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Most incidents of police brutality that attain national attention are brought to light by videos filmed on smart phones. Consequently, as more attention has been paid to the prevalence of police brutality, more Americans have begun filming the police in their daily interactions. Unfortunately, in those instances when police are averse to the notion of being recorded, it can result in retaliation, brutality and even false charges for those daring to exercise their First Amendment rights in such a way. For example, police in New Hampshire seized a woman’s camera and charged her with criminal offenses for disobeying a police officer, obstructing a government official, and unlawful interception of oral communications in retaliation for simply videotaping a police officer at a traffic stop from at least thirty feet away in a parking lot. A police officer in Colorado stood in front of a YouTube journalist to intentionally block his camera view of a DUI traffic stop, shined a flashlight into his camera, drove his police cruiser at the journalist, and repeatedly blasted his air horn. In both instances, the courts found that the filming of police was clearly established First Amendment activity and that the police were therefore not protected from liability under qualified immunity.
Although the U.S. Supreme Court has not yet specifically ruled on a case involving the rights of individuals to record police activities, a growing number of federal appeals courts have upheld the right to record police since 2011. In Irizarry v. Yehia, although the Tenth Circuit Court of Appeals acknowledged that it had not yet specifically recognized a First Amendment right to film the police, it found that the right was nonetheless clearly established “beyond debate” by every circuit which had considered the issue—pointing out and summarizing cases from the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuit Courts of Appeal. While the right to film the police is protected by the First Amendment, the courts have noted that the right is not unqualified and may be limited by “time, place, and manner restrictions.” These restrictions, however, must be “narrowly tailored to serve a significant government interest.” In other words, citizens’ efforts to record the police must not interfere with police in carrying out their duties. However, police who retaliate against individuals for lawfully recording them can also be charged with violating the First Amendment.
The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
This press release is also available at www.rutherford.org.
Source: https://bit.ly/3k1eOl9
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