First Amendment Right to Record Police 5 Major Cases

Legal Researcher Darren Chaker: Understanding First Amendment Right to

Photograph Police 

The First Amendment Legal Backdrop by Darren Chaker: Filming Police in Action
Beverly Hills-based First Amendment advocate, Darren Chaker, highlights the well-established legality of filming police officers during their duty. The First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts. However, the general theme coast-to-coast is found in Irizarry v. Yehia, 38 F.4th 1282, 1292 (10th Cir. 2022) the court found, “Based on First Amendment principles and relevant precedents, we conclude there is a First Amendment right to film the police performing their duties in public.” The First Amendment right to record police is a right and need not be justified when invoking a Constitutional Right. 

Despite this, instances of harassment or arrest for filming are not uncommon, underscoring a disconnect between law and practice. Darren Chaker goes into more detail citing core authority for informational purposes.

First Amendment Right to Films Police in Public            

One case out of the Eleventh Circuit, Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000), held “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.”

In Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) the court found “Arrestee’s use of his cell phone’s digital video camera to film police officers arresting a young man in a public park was not “secret”…”

Darren Chaker emphasizes that gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966).

Prior to mobile phones combining high resolution cameras were common place, the Ninth Circuit found recognized in Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) that a “First Amendment right to film matters of public interest.”

Similarly, in Demarest v. Athol/Orange Cmty. Television, Inc., 188 F.Supp.2d 82, 94–95 (D.Mass.2002) the court had found it “highly probable” that filming of a public official on street outside his home by contributors to public access cable show was protected by the First Amendment, and noting that, “[a]t base, plaintiffs had a constitutionally protected right to record matters of public interest”.

As such, legal research writer Darren Chaker finds the law is uniform on this issue: a First Amendment right exists to film police in public.

Darren Chaker Notes Bloggers Are Journalists Too Under the First Amendment               

An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.’ ” Houchins v. KQED, Inc., 438 U.S. 1, 11, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (quoting Branzburg v. Hayes, 408 U.S. 665, 681–82, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972)).

Journalistic protection applies to common people who desire to record or post about the news which may impact much of the general public. In Obsidian Finance Group LLC v. Cox, Nos. 12-35238 and 12-35319, 2014 WL 185376 (9th Cir. Jan. 17, 2014) the Ninth Circuit stated in part, 
“First Amendment defamation rules apply equally to both the institutional press and individual speakers; the protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities…”

As the cameras on phones have evolved, so too have news stories centered around police abuse captured on camera by common people who needed to photograph police abuse. Such instances of police abuse are not new, they have existed for decades. What is new is the proliferations of phones equipped with high quality camera. Even if a video showing police abuse is posted on an online blog, Facebook page or similar personal site and not posted on a major news site, “online speech stands on the same footing as other speech—there is ‘no basis for qualifying the level of First Amendment scrutiny that should be applied’ to online speech.” In re Anonymous Online Speakers, 661 F3d 1168, 1173 (9th Cir2011), quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997).

Asserting Your First Amendment Rights by Darren Chaker
Darren Chaker notes the unnecessary demand for a press pass when filming police. Legal precedents, such as Hiibel v. Sixth Judicial District Court of Nevada, clarify that identification is only required when there’s reasonable suspicion of a crime. This reinforces the importance of not providing reasons for arrest, such as interfering with police duties. “[T]he government’s ability to restrict speech in such locations is ‘very limited.’ ” Id. (quoting United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), however if the person is interfering with police duties, literally, such as blocking the officer, standing too close to be a danger, then the potential for a legitimate arrest increases.

Brief Writer Darren Chaker Finds Refusing to Identify While Filming Police is Not the Basis for an Arrest if Your Only Conduct is Within the First Amendment                                                                                                                                                                                                                                                                                                                                                                                         First, it is critical to accept, photographs are protected by the First Amendment. Bery v. City of New York, 97 F.3d 689, 696 (2d Cir. 1996) and as discussed above, photographing police is within the scope of the First Amendment. The Supreme Court held that photography is a protected part of speech since the “expression by means of motion pictures is
included within the free speech and free press guaranty of the First . . . Amendment[].” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). This protection necessarily extends to the process of creating video, including recording.

To find photography is not protected would be “akin to saying that even though a book is protected… the process of writing the book is not.” Animal Legal Defense Fund v. Wasden, 878 F.3d 1184, 1203 (9th Cir. 2018). The Ninth Circuit continued to state, “[t]he act of recording is itself an inherently expressive activity.” Animal Legal Defense Fund, 878 F.3d at 1203. See also ACLU of Ill. v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“Audio and audiovisual recording are media of expression commonly used for the preservation and dissemination of information and ideas.”). (emphasis added) Thus, keep in mind you are on the right side of the law when recording police and not threatening them.

Unfortunately, most local police and sheriff deputies need not attend college prior to being given a badge, gun, and the powers of the state. This creates issues when the educated person who is educated in their rights comes across the uneducated cop. Although it may sound brash, the fact is the right to photograph police in public has existed for decades, but police continued to arrest people for doing nothing illegal. In fact, in California, police violated the rights of citizens so often, the state was forced to pass a law expressly stating a perform who is filming police may not be arrested. The law made it clear police could not arrest a person for recording them in Penal Code section 148(g):

“The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.”

Despite the statute, training to update police concerning the right to be recorded performing duties is a First Amendment right, police continue to violate the First Amendment and California law.  

For example, while California police were being recorded, they asked the citizen to identify themselves. When he  objected to identifying himself, police arrested him for resisting arrest (PC 148) and a lawsuit was filed. The federal judge found in Maya v. Cnty. of San Bernardino, No. EDCV191871JGBKKX, 2023 WL 4383344, at *26 (C.D. Cal. June 1, 2023) that, “Other than a refusal to identify himself, Defendants do not identify any conduct by Plaintiff that has been found to fall within that prohibited by Section 148… Defendants are unable to identify a single California state case that holds that the mere refusal to identify oneself constitutes a violation of Section 148.” (emphasis added) 

In another California civil rights lawsuit, the federal court found in Albanese v. City of Oroville, No. 2:22-CV-1131-KJN, 2022 WL 7093373, at *1 (E.D. Cal. Oct. 12, 2022) that,

“This case concerns whether, at this stage of the pleadings, plaintiff may proceed with federal civil rights and associated state-law claims against a police officer and the city where plaintiff stood some distance away from the scene of an arrest to record the incident, refused an order from an officer to back up, and was arrested for interference under Cal. Pen. Code § 148(a). The case is not dismissible. California law does not permit arrest for obstruction solely because a person records law enforcement officers, and plaintiff alleges this was what he was doing.”

Of course, a police officer can ask the person recording anything they like, however not answering a question cannot be the basis of, for example, “interfering with an investigation”. The US Supreme Court stated in Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969) found that it is a “settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer”.

Another US Supreme Court is Florida v. Royer, 460 U.S. 491, 498 (1983) (plurality op.) where it held, “the person approached, however, need not answer any question put to him; indeed he may decline to listen to the questions at all and may go on his way … He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds”.

In California, the statute which once required a person to identify yourself was deemed unconstitutional by United State Supreme Court. In Kolender v Lawson, 461 U.S. 352 (1983). Since then, courts have consistently found a person is “free to refuse to identify himself or to answer questions” without violating section 148. (People v. Quiroga, supra, 16 Cal.App.4th at pp. 967-969, 20 Cal.Rptr.2d 446.)

In a case out of San Diego, California the appellate court held, “While the act of refusing to disclose one’s identity at the booking stage of arrest “unquestionably” obstructs a police officer in the discharge of his or her duties, a mere “refusal to disclose personal identification following arrest for a misdemeanor or infraction cannot constitute a violation of Penal Code section 148.” (In re Chase C., 243 Cal. App. 4th 107 (2015)) This is likely the clearest authority to do so post Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004).

Lastly on this point, brief writer Darren Chaker finds Florida v. Bostick, 501 U.S. 429, 437 (1991) to be instructive where the Supreme Court found that absent reasonable suspicion, “an individual may decline an officer’s request without fearing prosecution… we have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure”.

Consequently, police have no justification to demand identification from a person who is within his or her First Amendment rights to photograph the actions of police performing their job. Photography of a public is a right. Unless the person is interfering with the officer’s duties, then no right to arrest exists if filming is the police is the only reason to arrest the person.

Effective Filming Under the First Amendment: Darren Chaker Recommends Non-Interference and Keeping Respectful Distance                                                                     

It’s crucial to film without interfering with police duties. Keeping a safe distance and using technology to zoom in ensures both safety and compliance with the law. Darren Chaker reminds us that while filming police is protected, it should not extend to harassment or interference.

Yelling profanities at police is a protected right. The First Amendment protects significant amount of verbal criticism and challenge directed at police officers.  Loharsingh v. City and County of San Francisco, N.D.Cal.2010, 696 F.Supp.2d 1080; Arias v. Amador, E.D.Cal.2014, 61 F.Supp.3d 960 (Vulgar, profane or highly inappropriate words alone do not support a finding that the speech was criminal under California statute prohibiting a person from resisting, delaying, or obstructing a peace officer.) In re Chase C. (App. 4 Dist. 2015) 196 Cal.Rptr.3d 381, 243 Cal.App.4th 107, rehearing denied. (Speech is generally protected by the First Amendment, even if it is intended to interfere with the performance of officer’s duty, provided no physical interference results.) With this in mind, Darren Chaker recommends being respectful.

Personal recommendations of the author are simple: if you see inappropriate conduct by police, record it, do not insult police, or stand close to them as to interfere with their job function. Remember, police have body cameras too, and if there are threats of violence, trying to free a person from custody, or otherwise interjecting oneself which would interfere with police duties, then the arrest you may be recording is your own. On the flipside, you may exonerate a police officer who is wrongfully accused of misconduct.

It is recommended to not let police know you are recording if from a bedroom window, just like how the Rodney King video was made. But if you are on the public sidewalk, make it point to stand 30-50 feet away from police. There is a presumption the person is a threat if standing within 21 feet. See The ‘21-Foot Rule’: How a Controversial Training for Police is Used to Justify Shootings PBS Documentary on this. 

Tactics to Safely Film Police: Overwatch and Secure Video
Darren Chaker advises on tactics for safely filming police. Implementing ‘Overwatch’ – having a third party film from a distance – can provide additional evidence in case of police misreporting. The use of ACLU’s Mobile Justice App or live streaming platforms for recording ensures the preservation of footage.

Recommendations by Darren Chaker: Protecting Your Data: Secure Phone and Legal Rights
Encrypting your phone and using complex passwords are vital for protecting your footage. The Supreme Court’s ruling in Carpenter v. United States reinforces the requirement of a warrant for phone access, highlighting the importance of not consenting to phone searches.

Conclusion by Darren Chaker: Videotaping Police and Your Rights
In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. Legal researcher Darren Chaker emphasizes the importance of understanding and exercising your First Amendment rights. While the focus is not to challenge police but to observe, it’s crucial to be aware of your legal rights in documenting police interactions. Remember, always consult your attorney for legal advice.