Lights, Camera, Arrest!: Police Officers’ Ability to Stop and Arrest
Citizens from Video Recording Under the Qualified Immunity Doctrine
By: Clay Comley
As the 1st Amendment of the United States Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” While the range of rights protected by the First Amendment is anything but a straightforward list governed by a bright-line rule, the 1st Amendment is generally understood as protecting two classes of rights: Freedom of religion rights under the Establishment and Free Exercise clauses and freedom of speech rights under the freedom of expression clause. Furthermore, the Freedom of Expression clause encompasses numerous types of citizens’ rights including freedom to express oneself without government interference and freedom to peacefully assemble. However, the component of the First Amendment at issue in this paper is the freedom of press. Despite this right’s title, the Supreme Court has recognized 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 . . .” available to the public. In other words, the protections afforded to the freedom of press through the First Amendment do not give members of the press or media any special rights over ordinary citizens. The First Amendment allows all citizens to record matters of public interest and express themselves through dissemination of this information. Because case law clearly indicates that the Freedom of Press protects ordinary citizens from gathering information “from any source by means within the law,” courts have reasoned that the filming of public officials engaged in their duties in public spaces is a protected facet of freedom of press. However, because public officials deal with varying situations in their official capacities, courts have also reasoned that such officials must be allowed some immunity against claims from members of the public.
As a result of countless claims against public officials acting in their official capacity, courts created the legal doctrine of Qualified Immunity to protect these individuals from personal liability. Instead of sending officials out into the public with no sense of what they could be held liable for, Qualified Immunity seeks to provide these officials with the ability to reasonably anticipate when actions will open them up to personal legal liability. As a result, in theory, if a public official acts in a way reasonably believed to be lawful, they are shielded from liability for that action.
Under the Qualified Immunity doctrine, governmental actors performing discretionary functions are entitled to Qualified Immunity from suits as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Thus, Qualified Immunity acts as a rebuttable presumption for public officials if they allege that they acted reasonably when performing the allegedly violative behavior.
As aforementioned, in order to overcome the rebuttable presumption of Qualified Immunity, a plaintiff must show that a constitutional right was both violated and “clearly established” at the time of the violation. While some rights such as the right to speak in a public forum and publish and distribute literature are undoubtedly established and detailed in precedent case law, whether video recording police officers’ conduct is a “clearly established” right is still strongly debated among the federal courts throughout the United States.
Since video recording technology has been made readily available to the general public, people have been recording the conduct of law enforcement officers. However, just like the federal courts involved in the circuit split at issue here, there are parties that argue for both sides. Advocates of citizens’ right to record police activities often point to flagrant instances of injustice and brutality, such as the infamous Rodney King beating in 1991. For example, the independent investigative LAPD team stated “. . . without the . . . videotape the complaint might have been adjudged to be ‘not sustained,’ because the officers’ version conflicted with the account by King and his two passengers.” While this instance has become the flagship for civil rights activists speaking against police brutality, it also illustrates the dangers of individuals’ testimony without concrete recorded evidence. Without the availability of 1st-hand recordings, many crimes and torts would be dismissed from our legal system and some would never even come to light.
Despite this evidential concern, opposing parties argue that recording police can negatively affect how they perform their official duties. For example, if an officer is recorded and subsequently reprimanded by his department or the public despite no wrongdoing being found, that officer may be deterred from effectively using force against citizens in the future. Furthermore, in some circumstances, the party responsible for the recording can inhibit a police officer’s duty to work effectively. In Ortiz, while recording the police officer, the plaintiff placed his camera “as close as one foot” from the officer’s face. Such drastic actions not only decrease a law enforcement officer’s privacy as an American citizen, but may debatably teeter on the edge of assault in the right circumstances. As a result, 11 states still enforce some form of an Eavesdropping law or wiretapping statute against citizens who record police activities. Under these laws, without the officer’s permission, he or she may not be recorded in any way. Furthermore, if unauthorized recording occurs, the recording individual may then be subject to criminal discipline. Regardless of which side one takes in this debate, the recent cases comprising the circuit split indicate that there are advocates for both sides
CURRENT CIRCUIT SPLIT
Jurisdictions Holding Police Officers have Qualified Immunity
The Third and Fourth Circuits have both held that video recording police officers is not a “clearly established” right, which affords Qualified Immunity to police officers who stop citizens from recording their behavior. It is important to note that although these courts afford Qualified Immunity to police officers in these circumstances, they concede that video recording police activity may be a right protected by the First Amendment. Despite this concession, citizens who have this right violated by police officers are unable to successfully obtain civil judgments against them. It is also important to note that each case from these circuits have varying facts, which as a result, may have affected the court’s opinion.
According to the Third Circuit, video recording police activities during traffic stops is not a “clearly established” right because the U.S. Supreme Court has held that traffic stops are inherently dangerous situations for police officers. In Kelly, the plaintiff was a passenger in a vehicle pulled over for minor traffic violations including speeding and a “bumper height restriction.” Plaintiff, a passenger in the vehicle, secretly began recording the defendant without his knowledge. When the officer realized this, he confiscated the camera and arrested the plaintiff. The police officer claimed he had probable cause to arrest the plaintiff due to Pennsylvania’s wiretap statute and his lack of consent to his activities being recorded. After the lower court granted defendant’s motion for summary judgment under the Qualified Immunity doctrine, the Third Circuit reviewed the case. Ultimately affirming the district court’s grant of summary judgment, the court focused on two main points: 1) the fact that there was conflicting case law throughout the country at the time of the alleged violation and 2) the inherently dangerous nature of traffic stops that requires police officers’ command of the situation. As a result of these circumstances, the Third Circuit held that police officers engaged in traffic stops are to be afforded Qualified Immunity for cessation of video recording.
The Fourth Circuit also determined that recording police activity was not a “clearly established” right. However, unlike the Third Circuit, the Fourth Circuit ruled against a plaintiff for recording in a public space as opposed to during a traffic stop. Unfortunately, the Fourth Circuit Court failed to elaborate on its precise reasoning. In its opinion, the Court simply stated, “[T]he district court concluded that 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.” However, the Court also added Fourth Circuit precedent that states, “if the right is recognized in another circuit and not in this circuit, the official will ordinarily retain the immunity defense.” Therefore, the Fourth Circuit does not use another circuit’s recognition of a “clearly established” right as evidence of its status as such. Instead, this Circuit only recognizes rights as “clearly established” if it is shown in its own courts.
Jurisdictions Holding Video Recording Police is “Clearly Established” Right
As previously stated, the First and Eleventh Circuits have held that video recording police officers’ activity is a “clearly established” right. Thus, in those circuits, law enforcement officers do not possess Qualified Immunity when they prevent or cease video recordings.
For example, the Eleventh Circuit has held that citizens have a “clearly established” right to video record police activities in public places. The Court also stated that this right is especially established when the subject being recorded is a “matter of public interest,” such as a public officer’s interactions with civilians. Without discussing the particular facts of the plaintiff’s claim, the Eleventh Circuit recognized this conduct as a First Amendment right “subject to reasonable time, manner and place restrictions.” Although the Court affirmed the grant of defendants’ motion for summary judgment, this was due to plaintiff’s failure to show the conduct actually violated plaintiff’s rights. Despite the plaintiff’s lack of evidence, the Court held that such video recording is a “clearly established” right. Unfortunately, this opinion did not detail the extent of the right or what restrictions would be considered “reasonable” in the Eleventh Circuit.
But after the Eleventh Circuit’s decision in 2000, more than a decade later, the First Circuit agreed with the Eleventh Circuit and further explained the nature of this First Amendment right. In Glik, the First Circuit found that the right to record police officers “fits comfortably within” the principles protected by the First Amendment. In Glik, the plaintiff was walking in a well-known park in Boston called the Boston Common, when he noticed three police officers arresting a suspect. After hearing another bystander exclaim that the officers were hurting the man, the plaintiff began recording the event on his cell phone. After the suspect was subdued, an officer approached the plaintiff and asked if the cell phone recorded audio. Replying in the affirmative, the plaintiff continued recording and was then arrested for violation of the Massachusetts wiretap statute. The phone was confiscated and kept as evidence. All of the criminal charges against plaintiff were dropped and he initiated this lawsuit against the officers. After defendants’ motion for summary judgment as denied by the lower court, they appealed to the First Circuit claiming that defendants were protected under Qualified Immunity. While defendants argued that plaintiff did not have the right to record because he was a private individual rather than a reporter, the First Circuit stated that such First Amendment rights were not limited to members of the press. The Court further explained that because recording police activity “. . . not only aids in the uncovering of abuses . . . but also may have a salutary effect on the functioning of government . . .” private citizens should be allowed to exercise such a right without police interference. According to the First Circuit, because plaintiff acted peacefully, legally, and was protected by the First Amendment, defendants “lacked the authority to stop [him].” The Court also appropriately noted “changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw.” Much like the Eleventh Circuit stated in Smith, the First Circuit also conceded that reasonable limitations must occasionally be placed on such activities. Despite this concession, the Court stated that the plaintiff was still protected because he acted in an obviously public area and neither “spoke to nor molested the officers” throughout his recording.
Obviously, one of the most alarming issues that surround this controversy is that video recording is becoming more widely available and simplified through the use of cell phones. According to ABC News, 91% of Americans currently own a mobile phone, which most likely have video recording capabilities. Furthermore, 61% of Americans use a “smart phone” with Internet, capable of posting videos online. Thus, this issue simply must be settled because the amount of litigation regarding such recording is likely to only increase.
 U.S. CONST. amend. I.
 First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978).
 Blackston v. AL, 30 F.3d 117, 120 (11th Cir. 1994).
 Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978).
 Abbott v. Sangamon Cty., 705 F.3d 706, 14 (7th Cir. 2012).
 Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir. 2008).
 Chelios, 520 F.3d at 691.
 Harlow v. Fitzgerald, 457 U.S. 800, 811 (1982) (emphasis added).
 E.g., id.
 See Andrew R. Shaw, Our Duty in Light of the Law’s Irrelevance: Police Brutality and Civilian Recordings, 20 GEO. J. POVERTY LAW & POL’Y 161 (2012).
 Id. at 162.
 Ortiz v. City of New York, 2013 U.S. Dist. LEXIS 136897 (S.D.N.Y. 2013).
 See generally Stephanie Claiborne, Comment: Is it Justice or a Crime to Record the Police?: A Look at the Illinois Eavesdropping Statute and its Application, 45 J. MARSHALL L. REV. 485.
 See generally Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010); Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009); King v. City of Indianapolis, 2013 U.S. Dist. LEXIS 123505 (So. Ind. 2013).
 Kelly, 622 F.3d at 262.
 Id. at 252.
 Id. at 251.
 Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009).
 Id. at 853.
 Edwards v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999) (internal quotations omitted).
 Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
 Smith, 212 F.3d 1332
 Id. at 1333
 Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).
 Id. at 82.
 Id. at 79.
 Id. at 80.
 Id. at 82.
 Id. at 82-83.
 Id. at 83.
 Id. at 84
 Id. at 84
 Joanna Stern, More Than Half of Americans Own Smartphones, ABC NEWS http://abcnews.go.com/blogs/technology/2013/06/more-than-half-of-americans-own-smartphones/.