Right to Video-Photograph Police First Amendment

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Beverly Hills based First Amendment advocate Darren Chaker notes that it is clearly established law that officers may be filmed while carrying out their official duties. See Fordyce v. City of Seattle, 55 F.3d at 439; see also Adkins v. Limtiaco, 537 Fed. Appx. 721, 722 (9th Cir. 2013). However, it appears common place for people to be harassed or even arrested for merely doing what the First Amendment protects.

Darren Chaker has seen several online videos where the person filming the police offer to show a press pass. There is no reason to allege you have a press pass, but merely state your unfettered right to film police. Identification need not be provided to police since there is no probable cause to believe you are committing a crime. In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), the Court held that a state statute can require a suspect to disclose his or her name in the course of a brief stop, if the detention was based on reasonable suspicion of a crime. Thus, the crime cannot be a failure to identify yourself, but there must an independent crime to be arrested for prior to police demanding identification. This is why it is critically important to not interfere with police or provide an independent basis to get arrested for.

A great LA Times article was written concerning when a person must provide identification. The article states in relevant part, “Do you have to show an ID whenever an official asks for one? No. In California, police cannot arrest someone merely for refusing to provide ID.

In California, as with many other states, the law explicitly states police cannot arrest people who are merely videotaping police. See California Penal Code § 69(b),

“The fact that a person takes a photograph or makes an audio or video recording of an executive 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).” (emphasis added)

Additionally, California Penal Code § 148(g) reads:

“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.”
(emphasis added)

In another case, Gericke v. Begin (1st Cir. 2014) 753 F.3d 1, 7, the court explained the right to film police is clearly within the scope of the First Amendment:

“Protecting that right of information gathering “not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.” Id. at 82-83 (citations omitted). Those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is “police carrying out their duties in public.” Id. at 82. A traffic stop, no matter the additional circumstances, is inescapably a police duty carried out in public. Hence, a traffic stop does not extinguish an individual’s right to film.” (emphasis added)

Other courts have also repeatedly established a person who is merely filming police may not be detained or arrested. See, e.g., McComas, 2017 U.S. Dist. LEXIS 50783, 2017 WL 1209934, at *7 (“A reasonable officer in [defendant’s] position would have known that it is a violation of a constitutional right to harass an individual who is peacefully filming the officer.”); Barich v. City of Cotati, No. 15-CV-00350-VC, 2015 U.S. Dist. LEXIS 142672, 2015 WL 6157488, at *1 (N.D. Cal. Oct. 20, 2015) (“Thus, ‘under the law of this circuit there is and was’ at the time of conduct ‘a clearly established right to record police officers carrying out their official duties.'”) (emphasis added)

Thus, no matter how much intimidation police may interject into a situation – that person has no obligation to identify him/herself or cease filming. The ugly reality is after watching dozens of videos online, is that citizens are pressured to produce identification, often stop filming, are detained, arrested, and even roughed up. It is important if such occurs to the photographer to contact a civil rights attorney without delay since numerous lawsuits have been resolved in favor of the photographer due to the fact it is not against the law to photograph police. See ACLU Article on topic.

The First Amendment was here first and Darren Chaker encourages people to stand on that foundation. Darren Chaker explains a few a few tactful ways you may want to enforce your First Amendment rights:Overwatch: If you, the person filming, believe police will surround, harass, or otherwise intimidate you, have a third-party conduct overwatch. Overwatch is simply having an observer film you from a distance. Overwatch is important since police can take your phone/camera, and write anything they want in their report to justify the action taken. For example, “Subject became hostile, hit me, and I subdued (beat) him/her to effectuate an arrest.” The key to combat this is to (1) do not alert police to the overwatch; allow the officer to testify under oath about what he alleged happened; and (3) then forward a copy of the video showing the officer’s report and testimony are clearly contradicted by video. To add icing to the perjury cake, email the Public Defender who often represent 80-90% of defendants so when/if that officer comes into court, he/she will be impeached with prior false testimony. You have effectively ended that officer’s career since if he/she is not charged with perjury, that officer will always be haunted by the contradicted testimony in any court the officer appears in. The San Diego Public Defender has a database of police officers with past issues of perjury and abuse. See article. Another good option is to film police where you are standing in view of security cameras, such as in the parking lot of a bank, gas station, etc. If something adverse happens, you or your attorney can subpoena the security camera footage to contradict any allegation you were hostile, threatening, attacked an officer, etc. Keep in mind, it is common for security cameras to not work, and that businesses like banks and gas stations often rely on police for help, so do not rule out the video is deleted as a favor to police.

  • Overwatch: If you, the person filming, believe police will surround, harass, or otherwise intimidate you, have a third-party conduct overwatch. Overwatch is simply having an observer film you from a distance. Overwatch is important since police can take your phone/camera, and write anything they want in their report to justify the action taken. For example, “Subject became hostile, hit me, and I subdued (beat) him/her to effectuate an arrest.” The key to combat this is to (1) do not alert police to the overwatch; allow the officer to testify under oath about what he alleged happened; and (3) then forward a copy of the video showing the officer’s report and testimony are clearly contradicted by video. To add icing to the perjury cake, email the Public Defender who often represent 80-90% of defendants so when/if that officer comes into court, he/she will be impeached with prior false testimony. You have effectively ended that officer’s career since if he/she is not charged with perjury, that officer will always be haunted by the contradicted testimony in any court the officer appears in. The San Diego Public Defender has a database of police officers with past issues of perjury and abuse. See article. Another good option is to film police where you are standing in view of security cameras, such as in the parking lot of a bank, gas station, etc. If something adverse happens, you or your attorney can subpoena the security camera footage to contradict any allegation you were hostile, threatening, attacked an officer, etc. Keep in mind, it is common for security cameras to not work, and that businesses like banks and gas stations often rely on police for help, so do not rule out the video is deleted as a favor to police.
  • Secure Video: Alternatively, when you video police, use the ACLU Mobile Justice App. that uploads your video to the ACLU server, thus prevents the video from being destroyed. Another option is to LiveStream your video on FaceBook or YouTube where it is retained. Be sure to not record video on an external SD card since the card can be simply removed.
  • Secure Phone: Be sure to your phone is encrypted and you have a complex password to access it. Often times, you can lock your phone but still continue recording. The United States Supreme Court issued its ruling in Carpenter v. United States, 585 U.S. ____, No. 16-402 (June 22, 2018) requires police to get a warrant to access your phone. If the officer says, “I will get a warrant” encourage him/her to do so! Ultimately, if you are conducting yourself lawfully, filming the police is not against the law and a search warrant cannot be issued for such conduct. Literally, a search warrant cannot be issued to merely get into your phone since it is not on the limited roster of crimes a search warrant may be issued for. See the Los Angeles County District Attorney’s memo on this. Thus, do not fall for the “I will get a warrant” bluff that is aimed at inducing consent.
  • Do Not Consent: Do not consent to allowing police to search your phone. Once you consent, anything on your phone can be used against you. Schneckloth v. Bustamonte,412 U.S. 218, 219 (1973); United States v. Lopez-Cruz, 730 F.3d 803, 809 (9th Cir. 2013); United States v. Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008). As a leading civil rights organization , Electronic Frontier Foundation , puts it – tell police: “I do not want to talk to you. I do not consent to a search. I want to speak to my attorney.” Understand the seasoned officer may craft his request in an artful way to gain consent, such as: I just want to make sure you are not videotaping our undercover cars or officers since that can jeopardize lives. You give police your phone and your videos are deleted. Don’t fall for a ruse. Stand your ground and invoke your rights.
  • Do Not Interfere: Absolutely, do not interfere with the police carrying out his/her duties. Do not speak to the suspect, do not speak to police, or get in the way. Be a silent observer from a safe distance. With today’s technology one need not be in the officer’s face with a camera, but can be across the street and zoom in on where police are. You do not want to give police a reason to say you were interfering with his/her duties and arrest you on that basis.   

“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987). However, Darren Chaker does not endorse or encourage anyone to berate or harass the police. Do not bait police to make you a target. Police do a very tough job. Police should be watched especially in this day and age of police abuse becoming increasing more publicized due to people filming the police. Most police are good people with good intentions, but some are not. However, regardless of what type of police officer you come across, you have the First Amendment right to get your phone out and video how they interact with the public. Videotaping police deters police abuse and often helps police combat false allegations of police abuse where bodycam footage contradicts citizen complaint allegations.

Of course, do not rely on the above for legal advice and only rely on the advice of your own attorney.

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For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, here are a few wins: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.