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

• Author: Frohman, Gregory T.
• Position: II. The Obstacles to Establishing a Constitutional Right to Film Police C. Glik-ety Split: Those Who Decide and Those Who Abstain 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 through Conclusion, with footnotes, p. 1926-1954

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

   In Kelly v. Borough of Carlisle, (173) a passenger in a vehicle that was pulled over filmed the traffic stop using a hand-held camera. (174) The officer notified the passenger and driver that he was videotaping their encounter from a dashboard cam and recording audio from a microphone attached to his lapel, yet when he noticed immediately thereafter that the passenger was recording him, he confiscated the passenger's camera. (175) After consulting with an assistant prosecutor and calling in an additional three officers for assistance, he then arrested the passenger. (176) As the officers escorted the passenger to the jail, one of them rhetorically remarked, "When are you guys going to learn you can't record us.?" (177) As might be predicted, the prosecutor eventually dropped all charges against the passenger, who subsequently brought a [section] 1983 action. (178)

   In holding that the officers were entitled to qualified immunity for any potential First Amendment violations, the Third Circuit conspicuously noted the propriety of the district court's avoidance of the ultimate constitutional issue under Pearson, despite the fact that there already existed within the circuit at least one case suggesting that there "may" be a protected right to film police. (179) Turning to the "clearly established" question, the Third Circuit noted as a preliminary matter that even among courts that had found a First Amendment right to film the police there was considerable debate regarding whether such a right consisted of blanket protection or required sufficiently "expressive or communicative purpose." (180) The court then proceeded to factually distinguish other cases where protected speech was found--for example, filming in connection with political activism, (181) meetings of state officials, (182) or as part of news gathering (183)--on the basis of supposedly greater expressive purpose. (184) Finally, the court noted in passing that even if there was a right to film police, it could be qualified like other speech by "reasonable time, place, and manner restrictions" (although the court devoted no analysis as to how such restrictions would fare in a police-recording situation). (185)

   The Third Circuit's approach in Kelly should be questioned for multiple reasons. As a substantive matter, it makes little sense to argue that recording police in such a case has no expressive or communicative purpose and content. Because any effect that such footage will have on the wider public discourse must necessarily come after it is filmed and disseminated, its expressive or communicative content is antecedent to those acts. (186) Similarly, its expressive or communicative purpose is often contingent upon what actually transpires between the policeman and the citizen. Videos of police officers performing their duties reasonably will seldom end up on YouTube. (187) In effect, the citizen is saying, "I'm not sure what is going to transpire, but if something objectionable happens, I may want to be able to show someone else in the future." Accordingly, the Third Circuit's apparent requirement that the expressive or communicative nature of both the activity's content and purpose need be established before First Amendment protection attaches is overly restrictive, (188) if not completely illogical. The court's run-down of the inherently fact-bound time, place, and manner restriction doctrine (189) also contributes little to the opinion without any actual analysis of how it would apply in the context of the case at hand.

   More importantly, the Kelly opinion highlights another flaw in the way lower courts have approached Pearson. The preceding paragraph, and much of the Third Circuit's opinion, grapples with the substantive constitutional question under the guise of answering the "clearly established" question. (190) Indeed, in many cases involving novel but plausible individual rights questions, a well-reasoned opinion that begins with the "clearly established" prong of the qualified immunity analysis will nevertheless have embedded within it a significant substantive constitutional discussion component. (191)

   The alternative to doctrinal overlap between the two prongs of the qualified immunity analysis is not much more appealing, though. In Szymecki v. Houck, (192) the Fourth Circuit's opinion did not labor with such difficulties, choosing instead to worry almost exclusively about hedging its decision. After an obligatory blurb concerning Pearson discretion, the court began by noting that district courts "should identify the right at a high level of particularity," and "need not look beyond the decisions of the Supreme Court, this court of appeals, and the highest court of the state in which the case arose." (193) Perhaps recognizing cases from other jurisdictions that had held that a First Amendment right to film police exists, the Fourth Circuit then stated that "[accordingly, if the right is recognized in another circuit and not in this circuit, the official will ordinarily retain the immunity defense." (194) With all of its bases thus covered, the court then concluded its one-page opinion with this perfunctory holding: "Here, the district court concluded Szymecki's asserted First Amendment right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct. We have thoroughly reviewed the record and the relevant legal authorities and we agree." (195) In this way, Syzmecki provides a prime example of constitutional stagnation, (196) the other consequence that can arise from unconstrained exercises of Pearson discretion. Cases like Szymecki officially make no "incremental advance in the law" (197)--in this case, the First Amendment--but still cast a shadow over the shoulder of district court judges considering whether to address the underlying substantive issue in future cases. (198)

   Faced with such unsavory results on an increasingly important First Amendment issue--opinions with either minimal reasoning or reasoning that at least partially implicates the underlying substantive issue, with neither advancing the law--the current iteration of Pearson doctrine applied by some lower courts seems to have backfired in precisely the way Justice Alito assured it would not. (199) In place of a split comprised of "yeas" and "nays" lies an ambiguous field of "yeas" and doubtful "passes."

   3. ADDRESSING THE OBSTACLES: ANCHORING THE CORE AND FILLING IN THE BLANKS

   It is clear that citizen plaintiffs whose recording activities have been wrongfully interfered with by police must overcome the stagnation presented by some district courts' application of Pearson. As this Comment will demonstrate, the text of Pearson and other precedent may indicate that such stagnation has resulted from a flawed interpretation of how much discretion is actually available under Pearson. But even if Pearson discretion is reined in, there will still be two considerable obstacles to obtaining effective relief. First, some courts have held up time, place, and manner exceptions to First Amendment protection as a potential hindrance to a right to record police activity. The practical importance of such allusions is probably overblown due to the scrutiny such exceptions would have to face. The second problem, difficulty recovering anything more than nominal damages, is more substantial and will likely require legislative action. Nonetheless, doctrinal clarification is an important first step on the path to vindication of the right to record police officers and merits closer examination.

   1. There's Still Hope: Why the Pearson Problem Should Not Be Insurmountable

   If the way courts have exercised Pearson discretion when handling First Amendment right-to-record cases has proven dysfunctional, what precisely should be done to rectify courts' inaction? One commentator considers Pearson inevitably flawed, urging a readoption of Saucier's "rigid order of battle" for First Amendment-related [section]1983 claims. (200) Ignoring the practical unlikelihood that the Court would take such a stance just a few years after rejecting it, Saucier sequencing does demonstrate certain appealing procedural advantages when applied in a First Amendment context.

   Recently, members of the Court have repeatedly emphasized that because qualified immunity does not apply to suits against municipalities or for injunctive relief, such suits, along with criminal cases, will provide sufficient vehicles for vindicating individual rights and developing constitutional law. (201) In some cases and on some issues this will certainly be true. However, as Geoffrey Derrick pointed out, the civil suit alternatives have drawbacks in the context of individual citizens who record police officers. (202) Because injunctive relief is essentially forward-looking, rather than backward-looking as in damage suits, a plaintiff may have Article III standing issues stemming from the necessity of pleading facts sufficient enough to establish injury-in-fact and redressability. (203) Monell suits against municipalities require demonstrating policies or practices that encourage the allegedly abusive action, a tall task that often requires prohibitively arduous amounts of discovery. (204) For these reasons, Monell suits often result in settlement rather than decision on the constitutional merits. (205)

   The probability of a criminal suit vindicating a right to record police presents its own difficulties. In a criminal case, the accused would invoke the First Amendment as part of a defense asserting that the statute he or she was prosecuted under was unconstitutional. But as the cases at the circuit level demonstrate, practical-minded prosecutors often opt to drop questionable charges (206) rather than pursue them...