What is and what should never be: examining the artificial circuit "split" on citizens recording official police action.

• Author: Frohman, Gregory T.
• Position: Introduction through II. The Obstacles to Establishing a Constitutional Right to Film Police C. Glik-ety Split: Those Who Decide and Those Who Abstain 1. Courts That Find a First Amendment Right to Record on the Constitutional Merits, p. 1897-1925

ABSTRACT

The free flow of information concerning public officials' performance of their duties, widely disseminated to the citizenry, is important to the proper functioning of a democratic republic. Courts have traditionally recognized the important role of robust citizen oversight in maintaining public official accountability in First Amendment jurisprudence. As new media for recording and distributing information have arisen, the First Amendment's protective embrace has consistently shielded users from criminal punishment for their communicative activity, regardless of the controversial nature of their subject matter. The propagation of smartphones with ever-greater audiovisual capabilities represents simply the latest phase in the evolution of electronic media, but some wary police and overzealous prosecutors have attempted to suppress citizens' recording of public police activity using state wiretapping laws. Wiretapping statutes typically ensure this privacy by requiring the consent of one or all of the participants to a conversation, but for the consent requirement to attach as a preliminary matter, such a conversation must typically be private in a Fourth Amendment sense. The typical arrest scenario, performed by public officers in a public place, seemingly fails to fulfill this requirement. Accordingly, it is highly dubious whether such criminal statutes could ever be considered reasonable time, place, or manner restrictions on First Amendment activity. With what appears to be a relatively straightforward constitutional analysis, doctrinal resolution on the issue of citizen recording should have been fairly swift in the federal courts.

Yet the opposite has proven true. Several district courts' applications of the discretion the Supreme Court granted them in Pearson v. Callahan--to decide whether a constitutional right is "clearly established" before addressing the substantive constitutional issues in [section] 1983 cases--have stagnated the development of First Amendment jurisprudence in this area. This Comment explores why the "sound discretion" granted by the Pearson Court may not be as broad as some district courts have assumed. Because the Pearson Court listed at some length what district courts should consider in utilizing their [section] 1983 discretion--and Camreta v. Greene established that those considerations were factors, not merely dicta to be disregarded--the "sound discretion" of Pearson is not equivalent to carte blanche. Therefore, this Comment proposes that the Court can and should ensure adherence to its [section] 1983 qualified immunity precedent by requiring district courts to make Pearson findings on the record. This would better facilitate adequate development of constitutional law on important contemporary issues like the First Amendment right to record police, ensuring that the district courts' administrative convenience is curtailed enough to avoid doctrinal stagnation.

CONTENTS INTRODUCTION I. CITIZEN OVERSIGHT AS A CHECK ON POLICE POWER A. Quis Custodiet Ipsos Custodes? The First Amendment Case for Transparent Police Oversight B. Theory in Action: A Historical Perspective II. THE OBSTACLES TO ESTABLISHING A CONSTITUTIONAL RIGHT TO FILM POLICE A. The Dubious Applicability of Wiretapping Statutes and Other Existing Criminal Laws to Recording by Third-Party Observers B. The Current State of the "Clearly Established" Requirement: Pay No Attention to the Man Behind the Curtain C. Glik-ety Split: Those Who Decide and Those Who Abstain 1. Courts That Find a First Amendment Right to Record on the Constitutional Merits 2. Courts That Decline to Examine a First Amendment Right to Record by Disposing of Cases on the "Clearly Established" Prong of the Qualified Immunity Analysis III. ADDRESSING THE OBSTACLES: ANCHORING THE CORE AND FILLING IN THE BLANKS A. There's Still Hope: Why the Pearson Problem Should Not Be Insurmountable 1. Reemphasizing District Court Consideration of the Pearson Factors by Requiring Findings on the Record 2. The Majority of the Pearson Factors Actually Favor Consideration of the First Amendment Right to Record B. About Those Time, Place, and Manner Restrictions C. The Need for Statutory Damage Provisions with Teeth CONCLUSION "Nearly all men can stand adversity, but if you want to test a man's character, give him power."*

INTRODUCTION

Being hit over the head with a police baton is no picnic. (1) Neither is being tased. (2) In the decades since the Rodney King beating first threw excessive police force into the American limelight, groups such as the ACLU have worked hard to keep it there by encouraging citizens to record and report such misconduct. (3) With the advent of cheap handheld recording devices and new public fora spurred by the digital revolution, alleged instances of police brutality are legion. (4)

Yet few would argue that the use of force is always inappropriate. (5) Policing is undeniably dangerous work, sometimes requiring split-second decisions to ensure the safety of officers and bystanders. Discerning the justified use of force from the unjustified is often a difficult business. Some commentators, mainly police advocacy groups and prosecutors, have attempted to extend these rationales to justify suppression and confiscation of footage depicting police in action. (6)

This Comment will argue that public safety justifications are only vindicable in a narrow subset of police-conduct filming situations; courts have alluded to these reasonable time, place, and manner restrictions in passing. (7) The remainder forms a baseline of First Amendment-protected activity warranting uniform judicial recognition. But as this Comment will demonstrate, achieving uniform recognition has proven surprisingly difficult because of the procedural posture of most cases--[section] 1983 claims against individual officers for damages. Development of the law has been stymied by the effects of the qualified immunity doctrine, under which judges can decline to reach the underlying constitutional question and instead simply rule that the law is not clearly established. With the ever-increasing omnipresence and technological capabilities of personal recording devices, doctrinal clarification is in order. Part I of this Comment will explain the important role of citizen scrutiny over public official activity in a well-functioning republic, providing historical examples of the powerful effect violent imagery has had on the American people since the nation's inception. Part II will then analyze the recent case law involving citizen recording. It will briefly touch upon the misguided struggle to apply extant statutory schemes to criminalize filming situations facilitated by technological innovation. Primarily, however, it will examine the underlying procedural issues, observing that the Court's qualified immunity doctrine for [section] 1983 actions has greatly hindered resolution of an important constitutional question. It will ultimately posit that, in light of recent developments and other precedent, the circuit split concerning a First Amendment right to record police officers is unsustainable as a proper application of qualified immunity doctrine. Finally, assuming that constitutional protection should be afforded to the majority of situations involving citizen recording, Part III will assess the major obstacles to obtaining relief that need to be addressed before recording police activity can be considered a right with any teeth.

1. CITIZEN OVERSIGHT AS A CHECK ON POLICE POWER

   Sometimes it is easy to forget the critical role speech plays in greasing the wheels of our democracy. As we collapse on the sofa at the end of another grueling workday, perhaps we flip on the news and catch a few snippets about an opposition leader in some far-flung region of the globe who has been jailed because those in power disdain or feel threatened by his or her message. (8) The alleged crimes are sometimes laughably dubious; (9) we shake hour heads and change the channel, secure in the knowledge that the repression exercised by authoritarian regimes and fledgling democracies would not dare show its face in our own nation. Indeed, many of the mechanisms that accord us this sense of security operate so inconspicuously in the background of our constitutional fabric that perhaps most of us seldom take the time to stop and think about them. But this is not necessarily so. Legal thinkers in the Founding era carefully considered the ramifications of free speech, or lack thereof, to the problems of their day. (10) As the decades passed, the problems changed, but the core principles remained the same. Interested citizens, commentators, and, most importantly, courts have adapted these timeless principles to contemporary media to ensure an "uninhibited, robust, and wideopen" (11) evaluation of our nation's affairs. As previously...