On May 25, 2020, police officer Derek Chauvin was caught on a cell phone camera kneeling on the neck of an unarmed black man, George Floyd. The police officers at the scene tried to dodge the cameras under the guise of qualified immunity, but cell phones on every street corner nowadays make this difficult. At Chauvin’s murder trial, the prosecution played the entire nine and a half minutes of the cell phone footage as the focal point of their case against the former police officer.
The civilian recording of the murder of George Floyd came nearly two decades after a Los Angeles citizen recorded police officers beating an unarmed Rodney King. At the time of the Rodney King beating, footage of police interactions was rare, but now, interactions between police and civilians are being caught on camera more than ever before. In the last decade, First Amendment doctrine has been clarified to include the right to record public police actions under the right of the public to has access to information.
When it comes to civilians recording police actions, the First Amendment and doctrine of qualified immunity often come into conflict with each other. On one hand, judicial interpretation of the First Amendment has trended toward the conclusion that the freedom of the press applies to freelance civilians as well. On the other hand, “qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” City of Escondido v. Emmons (2019).
Is there a First Amendment right to record the police in public, and does this right outweigh the doctrine of qualified immunity?
Due to the increased frequency of civilians recording their interactions with police, this issue has come up many times in the federal circuits, and a split in judgment has emerged as to whether the First Amendment clearly establishes the right to record police activity. The Tenth Circuit recently joined the Third Circuit, saying such a right isn’t clearly established. Meanwhile, the First, Seventh, Ninth, and Eleventh Circuits have said the right is clearly established.
The Tenth and Third Circuits
When police in Denver, Colorado began using force while arresting an uncooperative suspect in public, Levi Frasier began video-recording the interaction. After the arrest, an officer followed Mr. Frasier to his car and wanted him to hand over the video. Mr. Frasier did show the officers the video on his tablet-computer, but suddenly Officer Evans and other Denver Police Department members surrounded Mr. Frasier and pressured him to turn over the video, eventually snatching the tablet-computer out of his hands without his consent. Mr. Frasier contended that he had the right to record the video under the First Amendment while the police officers contended that their actions were justified under the doctrine of qualified immunity. Frasier v. Evan (10th Cir. 2021).
The Tenth Circuit held that since the “right to record [the officers] in the performance of their official duties in public spaces was not clearly established at the time of their alleged conduct in August 2014,” the officers were entitled to qualified immunity and did not violate the First Amendment. Further, the Tenth Circuit dismissed the argument that the Denver Police Department was liable for failure to properly train officers on the First Amendment rights of the civilians that they interact with. The court reasoned that since the First Amendment right to record was not clearly established by judicial precedent at the time of this incident, qualified immunity trumped Mr. Frasier’s First Amendment right to record the police.
The Third Circuit encountered a similar issue when Richard Fields and Amanda Geraci attempted to record Philadelphia Police while they were “carrying out official duties in public.” Fields v. City of Philadelphia (3d Cir. 2017). The court was clear that “recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.” However, there were reasonable “time, place, and manner restrictions” to the right to record. The court clarified that in this case, however, the recording in a public place was protected. Despite the clear First Amendment right to record, the Third Circuit held that the police officers were not liable for retaliation against those who recorded the video, due to qualified immunity. The court reasoned that since these incidents occurred in 2012-2013, a reasonable officer might not have known about the First Amendment rights of Mr. Fields and Ms. Geraci since the doctrine was not sufficiently clarified at this time.
The First, Seventh, Ninth, and Eleventh Circuits
Simon Glik was arrested for violating Massachusetts’ wiretap statute and other state-law offenses after he recorded several police officers arresting a young man on the Boston Common with his cell phone’s camera. Glik v. Cunniffe (1st Cir. 2011). The First Circuit reasoned that “the First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public?” The court strongly answered this question affirmatively. The court held that “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” The court concluded that filming government officials engaged in their public duties is a prime example of information that is protected by the First Amendment, and this right to record is not overcome by qualified immunity.
On August 5, 1990, Jerry Fordyce attempted to record a public protest march, but City of Seattle police officers interfere. Fordyce v. City of Seattle (9th Cir. 1995). Mr. Fordyce considered himself a part of the protest and wanted to film it so that it could later be broadcast on the news. There were police officers in Fordyce’s video, who became the target of rude and profane insults as the protest progressed. Some officers ignored Fordyce and the other protesters, but others tried to interfere and “physically…dissuade Fordyce from his mission. Later in the day, Fordyce was arrested for recording other bystanders against their wishes and violating a Washington privacy law. The charges were later dropped, and Fordyce sued the police department for violating his First Amendment right to record a newsworthy event. The Ninth Circuit held that “a genuine issue of material fact does exist regarding whether Fordyce was assaulted and battered by a Seattle police officer in an attempt to prevent or dissuade him from exercising his First Amendment right to film matters of public interest… [including when Fordyce’s] camera was deliberately and violently smashed into his face by Officer Elster while Fordyce was publicly gathering information with it during the demonstration.” The court reasoned that since the protest was obviously a newsworthy event, there was a First Amendment protection to recording it, even when there were individual police officers who did not want to be recorded.
James and Barbara Smith sued police in Cumming, Georgia after they allegedly harassed the couple. Mr. Smith was prevented from recording the police in violation of his First Amendment rights. Smith v. City of Cumming (11th Cir. 2000). The Eleventh Circuit held that there was a clear “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” However, the court also held since the Smiths sued under 42 U.S.C. § 1983, they were required to “prove that the conduct complained of deprived them of “a right, privilege or immunity secured by the constitution or laws of the United States.” This ruling is particularly notable since almost all plaintiffs seeking relief for a constitutional rights violation will utilize § 1983.
As police officers come under greater public scrutiny and calls for police reform grow louder across the country, there are likely going to be future incidents between civilians with cell phones and officers. None of the above-mentioned cases have progressed to the Supreme Court. However, it is likely that the issue of the First Amendment in the digital age is not going anywhere. Considering that the law has not fully caught up with the technological revolution of the twenty-first century, judicial interpretation will continue to be called upon to fill in the gaps.
For further reading on recent Supreme Court decisions on the scope of the First Amendment and cell phones, see: Mahanoy Area School District v. B.L. (2021). For further reading on a Seventh Circuit decision invalidating an Illinois eavesdropping law that prevented all recording without consent, see: Am. C.L. Union of Illinois v. Alvarez (7th Cir. 2012).