Cameras Down, Hands Up: How the Supreme Court Chilled the Development of the First Amendment Right to Record the Police

• Publication year: 2020

Cameras Down, Hands Up: How the Supreme Court Chilled the Development of the First Amendment Right to Record the Police

Christina Murray

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Cameras Down, Hands Up: How the Supreme Court Chilled the Development of the First Amendment Right to Record the Police^*

I. Introduction

You may not realize this, but the Supreme Court of the United States has possibly jeopardized one of your First Amendment rights: the right to record the police. While this right may mean little to you now, it could serve as a means of protecting your other rights and in keeping law enforcement accountable. Because of the right to record the police, we have documented footage of police brutality from Missouri to Louisiana. These recordings have sparked outrage and fueled a conversation around policing, race, and our country's values.

This Comment will track the development of the right to record the police through the circuit courts, to include the existence of an "artificial circuit split." Then, it will address the recent Supreme Court decision, Nieves v. Bartlett,¹ in which the court required a plaintiff in a retaliatory arrest claim to plead and prove that the police lacked probable cause.² Finally, it will combine these two topics to show that when the Court prioritized policing above protesting, and probable cause above constitutional rights, it thrust an icepick in the development of the right to record; and that instead, to protect this

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right and others, it should have adopted a framework practiced in several circuits, the Mt. Healthy Framework.³

II. The Circuit Courts—The Split

A. Circuits with a Recognized Right

Of the nation's thirteen federal circuit appellate courts, only six have unequivocally recognized a citizen's First Amendment right to record the police as they conduct their public duties.⁴

The first of these courts was the United States Court of Appeals for the Eleventh Circuit.⁵ In Smith v. City of Cumming,⁶ a decision handed down in the year 2000, the court did not even hesitate when it announced that the right existed.⁷ By synthesizing numerous cases from its own circuit and beyond, the court held that the First Amendment protects the right to gather information about public officials, especially when that information relates to a matter of public interest.⁸ The only caveat the court placed on this rule, which many

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later courts have followed, is that the right is limited to reasonable time, place, and manner restrictions.⁹

Of note is the fact that the Eleventh Circuit so readily recognized the right with seemingly little deliberation, a feat, as we will see, that is not as simple for other courts. Yet, although this court recognized that the right existed, the plaintiffs did not prevail on their 42 U.S.C. § 1983¹⁰ claim.¹¹ Instead, the court held that the defendant officers had not actually violated their right to record.¹²

While these plaintiffs lost because the court found their right was not violated, many other plaintiffs have lost on the ground of qualified immunity. Qualified immunity is the principle that shields public officials from personal liability stemming from discretionary acts¹³ taken during the exercise of their position.¹⁴ When determining whether qualified immunity is appropriate, the court uses two prongs: (1) whether a constitutional right existed and (2) whether the right was clearly established at the time of the violation.¹⁵

The "clearly established" doctrine is, in essence, where the circuit split lies. Just like defendants cannot be charged with a vague law,

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officers cannot be held liable under a civil rights violation unless they have fair warning that their actions violated a particular constitutional right.¹⁶ Many courts use this prong to discuss that while, yes, the right exists, it was not apparent enough that an officer would know. Below, the importance of the clearly established determination is illustrated.

In Glik v. Cunniffe,¹⁷ the United States Court of Appeals for the First Circuit dealt with the issue of qualified immunity. In Glik, the plaintiff was walking in the Boston Commons, when he saw several police officers arrest a young man. The plaintiff, Glik, and other bystanders began to worry about the amount of force the officers were using, so Glik pulled out his cell phone and began recording the arrest. When officers noticed what Glik was doing, they confronted him, asked whether he was using audio recording,¹⁸ and arrested him for violations to the Massachusetts wiretap statute and two other state offenses. All charges were dismissed, and Glik filed a § 1983 claim against the officers for violations of his First and Fourth Amendment rights.¹⁹ The district court denied the defendants' claim of qualified immunity, for which the defendants appealed.²⁰

When determining whether the First Amendment right existed, the United States Court of Appeals for the First Circuit stated that cases within their circuit and throughout the others "answer that question unambiguously in the affirmative."²¹ Much like Smith, which was cited here, the First Circuit analogized a private citizen's right to record to that provided to news reporters.²² As the court stated, the right of access given to the press is equal to that provided to private citizens.²³ Additionally, the First Circuit placed the same time, place, and manner restrictions on the issue as did the Eleventh Circuit, but, here, the plaintiff prevailed. The court held that because Glik recorded the police from one of the oldest parks in the country at a distance away from the arrest, he was well within his rights to record, and by deterring him from recording, the officers violated his rights.²⁴ The First Circuit

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affirmed this ruling several years later in Gericke v. Begin,²⁵ where it used Glik to show that the right to record was clearly established.²⁶

Next, the United States Court of Appeals for the Seventh Circuit joined the discussion with ACLU of Illinois v. Alvarez,²⁷ decided in 2012. In Alvarez, the ACLU challenged the state's wiretapping statute²⁸ which established a class one felony for any audio recording of law enforcement officers.²⁹ This statute in no way restricted the visual recording of officers, but as soon as audio was initiated, a felony was committed.³⁰ The ACLU challenged the law as it applied to their upcoming police accountability program.³¹

The Illinois ACLU's police accountability program sought to record police officers as they performed their duties at expressive events. These events would include protests or demonstrations involving members of either the ACLU or other groups. The ACLU would then display these recordings online and through other electronic media forms. None of the audio received during these recordings would be with the officers' consent, but the ACLU intended to only record speech which was audible to a regular bystander.³²

Concerned with the potential backlash, before it initiated the program, the ACLU sought declaratory judgement and a preliminary injunction under § 1983 to bar the Cook County State Attorney, Anita Alvarez, from prosecuting its members under the state's wiretapping laws.³³

The wiretapping laws not only made it a felony to audio record police officers performing their duties, but outlawed the recording of all audio during any oral communication.³⁴ The district court, failing to recognize a First Amendment right to audio record and seeing this statute as

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constitutional, dismissed the ACLU's complaint for failure to state a cognizable First Amendment injury.³⁵ The circuit court vehemently disagreed with the district court.³⁶

The circuit court determined that despite the conclusions of the district court, there was, in fact, a First Amendment right to audio record.³⁷ The court held that, first, the First Amendment protects not only direct speech, but the processes that results in that speech.³⁸ The court likened the process of recording to that of painting or taking notes at events, activities which found protections in prior Seventh Circuit precedent.³⁹ Second, the court stated that First Amendment Freedom of Speech includes the right to receive the speech of others. Because the officers would be speaking in a way for others to hear, the ACLU had just as much right to receive that speech as anyone else.⁴⁰ And third, the court highlighted that the First and Eleventh Circuits agree that the right exists.⁴¹

Given that the right was established, the circuit court then looked to whether the wiretap statute could survive First Amendment scrutiny.⁴² The court determined that it could not, because by banning all recordings, even those not intended as private, it failed to serve the end goal of privacy.⁴³ The court held that while this statute was a violation of First Amendment rights, it was even more so because it prevented the ACLU from recording public officials.⁴⁴ The court emphasized the "practically universal agreement that a major purpose of the First Amendment 'was to protect the free discussion of governmental affairs.'"⁴⁵ By failing to recognize that the ACLU had a cognizable First Amendment claim, the district court and State Attorney committed a flagrant injustice.⁴⁶ For this, the circuit court reversed and remanded, instructing the district court to enter the preliminary injunction.⁴⁷

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Thereafter, it took five more years for another circuit court to jump into the ring. Finally, in 2017 the United States Court of Appeals for the Fifth Circuit held that the right to record was not clearly established at the time of the incident but preserved the right for future decisions.⁴⁸ In Turner v. Driver,⁴⁹ Phillip Turner was taking photographs of the Fort Worth, Texas police station from the sidewalk across the street. Two officers saw him with his phone and asked for identification. When he refused to offer it, he was placed in the back of a patrol car with the windows rolled up and the...