographers run against not just the Constitution but good public policy. Yet, without a videotape, Rodney King would have been just another guy with a prior record claiming abuse, against the word of multiple officers.

The outcome once was all but inevitable: no tape, no case. As long as police abuse is out of sight, it can also be out of mind. If successful, the backlash against citizens recording police could guarantee that Rodney King is never repeated — the officers’ trial, that is.

Jonathan Turley is a professor of public interest law at George Washington University.

Los Angeles Times, November 8, 2011

30 thoughts on “The Right of Citizens To Videotape Police

  1. Police often find themselves in “he said/she said” situations and, quite frequently, lament that there is no evidence to prove their story. Well, here it is kids! My fear is that we are going to find out the police lie more often than even my cynical self thought. That will further undermine the authority of the law and convince more decent people they do not want a career in law enforcement.

    My hope is they will come to expect they are always on tape and uphold a standard to be proud of. But the courts are still undecided and they have shown a propensity in recent years to support the increased police state control.

  2. When I am talking with a newly hired officer, I always pull my cell phone out of my shirt pocked and hold it up. I ask the officer if he knows what the black dot on the back of the camera is, and no matter the response, point out that it is a camera lens. Then I remind the officer that every fifteen year old in the country has one and knows how to upload a video to YouTube. Pointing out the “Celltop” icon on my phone, I explain the video can actually be uploaded as we sit and talk. I always tell young officers that such video can either be their best friend or worst enemy; it all depends on their own behavior.

    I also remind them that there are video cameras everywhere. They are in ATM machines, in store and bank areas, industrial sites and private homes. They never know when they will be on candid camera. I point out the security camera video of Timothy McVeigh parking that Ryder truck in front of the Murrah Federal Building.

    I have yet to interview a new hire that my little lecture did not fail to impress. Also point out to them some of the court decisions against officers who try to arrest citizens who video them in public spaces. Then I tell them if they try to arrest a citizen for taking their picture, they do not need to worry about the rest of the public being outraged; their biggest immediate worry will be me, who will pull their certification to even be a police officer or deputy sheriff.

  3. Well said OS. If the courts disallow citizens to film or record in public, the police will be unchecked and abuses will continue and even worsen. If the police can use a street camera, so can I. Legislation and right wing courts will not stop the taping.

  4. Photographer shot by Oakland Police with “less-lethal” round, for no apparent reason
    http://boingboing.net/2011/11/07/photographer-shot.html

    An Oakland Police Department officer shot blogger and videographer Scott Campbell with a projectile (a “bean bag” round or rubbber bullet, it’s not clear which) while he was recording video during Occupy protests this weekend. Mr. Campbell was not threatening the officers or engaged in any violent activity that required this response. Is it legal for police to shoot photographers in a public place simply because they do not want to be photographed?

    *****
    Scott Campbell–the blogger/videographer who was shot with the projectile–talked with Keith Olbermann last night:

  5. I hope this is a positive outcome…..Here is a case where two officers actually went to prison….for causing the death of a black man….in Detroit…In this one NO VIDEO EXISTED or at least that is my recollection….

    Malice Green was a resident of Detroit, Michigan who died while in police custody after being arrested by Detroit police officers Walter Budzyn and Larry Nevers on November 5, 1992 during a traffic stop. Both officers were later convicted for Green’s death. The official cause of death was ruled due to blunt force trauma to his head. Green allegedly failed to relinquish a vial of crack cocaine. Nevers struck Green in the head with his flashlight approximately fourteen times[1] during the struggle which, according to the official autopsy, resulted in his death.

    After the struggle Green was transported to a local hospital for treatment for the head injuries sustained in the struggle where he died.

    A subsequent report presented by the police officers’ paid experts at their trial stated that Green died of heart failure, caused in part by an enlarged heart due to years of substance abuse, and aggravated by the struggle with police.

    Green was black and the two decorated officers were white. The incident occurred only months after the Los Angeles riots of 1992, which protested the acquittal of police officers in the video-taped beating of Rodney King. Local leaders, including Detroit Mayor Coleman A. Young, may have feared a repeat of the Los Angeles riots in Detroit.

    Young stated that Green was “literally murdered by police”[2] on national television less than 72 hours after the incident, before any investigation had been concluded. He also stated that the “wrong” verdict in the case could cause riots similar to those in Los Angeles after the Rodney King incident.

    http://en.wikipedia.org/wiki/Malice_Green

  6. It is an interesting contrast to consider the Supreme Court is hearing arguments today on warrantless attachment of GPS to anyone’s car for any reason. As JT pointed out, the govt. feels it has every right to set up cameras recording private citizens in Chicago going just about everywhere in their daily life. The rulers of the universe have spy satellites trained on every part of the globe–so clearly, police do not object to being monitored per se. Being monitored by the govt., an entity they can likely count on to “lose” the tapes (CIA torture tapes for example) or just refuse to provide the record we all know exists is O.K.

    They only object when they cannot control the distribution of the information. If they are engaged in wrongdoing they cannot suppress the evidence or rely on their friendly overlords to “lose” or deny (state secrets) it even exists!

    A few days back the police state sent a message to citizens by shooting a man who was taping them. I am sorry things have come to this in our nation. It should not be and honestly, I do cry about it.

  7. Isn’t there something about public domain that can be brought to bear here? I’m going to fumble this a bit, but take celebrities for example, they can be videotaped/photographed against their will because they are a public figure. HOWEVER, take kids for example. Every year at school, I have a form to sign where I can either allow/not allow my child to be filmed or photographed. Likewise, when a person is out filming, say, a documentary or a news story, they need to seek permission from people in the shot to be filmed. So, police officers are LITERALLY public figures and cannot deny the public’s right to film them WHEREAS, the populace should stand firm against videotape surveillance (street cameras, etc). Has this ever come up?

  8. Only slighted related, here in Asheville, NC, our local #Occupy movement has been getting shadowed by an Asheville PD forensics officer. She videos our public meetings and our pickets.

    Lately, APD has been selectively arresting people for things like obstructing traffic and unlawful assembly days after the unlawful act allegedly occurred and use the forensic officers videos to issue the arrest warrant.

    Here’s the twist. Yesterday, a local blogger published a screenshot of the APD forensic officers facebook. She was unhappy with having to film us and called us “dirtasses”, which I think is funny.

    But, that’s not all, the screenshot also captures this same officer and another city employee joking about giving OccupyAsheville people a “big hug…around the neck…with a rope.”

    Here’s the link to local newspaper covering the story: http://tinyurl.com/885tl8h

  9. Also, our local DA, Ron Moore, is making national news because the hacker/activist group “anonymous” claims to have evidence linking him to a Mexican/American drug cartel and illegal activities.

    Not enough evidence for me to have an opinion on this one yet. Hoping its not true, though. Our little mountain town is feeling the strain and the police/DA’s office are becoming unpredictable in their public policies.

  10. We pay the police with tax dollars, we pay the Judiciary with our tax dollars and maintain the public spaces with our tax dollars. The government has claimed the right to have security cameras filming anywhere they wish!

    I have news for them, none of them would exist without our tax dollars, and the tax dollars of corporations who make their money from selling goods to the citizens….
    All I can tell them is blowback is a bitch if they try to outlaw citizens filming the police in public.

  11. One thing the Occupy Movement has shown: the questions about whether or not we still have 1st Amendment rights. Do we have the right to assembly when they invoke a local ‘park’ rule against camping?

    I doubt there were corporate hotel chains during the days of the founders. Where do they expect people to assemble in order to speak their grievances to the government?

  12. From my unlawyerly perspective I think the issue is simple. Free speech purportedly (I had to use that qualifier) allows citizens observing unlawful police behavior to complain and testify against them. Using a camera is merely an extension of this and so should have similar protection. However, as those among us who blindly follow the dictates of the Corporatist Plutocracy would have it our freedoms must be limited by the agents of our “betters”. I have always found it curious that the same people who rail about the evils of government are so supportive of those evils when used as instruments of oppression and repression. If we become the stereotypical oppressed nation, much of the blame will fall on people who either willfully, or stupidly supported the thinking that would allow police the ability to hide their bad behavior.

  13. This issue is so obviously simple that it can only take an overlord with more immediate power than they should have, to object to it.

    Public officials by definition are public; to argue that a police officer is not a public official is sheer sophistry. They are not only public officials, they are in the public when they are doing their job – another reason why they can’t object to being filmed.

    The reciprocity argument also makes it obvious, the govt can and does put surveillance cameras in the public street areas, filming passers-by without their permission. If that is legally acceptable, then how can private filmers be breakin the law?

    This is so obvious and outrageous from a simple common-sense perspective, that I predict within 3 years all laws against filming police officers who are publically fulfulling their duties will be repealed. It is downright embarrassing to see grown men seriously defending such a policy with a straight face, when they all know it is just so wrong.

  14. Professor Turley is correct that forbidding such photos/videotape insulates officers from the consequences of their misconduct. But officers are not the only ones thus protected. Consider the 1992 Otto case, decided by the California Supreme Court. An older man suspected his younger wife was having an affair, so he tapped his own phone to find out. The recorded messages revealed not just an affair, but a plot to murder the man–-which was carried out. But the Supreme Court reversed the murder conviction because the phone message was deemed unlawfully recorded and thus inadmissible.

    Officers should not be shielded from punishment by anti-taping laws. But neither should anybody else.

  15. […] David’s father, 58-year-old David Braxton Scherz Sr., and his sister, 24-year-old Elizabeth Scherz were charged with felony assault. Notably, an officer is heard saying “Get her, she has a camera,” as Elizabeth stood in the driveway filming the arrest of her mother and father. Deputies took away the iPhone. This is part of a pattern of such abusive arrests of citizens who film police in public. […]

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