The Right to Record Police

Last week, federal courts issued two decisions affirming the right of citizens to record police under the First Amendment. In Atlanta, a court held the police department in contempt of court for violating a prior court order to allow citizens to record police. In New York, a court held that recording police is a “clearly established right” under the U.S. Constitution, and that if a police officer violates that right, he or she can be sued in federal court.

First, in Anderson v. Atlanta, the court addressed a prior court order that had ordered the Atlanta police to implement reforms to their training policies and conduct mandatory in-person training for all officers regarding those reforms. In part, the new required policy states: “All employees shall be prohibited from interfering with a citizen’s right to record police activity by photographic, video, or audio means. This prohibition is in effect only as long as the recording by the citizen does not physically interfere with the performance of an officer’s duties.” An officer’s violation of this policy would result in dismissal.

In the court’s contempt order, it found that the Atlanta police had not made the required changes to its policy, and therefore had also failed to implement and enforce the required changes. The court held the Atlanta police in contempt of court, imposed sanctions, and awarded the plaintiff $30,000 in attorney fees for litigating the contempt motion. The court gave the police 45 days to comply with its order. The court stated that after the 45 days expired the court would impose a fine of $10,000 per day.

Second, in Higginbotham v. New York, the court addressed a lawsuit alleging that a journalist covering the Occupy Wall Street protests was falsely arrested and preventing from exercising his First Amendment rights. In 2011, the plaintiff had been working as a freelance video-journalist covering an Occupy Wall Street protest. The plaintiff had climbed on top of a phone booth to record a nearby arrest. A police officer ordered him to climb down but he did not immediately comply because there were too many people surrounding him. When he did begin to climb down, officers grabbed his legs, he dropped his camera, and he fell to the ground. The officers placed him in handcuffs and held him in custody for four hours before releasing him. He was charged with disorderly conduct, but the charge was later dismissed.

In the case, the court rejected the officers’ motion to dismiss the complaint. The court held that the complaint raised a plausible claim of false arrest. The court further held that the complaint raised a plausible claim that the plaintiff was arrested in retaliation for attempting to exercise First Amendment rights.   The court noted that “[a]ll of the circuit courts that have [addressed the issue] have concluded that the First Amendment protects the right to record police officers performing their duties in a public space, subject to reasonable time, place and manner restrictions.” After discussing the important goals of prohibiting government censorship and promoting free discussion of government affairs, the court held that “[t]he videotaping of police officers in the performance of their duties in public plainly furthers these First Amendment goals.” The court further held that “[v]ideotaping from a reasonable distance is arguably less of a hindrance to legitimate police activity than the verbal challenges [to police officers] that the First Amendment unquestionably protects.”

Rebecca K. Smith is Board Secretary and Cooperating Attorney at the Civil Liberties Defense Center.


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