Taping Cops is Free Speech

42 U.S.C. § 1983, Bellingham Defense Attorney, Cell Phone, Constitutional Rights, First Amendment, law enforcement, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

McKinney police Cpl. Eric Casebolt is shown in a screen shot from video of an altercation in which he pulled his gun on a group of teenagers at a pool party. A witness, Brandon Brooks, uploaded this video of the incident to YouTube. In a recent 5th Circuit Court of Appeals ruling, Justice Jacques Wiener wrote: “Protecting the right to film the police promotes First Amendment principles.”

The federal 5th Circuit Court of Appeals held that videotaping or filming police activities is protected by the First Amendment.

BACKGROUND FACTS
Phillip Turner, a computer science major at Austin Community College, started collecting video of police activities after he said a Cedar Park police officer blocked his view when filming a DUI arrest several years ago. He filed a complaint and during an investigation learned that there wasn’t an established right to film the police.
Armed with his understanding of the law, Turner has since posted a series of videos on his website where he challenges police officers and police department policies on videotaping of their activities.

On the day of the incident, Mr. Turner was video recording a Fort Worth police station from a public sidewalk across the street when Officers Grinalds and Dyess approached him and asked him for identification. Turner refused to identify himself, and the officers ultimately handcuffed him and placed him in the back of a patrol car. The officers’ supervisor, Lieutenant Driver, arrived on scene. after Driver checked with Grinalds and Dyess and talked with Turner, the officers released Turner.

He filed suit against all three officers and the City of Fort Worth under 42 U.S.C. § 1983, alleging violations of his First and Fourth Amendment rights. Each officer filed a motion to dismiss, insisting that he was entitled to qualified immunity on Turner’s claims. The district court granted the officers’ motions, concluding that they were entitled to qualified immunity on all of Turner’s claims against them. Turner appealed.
THE COURT’S DECISION
Ultimately, the Court affirmed in part and reverse and remand in part.
“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,” Justice Jacques Wiener wrote in an opinion joined by Justice Stephen Higginson. “Protecting the right to film the police promotes First Amendment principles.”

The 5th Circuit made it clear that such activity to be protected, saying that “a First Amendment right to record the police does exist, subject only to reasonable time, place and manner restrictions,” Justice Wiener wrote.

“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 . . . Protecting the right to film the police promotes First Amendment principles.”

The 5th Circuit sent the case back to the lower court to examine Turner’s claims that he was unlawfully arrested. The court cleared the officers on that point, determining the acted appropriately. In her dissent, Justice Edith Clements said Turner’s First Amendment rights were not violated and that the officers acted reasonably in detaining Turner.

Turner’s attorney Kervyn Altaffer called the 5th Circuit’s ruling a significant one in a complicated area of the law.

“I think any time one of the federal court of appeals says that something is protected by the Constitution, that is important for all people,” Altaffer said. “I definitely think they the police overstepped. … This is supposed to be a free country.”

My opinion? Cameras make everyone behave. And I’m extremely happy the 5th Circuit describes this behavior as protected free speech. Kudos to the 5th Circuit.

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