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Ferguson and the right to photograph police

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AP Photo/Jeff Roberson Protesters march on Nov. 23 in St. Louis, before the grand jury returned a decision. While the…

AP Photo/Jeff Roberson

Protesters march on Nov. 23 in St. Louis, before the grand jury returned a decision.

While the country awaited a grand jury decision in Ferguson, Missouri, in late November, the protests following the death of Michael Brown in August served as an early reminder that members of the press can often be swept up as part of the story they are covering. As journalists vigorously covered the public unrest, many found themselves harassed or placed under arrest simply for engaging in the activity of filming or photographing the police activity around the protests. Some had guns pointed at them, and others were held overnight.

These events, as the Reporters Committee later wrote in a letter to local and state law enforcement groups on behalf of a media coalition, were “anathema to the First Amendment and to journalists everywhere.” Courts have repeatedly held that the right to photograph police in the public performance of their duties is protected by the First Amendment. But it is still a regular occurrence for those who attempt to do so to be the targets of reprisal by the local law enforcement officers they are trying to monitor. Whether deficient training or heat-of-the-moment impulses are to blame, these reactions are almost predictable, and it is imperative that photojournalists know their rights. On the heels of several appellate court decisions and a recent Justice Department proclamation that the right to film the police is guaranteed by the Constitution, these rights have never been clearer.

(The Reporters Committee also released a guide on this topic, “Police, Protesters and the Press,” in 2012.)

Typically, those who wish to sue law enforcement officials over harassment for filming or photographing rely on a federal statute, 42 U.S.C. §1983, which was enacted in 1871 to enforce the 14th Amendment. Section 1983 provides a private cause of action for the violation of constitutional civil rights by government actors who are acting in the scope of their employment.

Media plaintiffs usually sue under Section 1983 alleging violations of their First and Fourth Amendment rights. The First Amendment is implicated because it protects the right to speak on matters of public concern, and courts have widely held that police misconduct is a matter of public concern. The Fourth Amendment is often raised because of the unreasonable searches and seizures that take place when those who film are harassed, arrested, and have their cameras confiscated.

Courts acknowledge that these First Amendment rights can be subject to reasonable time, place, and manner restrictions. Thus, police have the right to protect themselves against actual interference with the performance of their duties.

The government defense that tends to doom many Section 1983 suits concerns qualified immunity. State actors are only liable for violations of constitutional rights that are “clearly established.” If there is no controlling or persuasive authority recognizing the right, the police have qualified immunity against suit under Section 1983 for their actions that violated the plaintiff’s constitutional rights. The right must be established “beyond debate,” and courts examine whether a reasonable person in the government actor’s position would have known that he was violating clearly established rights.

A clearly established right

Several appellate courts that have addressed the issue of whether the right to film the police is protected under the First Amendment have emphatically ruled yes. In Glik v. Cunniffe in 2011, the First Circuit held that “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.” The Glik court pointed to the very brief discussions of other courts regarding the right to show that it was, indeed, “self-evident.” In ACLU v. Alvarez in 2012, the Seventh Circuit likewise held that filming the police should be recognized as a longstanding right. The Ninth Circuit in Fordyce v. City of Seattle, a case involving the filming of police, also recognized a “First Amendment right to film matters of public interest” in 1995.

Yet even with courts’ ringing endorsements, police continue to retaliate against those that film them. Sharp v. Baltimore, a case arising out of an arrest at a race track, illustrates how those filming can face immediate consequences from law enforcement officials, and how police departments in turn can face consequences as a result.

In May 2010, Christopher Sharp was spending the day at Pimlico Race Course in Baltimore, attending the Preakness Stakes horse race. When an intoxicated friend of his was arrested by the Baltimore Police Department, Sharp filmed the arrest with his cell phone. An officer approached him and said, “Do me a favor and take a walk. Now. Do me a favor and turn that off. It’s illegal to videotape anybody’s voice or anything else. It’s against the law in the state of Maryland.” Sharp twice refused when officers asked him to hand over his phone, but finally handed it over when an officer told him he needed to examine and possibly copy the video for use as evidence. When the phone was returned, Sharp found that all his video recordings had been deleted, including not only the two videos of the arrest but at least twenty personal videos as well. Sharp was stunned by the deletion, citing the loss of videos of his son at basketball games and other sentimental moments.

The case fired up First Amendment advocates, with the ACLU coming to Sharp’s defense. But an unequivocally supportive — and surprisingly forceful — statement came from the U.S. Department of Justice. In a statement of interest filed in the case, the DOJ wrote, “The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.” (The Department also sent further guidance for a settlement conference.)

The Baltimore Police Department ultimately settled the case with Sharp for $250,000. The DOJ statement continues to serve as a reminder that the branch of the federal government charged with executing the law of the land believes that the right to film the police is clearly established under the First Amendment.

The need for better training

A rash of recent cases involving filming the police, however, underscores the reality that — until supervisors and courts get involved — whether the photographer gets harassed or arrested is entirely up to the officer at the scene.

Datz v. Milton is illustrative of cases in which a police department ultimately has to answer for its longstanding practice of denying photojournalists access to the areas where other members of the public can observe police activity. The 2012 case, brought in the Eastern District of New York, involved a Suffolk County, Long Island police officer refusing to allow Datz, a professional photographer, to film a scene of police activity from a public sidewalk where other bystanders were watching, and then proceeding to arrest him after Datz moved a distance away to film.

Datz could already recount a plethora of other instances when Suffolk County officers had refused to let him film from public areas, told him they were extending crime scenes so that he would have to leave and then not actually done so, or driven police cars back and forth to obstruct filming. But on July 29, 2011, he found himself actually under arrest merely for doing his job. An officer charged over to him while he filmed on the sidewalk, grabbing his press lanyard and telling him to “go away” but not specifying an alternate location despite Datz’s requests. When Datz drove away and resumed filming 500 feet from the police activity, the same officer drove his squad car directly toward him at high speed, stopping just in front of him. He then confiscated Datz’s camera and arrested him. He was charged with “obstructing governmental administration.”

Among the indignities Datz suffered, including an injured shoulder, was the withholding of the tape in his camera, which contained time-sensitive footage of other events of the day that he had intended to sell for use on that evening’s news. By the time he got the tape back, the footage was useless.

The Suffolk County District Attorney voluntarily dismissed the charge against Datz on August 9, 2011. A suit followed, with Datz ultimately receiving a $200,000 settlement from the police department, as well as a commitment that the department would institute media relations training for its officers and form a media relations committee.

Robert Balin, an attorney at Davis Wright Tremaine who represented Datz, said he and his client were extremely pleased with the settlement, particularly the actions that the police department took in response to the case.

“They changed their policies to specifically recognize that there is a First Amendment right that is held by the public and the press to record police activities that occur in public places,” he said. “Now their rules and procedures prohibit officers from interfering with that right.”

Those new policies, combined with the increased training and awareness among officers of the right, are necessary parts of the solution, Balin emphasized.

“Ultimately it’s not just about winning the case—it’s about changing the culture,” he said.

It is the training component that is critical, said Mickey Osterreicher, general counsel of the National Press Photographers Association.

“It doesn’t really matter whether journalists know what their rights are if police don’t know about or understand or respect those rights,” he said. “Police departments can have policies, but if they don’t have proper training, if they don’t have appropriate discipline when people violate those policies, then the policies are just pieces of paper.”

The road ahead

Osterreicher said he believes that the number of courts recognizing the right to film the police as clearly established has passed a “tipping point.” With widespread acknowledgement of the right, it is possible that increasing numbers of people who are prevented from filming and who are arrested will sue police departments, he said.

A case this year from Texas, Buehler v. City of Austin, is an example of the growing recognition. Antonio Buehler was arrested several times for filming the police during arrests and traffic stops, sometimes violently and with verbal abuse. After he brought suit against the city and the police department, the trial court held that the police could not claim qualified immunity because the right to film the police was clearly established in the Fifth Circuit. It remains to be seen whether the defendants will appeal.

As the tense situation in Ferguson continues to unfold and as the ubiquity of camera phones means that anyone can record, these confrontations will continue. Osterreicher has a number of recommendations for what to do when the police demand that filming stop, including trying to assert one’s rights if the officer seems receptive, asking to speak to a supervisor, asking if there is an alternate location from which to film, keeping the camera rolling during the encounter to document any violations, and working in pairs so the other partner can continue to film.

On a larger scale, Balin said he expects that cases will keep moving forward and more and more appellate courts will recognize the right to film as clearly established. In particular, he said, he hopes the Second Circuit will hear a case soon and clarify the right in that jurisdiction. For now, photographers will have to keep trying to do their jobs in what can be a hostile environment.

“I wish there were fewer Fergusons, but I recognize that for every police department that is starting to do it right, there are still plenty that need to be prodded forward,” Balin said. “These kinds of lawsuits are not going to go away, at least in the foreseeable future.”