From the earliest cave paintings to the Mass Observers of Great Britain, chronicling the everyday has been a preoccupation of humankind.1 And on rare occasions a face in the crowd has captured something extraordinary, such as when Abraham Zapruder filmed the assassination of President John F. Kennedy.2 But in the digital age, people with technology ranging from smartphones to video drones can bear witness to virtually anything.3
Every local resident has the capacity to be a photo journalist. Correspondingly, law enforcement has incorporated dashboard cams4 and now body cameras.5 Thus, the civilian and police videographer are capturing images of street encounters from new angles and at new loggerheads.6 Indeed, this reciprocal surveillance has sparked a constitutional and policy debate over the proper scope of public videotaped information.7
Video capture of police transactions in the public eye can implicate a host of issues.8 To begin with, it registers the optics of accountability, preserves potentially useful evidence for prosecution and defense, and creates a record to protect law enforcement from false allegations.9 Moreover, it entails the civil rights of the videographer, such as freedom from arrest and protection of their recordings from seizure,10 and the privacy interests of police, arrestee, victim, witness, and bystander.11
What is more, a video recording can have a psychological impact on the recorder and the viewer and potentially influence the event being watched.12 Then there are questions about the accuracy and authenticity of digital recordings and the errors common to the collection, preservation and interpretation of such evidence.13 In the end, cameras in the streets will create one more source of proof to be considered along with other evidence in civil rights and criminal proceedings.
This article collects noteworthy news, litigation, and legal analyses concerning civilians and journalists photo-documenting the activities of law enforcement as well as police use of cameras to record their work.
ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012), cert. den., Alvarez v. ACLU, 133 S. Ct. 651 (2012)
“We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here. The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free-speech and free-press guarantees.” See also Supreme Court Gives Nod to Citizens Who Record Police, Amidst Reports of Multiple Arrests, ABA J Law News Now, Nov. 26, 2012.
Crago v. Leonard, No. 2:13-cv-531 (E.D. Cal. Aug. 5, 2014)
“The complaint alleges that defendant violated plaintiff’s rights under the First Amendment when he took her laptop away after she informed him that she was recording the search of her residence. ECF No. at 2. As early as 1995, the Ninth Circuit has recognized a “First Amendment right to film matters of public interest.” Fn 4. Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). Other circuits have similarly held that the First Amendment protects an individual’s right to record police officers in the course of carrying out their duties. See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2001) (“The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [the First Amendment].”); Gilles v. Davis, 427 F.3d 197, 212 n.14 (3rd Cir. 2005) (“[V]ideotaping or photographing the police in the performance of their duties on public property may be protected activit[ies]”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property,” including the right “to photograph or videotape police conduct.”).
Footnote 4. The Ninth Circuit, in an unpublished case, has also held that there is a clearly established constitutional right to photograph an accident scene during a police investigation. Adkins v. Limtiaco, 537 F. App’x. 721, 722 (9th Cir. 2013) (citing City of Houston v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987); Fordyce, 55 F.3d at 439).”
Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014)
“This case raises an important question about an individual’s First Amendment right to film a traffic stop by a police officer. Carla Gericke attempted to film Sergeant Joseph Kelley as he was conducting a late-night traffic stop. Shortly thereafter, she was arrested and charged with several crimes, including a violation of New Hampshire’s wiretapping statute. Gericke was not brought to trial. She subsequently sued the Town of Weare, its police department, and the officers who arrested and charged her, alleging in pertinent part that the wiretapping charge constituted retaliatory prosecution in violation of her First Amendment rights.
In this interlocutory appeal, the defendant-appellant police officers challenge the district court’s order denying them qualified immunity on Gericke’s First Amendment retaliatory prosecution claim. Based on Gericke’s version of the facts, we conclude that she was exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area. We therefore affirm.”
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)
“Simon Glik was arrested for using his cell phone’s digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts’s wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. S 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.
In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik’s constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause. We therefore affirm.”
Gregory v. Burnett, 577 Fed. Appx. 512 (6th Cir. 2014)
“In Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007), also a First Amendment-retaliation case, the words and conduct of the person arrested were captured on a video, and when viewed in the light most favorable to the plaintiff, revealed the absence of probable cause to make the arrest. This court recognized that even with a recording, there can be a dispute over material facts that a jury should decide, such as a feud between the police department and the plaintiff’s family. Here, too, the video and the testimony present an issue of fact. In Reichle 132 S. Ct. at 2093, the Supreme Court reversed the denial of qualified immunity on the basis that “at the time of [the plaintiff’s] arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment.” Here, however, because the facts taken in the light most favorable to Gregory show an absence of probable cause, we follow Leonard, supra, and conclude that summary judgment is unwarranted. We therefore vacate the judgment and remand for further proceedings.”
Ramos v. Flowers, 429 N.J. Super. 13, 56 A. 3d 869 (N.J. App. Div. 2012)
“Ramos is a documentary filmmaker. In 2006, he was working on a project about the emergence of gangs in Trenton. Flowers is a police officer employed by the Trenton Police Department. Ramos contends that he had five encounters with the Trenton Police during the time he was filming the activities of various members of the “Sex Money Murder” Bloods sect, one of the largest Bloods gang units in Trenton. Three of the encounters involved Flowers. He alleges that Flowers’ actions during those three encounters interfered with his constitutional rights to free speech and assembly, as well as his right to be free from unlawful police search and seizure. . . . A documentary about a subject of public interest, such as urban gangs, is a form of investigative journalism, and the process of preparing such a documentary is a form of news gathering. For that reason, those activities are protected by the First Amendment to the United States Constitution and by the New Jersey Constitution, most particularly Article I, paragraph 6.”
LITIGATION, LEGISLATION AND POLICY STATEMENTS
A10176: Relates to Videotaping Uniformed Personnel in the Course of Carrying Out Their Professional Duties (NYS Assembly Aug. 20, 2014)
“Section 1. Amends the civil rights law by adding a new section 79-o. Establishes the right to videotape uniformed personnel when such personnel are carrying out their duties. Defines uniformed personnel as police, firefighters, emergency technicians and paramedics. Provides for the recovery of damages in the amount of $25,000 per violation.”
Bandele v. City of New York (Civil Rights Litigation Clearinghouse)
“On April 26, 2007, three community activists filed a lawsuit in the U.S. District Court for the Southern District of New York under the Civil Rights Act of 1871, U.S.C. 42 S 1983, and state law against the City of New York and two New York City Police Department police officers. The plaintiffs, represented by the Center for Constitutional Rights and private counsel, asked the court for both declaratory and injunctive relief.
Specifically, the plaintiffs alleged that the defendant officers violated their rights under the First, Fourth and Fifth Amendments when they arrested plaintiffs while the plaintiffs were recording the arrests of two other people.
According the complaint, all charges against the plaintiffs were dropped, but only after they were held in jail overnight and required to make at least 10 court appearances in relation to the incident. The plaintiffs also brought a Monell claim, alleging that the police department’s policies encouraged violation of the plaintiffs’ constitutional rights.
On September 19, 2008, the District Court (Judge Miriam Cedarbaum) accepted the parties’ Stipulation of Settlement and Dismissal. As part of the settlement agreement, each of the three plaintiffs received $15,000 and fees from the defendants in exchange for dismissal of their complaint. The defendants did not admit any violation of the plaintiffs’ rights.” See also Center for Constitutional Rights.
New Settlement Protects Right to Film Police in Suffolk County, NYCLU, June 18, 2014
“In a settlement approved late Tuesday by the Suffolk County Legislature, the Suffolk County Police Department has agreed to annually train and test all police officers on the First Amendment right of the public and the media to observe, photograph and record police activity in public locations.”
Sharp v. Baltimore City Police Department (ACLU Maryland)
“Concerned that the Baltimore City Police Department routinely violates the First Amendment by threatening citizens who try to photograph or record police encounters, the ACLU of Maryland filed a lawsuit against BPD on behalf of Christopher Sharp, a man whose personal videos, including many of his young son, were deleted after he filmed BPD officers roughing up a female friend of his in the Clubhouse at the 2010 Preakness Stakes. Video taken of the beating by another observer can be found on YouTube.
The lawsuit details how Sharp was detained and harangued by police officers after he recorded the police incident, with the officers demanding that he surrender his cellphone as “evidence”. Sharp politely declined, but police continued to demand that he give up his phone. Fearing arrest, he finally handed over the phone to an officer. The police then destroyed the beating videos and all other videos it contained – about two dozen in all – before returning the phone to Sharp.
The Sharp case was pivotal in spurring the U.S. Department of Justice (DOJ) to issue an unprecedented legal statement in 2012 on citizens’ rights to record police actions. The DOJ guidance to law enforcement agencies across the country affirmed that citizens have a constitutional right to record police officers publicly performing their official duties. Following the DOJ release, the ACLU contacted Maryland law enforcement agencies to notify them, head off future problems, and promote the protection of the rights of citizens as well as public safety.”
Sharp v. Baltimore City Police Department: Guidance Letter (DOJ)
“Judge Paul W. Grimm scheduled a settlement conference in Christopher Sharp v. Baltimore City Police Department, et. al. for May 30, 2012. While we take no position on Mr.Sharp’s claim for damages against the individual defendants, it is the United States’ position that any resolution to Mr. Sharp’s claims for injunctive relief should include policy and training requirements that are consistent with the important First, Fourth and Fourteenth Amendment rights at stake when individuals record police officers in the public discharge of their duties. These rights, subject to narrowly-defined restrictions, engender public confidence in our police departments, promote public access to information necessary to hold our governmental officers accountable, and ensure public and officer safety.
The guidance in this letter is designed to assist the parties during the upcoming settlement conference. It specifically addresses the circumstances in this case and Baltimore City Police Department’s General Order J-16 (“Video Recording of Police Activity”), but also reflects the United States’ position on the basic elements of a constitutionally adequate policy on individuals’ right to record police activity.”
Sharp v. Baltimore City Police Department: Statement of Interest of the United States (DOJ)
“This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative. 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.”
BOOKS, REPORTS AND STUDIES
Body-Worn Cameras for Criminal Justice: Market Survey (NIJ 2014)
“This market survey report aggregates and summarizes information on commercial BWCs to aid criminal justice practitioners considering planning, acquisition and implementation of the technology in their agency. In 2011, a brief market survey reference was published by the National Institute of Justice (NIJ) Sensor, Surveillance and Biometric Technologies Center of Excellence (SSBT CoE), Body Worn Camera Information Sheet (http://goo.gl/rSWrcV).The following year, a report was published that highlighted topics for agencies to consider while pursuing BWC implementation, A Primer on Body-Worn Cameras for Law Enforcement (https://www.justnet.org/pdf/00-Body-Worn-Cameras-508.pdf). This report updates product information in those earlier offerings.”
Cop Watch: Spectators, Social Media, and Police Reform (APA 2012)
“In Cop Watch: Spectators, Social Media, and Police Reform, renowned social psychologist Hans Toch takes stock of the vast changes in police procedures that have occurred over the last half-century by examining the evolving role of spectators to police–citizen interactions. This sympathetic and informed analysis details the concerns of both disgruntled citizens and unsettled police. Their interactions are played out on a broad stage, from 1960s riots and Kerner Commission findings, to 2011 accusations of police brutality in Seattle. In this unflinching examination of the power of the crowd and society to shape police practice, Toch provides a uniquely compelling look at the struggles and complexities of policing in a volatile world.”
Cost of Improper Procedures: Using Police Body Cameras to Reduce Economic and Social Ills (NYC Public Advocate 2014)
“Public Advocate James’ proposed initiative would begin with a pilot program to equip officers with body-worn cameras in precincts with high rates of crime and complaints of police misconduct with the strict stipulation to record every stop in which an officer is involved. Long-term, the initiative would expand to include all of the City’s police precincts. Ultimately, this initiative aims to balance justice and civil rights with the need to maintain law and order. The information below details complaints of police misconduct, how those complaints do not often bring about justice and the economic impact of police misconduct.”
Filming the Watchmen: Why the First Amendment Protects Your Right to Film the Police in Public Places (Heritage Foundation 2014)
“Police are relying on state wiretapping statutes to arrest citizens who film police in public. The federal circuit courts that recognize a First Amendment right to film police in public places where the citizen-recorder has a right to be present are in line with Supreme Court precedent. While the exercise of the right to film police is subject to reasonable time, place, and manner restrictions, police cannot be allowed to suppress speech at the core of the First Amendment’s protections. State wiretapping statutes that prevent citizens from filming police officers in such places without any further justification violate citizens’ First Amendment rights.”
Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned (COPS 2014)
“Drawing upon feedback from the conference, the survey results, and information gathered from the interviews and policy reviews, PERF [Police Executive Research Forum] created this publication to provide law enforcement agencies with guidance on the use of body-worn cameras.”
Know Your Rights: Photographers (ACLU 2014)
“Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties. Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places, and harassing, detaining and arresting those who fail to comply.”
Police Body-Mounted Cameras: With Right Policies in Place, a Win for All (ACLU 2013)
“For the ACLU, the challenge of on-officer cameras is the tension between their potential to invade privacy and their strong benefit in promoting police accountability. Overall, we think they can be a win-win—but only if they are deployed within a framework of strong policies to ensure they protect the public without becoming yet another system for routine surveillance of the public, and maintain public confidence in the integrity of those privacy protections. Without such a framework, their accountability benefits would not exceed their privacy risks.”
Police Officer Body-Worn Cameras: Assessing the Evidence (OJP Diagnostic Center 2014)
“This publication provides a review of the available evidence on officer body-worn cameras. The goal is to provide a comprehensive resource that will help law enforcement agencies to understand the factors they should consider to make informed decisions regarding the adoption of body-worn camera technology.”
Primer on Body-Worn Cameras for Law Enforcement (NIJ 2012)
“To mitigate the lack of procedural or technical standards, the National Institute of Justice(NIJ) Sensor, Surveillance, and Biometric Technologies (SSBT) Center of Excellence (CoE)has prepared a primer to aid in the use of BWCs [body-worn camera systems] in law enforcement. This report provides an introduction to BWCs and highlights issues and factors that law enforcement organizations should consider prior to and during implementation. “
Recording the Police: Is Citizen Journalism against the Law? (CATO Institute 2010)
“Should it be illegal to record the police? Several high-profile cases of police brutality have been exposed by citizens who recorded police actions with cell phones. Yet some state wiretapping laws, written before the age of ubiquitous recording devices, prohibit recording these events and then further criminalize the publication of the recordings on the Internet. Does the First Amendment protect citizen journalism, or do police agents have a right to privacy while performing public duties? “
Research and Best Practices from the IACP Study on In-Car Cameras (COPS 2002)
“In 2002, the IACP was commissioned by the United States Department of Justice, Office of Community Oriented Policing Services (COPS) to evaluate the impact of police in-car camera systems on state police and highway patrol agencies. The purpose of the study was to develop a Best Practices Guide for selection and acquisition of in-car camera equipment and to provide an updated Model Policy for the use of in-car cameras. “
Self-Awareness to Being Watched and Socially-Desirable Behavior: A Field Experiment on the Effect of Body-Worn Cameras on Police Use-Of-Force (Police Foundation 2013)
“We have tested whether police body-worn cameras would lead to socially-desirable behavior of the officers who wear them. Individualized HD cameras were “installed” on the officers’ uniforms, and systematically-recorded every police-public interaction. We randomly-assigned a year’s worth of police shifts into experimental and control shifts within a large randomized-controlled-field-experiment conducted with the Rialto-Police-Department (California). We investigated the extent to which cameras effect human behavior and, specifically, reduce the use of police force. Broadly, we have put to test the implication of self-awareness to being observed on compliance and deterrence theory in real-life settings, and explored the results in the wider context of theory and practice.”
Systematic Observation of Public Police: Applying Field Research Methods to Policy Issues (DOJ 1998)
“This report describes systematic social observation (SSO), a field research method used to study police. This method has shown promise in answering many of the questions regarding how police work is conducted today. It was developed originally to guide field research on policing in the 1960s and 1970s. Most recently, SSO was employed by the Project on Policing Neighborhoods (POPN) to study police behavior in Indianapolis, Indiana, and St. Petersburg, Florida, and other research projects use it as well. The report describes the method and explores SSO’s potential as a field research tool in a variety of venues. “
Video Evidence: A Law Enforcement Guide to Resources and Best Practices (BJS 2014)
“With the rapid growth and improvements in video technology used in government, business, and personal applications, law enforcement leaders are recognizing the importance of improving their agencies’ capabilities of utilizing that video evidence to solve crimes. Despite the growing availability of video evidence, many state and local law enforcement agencies have indicated that gathering and analyzing video information can be very difficult. Video evidence can come from a multitude of different devices, with differing systems, formats, players, and technology, yet an agency’s ability to properly secure, catalog, store, and maintain its evidentiary value and integrity is critical to a professional police organization. Clearly, guidance and best practices are needed to improve public safety agencies’ ability to appropriately utilize and manage video data. The purpose of this resource is to provide answers to straightforward common questions that law enforcement officers, or the agencies they represent, may have regarding properly securing, collecting, storing, and analyzing video by directing them to valuable tools and resources from experts in the field.”
LAW REVIEWS AND SCHOLARLY JOURNALS
Cell Phones, Police Recording, and the Intersection of the First and Fourth Amendments, 63 Duke L.J. 735 (2013)
“In a recent spate of highly publicized incidents, citizens have used cell phones equipped with video cameras to record violent arrests. Oftentimes they post their recordings on the Internet for public examination. As the courts have recognized, this behavior lies close to the heart of the First Amendment.
But the Constitution imperfectly protects this new form of government monitoring. Fourth Amendment doctrine generally permits the warrantless seizure of cell phones used to record violent arrests, on the theory that the recording contains evidence of a crime. The Fourth Amendment inquiry does not evaluate a seizing officer’s state of mind, permitting an official to seize a video for the very purpose of suppressing its contents. Moreover, Supreme Court precedent is typically read to ignore First Amendment interests implicated by searches and seizures.
This result is perverse. Courts evaluating these seizures should stop to recall the Fourth Amendment’s origins as a procedural safeguard for expressive interests. They should remember, too, the Supreme Court’s jurisprudence surrounding seizures of obscene materials – an area in which the Court carefully shaped Fourth Amendment doctrine to protect First Amendment values. Otherwise reasonable seizures can become unreasonable when they threaten free expression, and seizures of cell phones used to record violent arrests are of that stripe. Courts should therefore disallow this breed of seizure, trusting the political branches to craft a substitute procedure that will protect law-enforcement interests without doing violence to First Amendment freedoms.”
Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981 (2009)
“This Note will initially investigate the history and rationale behind federal and Massachusetts anti-wiretapping laws, including the privacy issues raised in the Hyde opinion. The Note will then chronicle society’s burgeoning distrust of police officers and the evolution of police practices in response to the development of recording technology. This Note will also discuss the impact of recordings on civil rights litigation, police training, and police misconduct. Next, the Note will introduce the First Amendment’s guarantee of the public’s right to gather and publish information on matters of public concern. Finally, this Note will analyze the pros and cons of surreptitious recordings of police by distinguishing secret recordings from plain view recordings in consideration of advancing modern technology and conclude that society’s right to monitor public officials far exceeds police officers’ expectation of privacy.”
Confirmation of a Catch-22: Glik v. Cunniffe and the Paradox of Citizen Recording, 63 Fla. L. Rev. 1549 (2011)
“The essential holding of Glik v. Cunniffe establishes that the First Amendment of the U.S. Constitution protects a citizen’s right to film law enforcement officers in a public space, and it further conveys that arresting a citizen for disobeying a state wiretap statute by recording a law enforcement officer in a public space violates that citizen’s Fourth Amendment right to be free from unreasonable seizure. This Comment argues that, in situations involving citizen recording of law enforcement official conduct, the court’s holding merely identifies an incongruity in the practical application of the First and Fourth Amendments and fails to offer any constructive guidance to citizens unsure of their right to record.”
Crossing Lenses: Policing’s New Visibility and the Role of ‘Smartphone Journalism’ as a Form of Freedom-Preserving Reciprocal Surveillance, 14 U. Ill. J.L. Tech. & Pol’y 59 (2014)
“Citizens recording police, a form of action that has been termed “sousveillance” (surveillance from underneath) or the “participatory panopticon,” has become increasingly common in recent years. Citizen media can have a substantial impact on policing and police image management – and thus effect public perceptions of police legitimacy. On the other hand, police departments are increasingly utilizing sophisticated visual surveillance technologies, such as officer-mounted wearable cameras, to document police-citizen encounters. In some states, eavesdropping statutes have been applied against citizens attempting to record encounters with police officers, often while these same statutes contain exemptions for officer-initiated recordings. Courts have begun to weigh in on the legal rights of citizens documenting police action – and the constitutionality of the state eavesdropping laws that prohibit such conduct – and have generally begun to recognize a First Amendment constitutional right to film police in public spaces. However, the continued proliferation of recording devices and smartphone applications designed to allow citizens to covertly record encounters with police officers in efforts to hold public officials accountable put some users (perhaps even unwittingly) at serious legal risk. This situation presents a distinct problem – a problem of one-sided surveillance power and limited transparency that potentially threatens the Constitutional rights and freedoms of American citizens. This paper examines, theoretically, the role that citizen media should play as a liberty-preserving form of reciprocal transparency, what forms of respect ought to be owed by camera-wielding citizens to the police officers and other subjects of their recordings in public spaces, and what moral and legal obligations citizen journalists may have (or may not have) to respect and obey wiretapping laws that prohibit recording in public spaces without all-party consent.”
Due Process Right to Record the Police, 89 Wash. U. L. Rev. 1203 (2012)
“Do citizens have a right to record the actions of law enforcement officers? This topic has been the subject of considerable discussion, and no small degree of litigation, in recent years. The increase in litigation is driven by dramatic improvements in camera technology, which allow individuals to record and share images in ways that were previously available, if at all, only to members of large media organizations.
Most of the discussion and litigation has revolved around the question of whether there is a First Amendment right to record police officers in public. In the recent First Circuit case of Glik v. Cunniffe, for example, passerby Simon Glik caught sight of three police officers arresting a young man. Hearing a passerby shout that the officers were hurting the man, Glik turned on his cell phone and began capturing video. The police officers objected to being recorded, arrested Glik and charged him with violating the state’s “wiretap” law by recording them without their consent, and seized his camera and memory chip in the process as evidence. The First Circuit held that the right to record police officers in public is a “clearly established” part of the First Amendment’s protections, and held the officers were not entitled to qualified immunity.
Though the issue has not yet reached the Supreme Court, it seems safe to say that the case for First Amendment protection regarding photos and video of law enforcement officers in public is quite strong, and is in the process of being resolved. This Commentary, however, argues that independent of any First Amendment right, there is also a due process right to record the actions of law enforcement, and that this right applies even when the interaction takes place in private, and not in public places. This question of a due process right to record the police has not yet produced the degree of attention and litigation that public recording has, but the growth of inexpensive recording equipment and its inclusion in smart phones ensures that such attention and litigation are sure to be forthcoming.”
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 (2012)
“This Comment focuses on the problems of the Illinois Eavesdropping Act, specifically as it relates to the recording of police where there is no expectation of privacy. Part I will: (1) introduce how the current law is utilized today; (2) define the elements of the Illinois Eavesdropping Act; (3) provide a history of the statute and its enforcement; and (4) relay recent trends in technology noting how easy it is to violate the Act. Part II will: (1) discuss the legislative intent from the time of the enactment of the original statute and its current language; (2) highlight exemptions provided in the Act; (3) compare the Illinois Act to other states with similar statutes; (4) provide specific instances of the prosecution of eavesdropping; and (5) give arguments for and against the statute. Part III will propose ways to amend the Illinois statute to allow the recording of police officers performing their duties in public. Finally, Part IV will summarize the Comment and conclude that the current Illinois Eavesdropping Act is unconstitutional and must be amended to allow the recording of police officers performing duties in public where no expectation of privacy exists.”
Knowledge Is Power: The Fundamental Right to Record Present Observations in Public, 54 Wm. & Mary L. Rev. 1409 (2013)
“Part I of this Note evaluates the formal intrusion of state authority on the right to record: recording statutes. Part II assesses the current state of litigation regarding the right to record. By the conclusion of these two Parts, this Note will have shown that the government is restraining the right to record and that the current legal paradigms are insufficient to truly provide protection. To this end, Part III engages in a Fourteenth Amendment substantive due process analysis of the right to record, ultimately concluding that such a right is fundamental and therefore protected under substantive due process jurisprudence. “
Need for Additional Safeguards Against Racist Police Practices: A Call for Change to Massachusetts & Illinois Wiretapping Laws, 34 B.C. J.L. & Soc. Just. 195 (2014)
“Police misconduct is still prevalent throughout the United States. Unfortunately for members of minority communities, this misconduct often comes in the form of racially discriminatory police practices. In many cases, such practices are deeply rooted in the police department’s culture. It is imperative that all citizens are equipped with every possible safeguard from such abuse at the hands of the police. In Massachusetts and Illinois, however, wiretapping and eavesdropping laws prevent people from employing one such safeguard that has proven to help change unconstitutional police practices. The safeguard that those laws criminalize is the ability to surreptitiously record on-duty police. This Note recommends that state legislatures in Massachusetts and Illinois create exceptions to their wiretapping and eavesdropping laws so as to allow surreptitious recording of on-duty police officers.”
Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance, 87 Washington L. Rev. 93 (2012)
“Spurred by civil rights investigations, police departments across the nation, including in Washington State, are engaging in structural reform bargaining and collaborative design of institutional reforms. Often before any complaint is filed in court or a judge makes any findings of unconstitutionality, police — and the groups threatening to sue the police — are cooperating to fashion remedies for the biggest concerns that have shadowed the law of criminal procedure, such as excessive force and the disproportionate targeting of people of color. Prominent scholars have expressed concern over settlement of civil rights suits outside the arena of the courtroom and without legal clarification. This Article argues, however, that bargaining in the shadow of law and outside the courthouse may yield smarter and farther-reaching reforms and remedies based on data-driven surveillance than could be achieved through litigation and judicial decision.
This Article argues that the remedies being fashioned “off the books” — that is, outside the doctrine in the case law reporters — offer important insights for the future of police governance and reform. The primary engine of police regulation — the exclusionary rule, which deters rights violations through the remedy of exclusion of improperly obtained evidence — is increasingly eroding and becoming the last resort rather than first instinct. The question becomes: what regulatory and remedial model should arise to fill the vacuum? The Article contends that a promising paradigm being refined by structural reform bargaining is regulation by data-driven surveillance — what this Article dubs “panopticism for police.” Panopticism is efficient internalized regulation by surveillance. The term comes from the metaphor of Jeremy Bentham’s Panopticon, in which prisoners in a state of perfect visibility positioned around an opaque watch tower self-regulate because at any time the guard may be watching. The goal of police panopticism is leveraging data-driven surveillance from multiple institutional vantages. The state of “conscious and permanent visibility” reduces monitoring and remedial costs and triggers self-regulation and institutional culture change.”
Orwell’s Vision: Video and the Future of Civil Rights Enforcement, 68 Md. L. Rev. 600 (2009)
“The future of the enforcement of civil rights and civil liberties is linked to video. The proliferation of recording technology enables everyone – law enforcement, suspects, and bystanders – to record police-public encounters on the streets and in the stationhouse. The result is a balance of power in which all sides can record most police-public encounters – Big Brother is watching the public, but the public is able to watch Big Brother. The effect of this balanced proliferation of technology is to place video (and audio) recording at the heart of much modern civil-rights litigation and the enforcement of constitutional liberties.
Video plays two roles in civil-rights enforcement, one at the back end and one at the front end of constitutional disputes arising from encounters between police and members of the public. At the back end is the question of what role those recordings play in enforcing constitutional rights and remedying constitutional violations captured on audio and video – as evidence in constitutional litigation (at trial and during pre-trial processes) under S 1983 and its federal equivalent, and as the basis for non-litigation remediation of any constitutional misconduct by government officials, such as settling lawsuits, disciplining offending officers, and creating or altering government policies to avoid similar misconduct in the future. Back-end use of video for civil-rights enforcement is complicated by two related considerations. First, film and literary theory show that it is a myth that video evidence is an unambiguous, objective, conclusive, singular, and clear reproduction of reality; in fact video evidence must be interpreted and construed (as with all evidence) and what a piece of video evidence means or signifies depends on who is watching, perceiving, and interpreting. Second the path breaking Harvard Law Review study by Dan Kahan, Dave Hoffman, and Dan Braman shows that video evidence is uniquely ripe for the effects of what they label cultural cognition, where the viewer’s interpretation or the message she draws will be highly contextualized and individualized and likely affected by a viewer’s identity-defining cultural characteristics. These insights together demand a level of caution – a degree of judicial humility in how certain they should be about what they (believe they) understand from the recording and the appropriate legal and policy steps to take in response. Courts must not allow misunderstandings about video to expand the use of summary judgment to pull a case from the jury; it is for the jury to interpret video and decide video’s meaning. Government policy makers and lawyers should be similarly cautious in using video in making non-litigation remedial decisions, especially in disciplining officers and settling litigation.
The front-end question is whether the First Amendment provides the people a liberty to record such events in public spaces, to be the source of video evidence of police misconduct that will be used to resolve the underlying constitutional dispute. The answer to this question must be “yes,” in order to maintain that balance of power in availability and control of video evidence. Video still plays, and as technology advances increasingly will play, a substantial role in civil rights enforcement. Government therefore cannot have a monopoly on the ability to record police-public encounters.”
Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335 (2011)
“These clashes between image capture and attempted suppression are typical, but hardly exhaustive. In the next decade, the proliferation of digital visual capacity will regularly require legal decision makers to come to grips with the status of pervasive image capture under the First Amendment. This Article commences the task. I [Seth F. Kreimer] begin by parsing the technological trends that have set the stage for pervasive image capture as a social practice and proceed to sketch the emerging ecology of visual memory and discourse. I then canvass legal developments that threaten to shadow the promise of the new medium and discuss their proper analysis under the First Amendment. I argue against claims of earlier analysts that the process of recording images constitutes unprotected action. In today’s world, personal image capture is part of a medium of expression entitled to First Amendment cognizance. I close with an initial account of the First Amendment protections of pervasive image capture.”
Picture This: Body-Worn Video Devices (Head Cams) as Tools for Ensuring Fourth Amendment Compliance by Police, 43 Tex. Tech L. Rev. 357 (2010)
“A new technology has emerged with the potential to increase police compliance with the law and to increase officers’ accountability for their conduct. Called “body worn video” (BWV) or “head cams,” these devices are smaller, lighter versions of the video and audio recording systems mounted on the dash boards of police cars. These systems are small enough that they consist of something the size and shape of a cellular telephone earpiece, and are worn by police officers the same way. Recordings are downloaded directly from the device into a central computer system for storage and indexing, which protects them from tampering and assures a defensible chain of custody. This article explores the good that BWV can do for both the police and members of the public, particularly how these recordings might play a role in assuring that officers comply with Fourth Amendment search and seizure rules. Field tests of BWV in Britain have shown that police used the devices to keep records and record evidence, and that the devices were a uniquely effective bulwark against false complaints. Coupled with a requirement that every citizen encounter involving a search or seizure be recorded, and a presumption that without a recording the factfinder must draw inferences in favor of the defendant, BWV can help resolve disputes over search and seizure activities, and give the public a heretofore unattainable degree of assurance that police officers enforcing the law obey it as they do so. While BWV is certainly no panacea, and presents significant issues of tampering and reliability, it can help bring accountability and rule following to an aspect of police behavior that has largely proven resistant to it.”
Police Privacy in the iPhone Era? The Need for Safeguards in State Wiretapping Statutes to Preserve the Civilian’s Right to Record Public Police Activity, 9 First Amend. L. Rev. 487 (2011)
“The advent of iPhones, Blackberries, and other ubiquitous cellular devices instantly capable of capturing audio and video recordings has led to increased publicity of police misconduct, and a rise in the admission of evidence, inculpatory and exculpatory, gathered by “citizen journalists,” ordinary bystanders, or victims themselves. The probative value of such “iPhone evidence” and its public utility in exposing police abuses cannot be understated. However, a handful of states have criminalized the mere gathering of such videos under state wiretapping statutes that prohibit a broad range of nonconsensual recording, even of police officers in their public capacities. This Paper argues that the right of citizens to openly or surreptitiously record police officers performing their public duties, without fear of punitive and retaliatory prosecution, must be expressly safeguarded in state wiretapping statutes. This protection is rooted in background principles of the Fourth Amendment, which militate against conferral of privacy rights for public police actions; the First Amendment, which protects the right of the public to receive information and concomitantly the right to record police; and other salient public policy considerations. A Table of State Authorities, summarizing the relevant characteristics of all state wiretapping laws, and the federal counterpart, is also provided.”
Policing the Police: Freedom of the Press, the Right to Privacy, and Civilian Recordings of Police Activity, 80 Geo. Wash. L. Rev. 274 (2011)
“In recent years, the proliferation of miniature recording devices and free video-sharing websites has led to a dramatic increase in citizen journalism. The effect of this development is clearest in the context of civilian recordings of police activity, particularly in instances of police misconduct. To protect police privacy and safety, several states have responded by prosecuting civilian recorders under state wiretapping laws. However, states’ reliance on wiretapping laws in this context is misplaced. Because an on-duty police officer’s right to privacy is necessarily diminished, it should generally be outweighed by a civilian’s First Amendment right to freedom of the press–irrespective of whether the police officer being recorded is engaging in misconduct at the time.
To reconcile the countervailing constitutional rights and policy interests at stake, this Note proposes a legislative amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, also known as the federal wiretapping law. The Amendment provides that an on-duty police officer’s oral communications may be lawfully recorded unless the fact or method of recording creates or significantly exacerbates a substantial risk of imminent harm to the officer, other persons, or national security. The proposed amendment remedies the constitutionally defective status of state wiretapping laws by serving three equally important objectives: (1) protecting civilians’ First Amendment free press right to record police activity, (2) protecting police officers’ privacy and safety interests when the unique circumstances so demand, and (3) ensuring uniformity and resolving ambiguity among and within the states in this highly controversial area.”
Prior Restraint and the Police: The First Amendment Right to Disseminate Recordings of Police Behavior, 2014 U. Ill. L. Rev. 311
“Freedom of speech under the First Amendment once again is in jeopardy – this time, in the form of unconstitutional prior restraints on personal video recordings. In the age of smartphones and media-sharing services like YouTube and Facebook, video recording and uploading or distributing has become a natural – and even expected – form of communication. It is commonplace that people record trivial, everyday moments, and, it remains routine for people to record noteworthy events or occurrences. In a certain sense, countless media users and sharers around the country have become the functional equivalents of journalists reporting and commenting on all aspects of life and society. Thus, in the wake of a growing public disillusionment regarding law enforcement and the criminal justice system, people have begun video recording police behavior as the officers are acting in the public discharge.
Such videography has not existed without pushback from law enforcement. In response to these civilian-made video recordings, many police officers confiscate the video recording devices and/or destroy the files containing the recordings. This type of police interference has brought with it a storm of controversy. The debate centers on whether personal video recording of police conduct is “speech” that qualifies for First Amendment protection, and if so, whether confiscating and/or destroying the videos before their dissemination amounts to an unconstitutional prior restraint on speech – the most serious incursion of one’s First Amendment speech freedom.
This Note ultimately argues that destroying an individual’s video recording before the individual has the chance to disseminate it does indeed impose an unconstitutional prior restraint on speech. In arriving at this conclusion, this Note analyzes: (1) whether video recordings of police constitute speech, (2) whether the state can offer independent justifications for the restraint on speech, and (3) whether any exceptions articulated in prior restraint jurisprudence justify the destruction of the recordings. In addition to its recommendation that police officers’ confiscation and/or destruction of civilian-made videos be formally declared a prior restraint, this Note offers two suggestions to prevent the restraint from occurring: (1) require police to obtain warrants before seizing or destroying civilian-made video recordings, and (2) install a supervisory level of review to help curtail this form of prior restraint on speech.”
Qualified Immunity and the First Amendment Right to Record Police, 22 B.U. Pub. Int. L.J. 243 (2013)
“This draft article explores Pearson v. Callahan, 129 S. Ct. 808 (2009), in the context of recent nationwide litigation over the First Amendment right to record police officers in public. Pearson v. Callahan gives judges considering a qualified immunity defense to a civil rights lawsuit the discretion to never reach the merits of the lawsuit, deciding only that the right is not “clearly established.” The Court’s opinion in Pearson uprooted Saucier v. Katz, 533 U.S. 194 (2001), which required courts to address the merits before deciding whether a defendant is entitled to qualified immunity. The doctrinal shift from Saucier to Pearson coincides with an increase in civil rights litigation nationwide concerning the First Amendment right to record police officers in public. Two recent Circuit Court cases, Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) cert. denied, 133 S. Ct. 651 (U.S. 2012), and Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), have affirmed such a right. While the First and Seventh Circuits have laudably addressed the merits of whether the right exists, all other circuits to address the issue have decided only on immunity grounds, i.e. whether the right is “clearly established.” The focus on immunity has a chilling effect on free speech, in particular the role of citizens to oversee law enforcement officials. The article calls for a return to Saucier’s merits-first adjudicatory model in First Amendment civil rights cases to avoid chilling such protected speech.”
Right to Record Police in Connecticut, 30 Quinnipiac L. Rev. 385 (2012)
“There is a nationwide culture-clash between police and citizen-recorders: citizens who desire police accountability on the one hand, and police who must maintain order on the other. More and more Americans, using now ubiquitous cell phone cameras, can document police conduct. Even though these encounters are on the rise, the law governing our right to record police in their everyday duties is not clear. Those many officers who intend to act with dignity and decorum, to serve and to protect, need to know the rules. Yet police administrators have not provided rank-and-file officers with clear street-level procedures and training for these situations. When can police lawfully stop a citizen from recording? Does recording police even fall within the criminal statutes statutes used? What are the constitutional contours of a right to record police? What state interests are at stake?
This note begins an inquiry into these questions, focusing on the state of Connecticut. (Every state in America faces analogous issues and has similar statutes, however.) I [Mario Kenneth Cerame] start by examining the interests at stake. Why would police want to stop someone from recording them? Why would someone want to record police? What are the policy considerations? Next, I explore the criminal statutes invoked in Connecticut to prevent and deter citizen-recordings, in particular interfering with an officer and disorderly conduct, and whether the act of recording police falls within these statutes. I conclude that these catch-all criminal statutes may apply under specific facts. I then set forth the constitutional rules surrounding recording police, including free speech and press rights, due process rights, and other constitutional issues. Lastly, I consider the appropriate scope of a right to record police and suggest key points for a model policy on police interactions with citizen-recorders.”
Sunlight Is Still the Best Disinfectant: The Case for a First Amendment Right to Record the Police, 51 Washburn L.J. 349 (2012)
“Naturally, the specter of constant citizen-surveillance has been an unwelcome development to some in the ranks of law enforcement. Many police officers and prosecutors have engaged in aggressive efforts to stop the public from recording police activity altogether. Police efforts to prevent citizen-surveillance of law enforcement strike at the very heart of our democratic society. This Note stands for the proposition that citizen-recording of police activity is a protected right under the First Amendment of the U.S. Constitution and that it is vital to implement policies preserving that right. Part II of this Note will examine the history of police visibility, the rise of citizen-surveillance, and police efforts to suppress video monitoring. It will also examine the constitutional questions surrounding an individual’s right to record police activity and discuss two recent cases addressing the question of a constitutional right to record. Part III of this Note will argue in support of a constitutional right to record, relying on bedrock principles of the First Amendment. It will also discuss the recent expansion of police power, why the sunlight of citizen-surveillance is the best disinfectant for police abuses, and what measures state and local governments are taking to advance a policy of accountability.”
Tapping into Police Conduct: The Improper Use of Wiretapping Laws to Prosecute Citizens Who Record On-Duty Police, 19 Am. U.J. Gender Soc. Pol’y & L. 1327 (2011)
“Criminalizing wiretapping is not a new legal concept, but rather a natural evolution of the common law prohibition on eavesdropping, as well as a governmental recognition that electronic surveillance requires regulation. Legislatures generally enact wiretapping statutes with the dual intent of protecting citizens’ privacy and enabling police to combat organized crime efficiently. However, using wiretapping laws to send a message that the state does not want citizens documenting officers’ on-duty activities is becoming more frequent.
This Comment argues that citizens should not have to fear reprisal for recording a police officer in public and that legislation is necessary to correct the practice of using wiretapping statutes to arrest and prosecute citizens engaged in such activity. Part II of this Comment explores the development of the modern right to privacy. Part II also gives a brief review of current wiretapping statutes. Part III argues that all wiretapping statutes should have an expectation of privacy requirement, and that on-duty police officers have a diminished expectation of privacy because they are acting in their capacity as public officials. Part III also argues that unanimous consent laws burden First Amendment rights in various forms. Part IV suggests possible solutions to these policy problems. Finally, Part V concludes that citizens’ First Amendment rights outweigh police officers’ expectations of privacy and that change is wholly necessary.”
This Is What a Police State Looks Like: Sousveillance, Direct Action and the Anti-Corporate Globalization Movement. 21(4) Critical Criminology 447 (2013)
“Activists across the globe have increasingly incorporated digital communication technologies into their repertoire of direct action tactics to challenge state and corporate power. Examining the anti-corporate globalization protests at the September 2009 Group of Twenty (G-20) meetings in Pittsburgh, this paper explores how activists used sousveillance and counter-surveillance as direct action tactics to make excessive force by police more visible to the public. Collaborative endeavors such as the G-20 Resistance Project, the Tin Can Comms Collective and independent media centers provided activists with the necessary tactical and strategic communication networks to coordinate direct actions during the G-20 protests. Through the use of surveillance technologies widely available to the public such as video cameras, cell phones and the internet, activists created an environment of permanent visibility in which the behaviors of police were subjected to public scrutiny. The images captured by anti-globalization activists raise a salient question: Is this what a police state looks like?”
Undermining Excessive Privacy for Police: Citizen Tape Recording to Check Police Officers’ Power, 117 Yale L.J. 1549 (2008)
“Massachusetts and at least twelve other states criminalize recording a communication without the knowledge or consent of all parties to the communication. While some of these states’ laws could be construed to exempt some recording of police, others offer no textual basis for such an exemption. Citizens in several states have been arrested, and in some cases convicted, for taping police conduct. This Comment argues that citizen tape recording provides a necessary check against police abuses of power and furthers privacy values underlying the Constitution and other laws. But police officers’ interests in privacy and safety must be balanced as well. Therefore, states should permit citizens to record police officers in the line of duty without those officers’ consent, as long as their recordings are made in a physically unintrusive manner and do not capture police communications that police could reasonably expect not to be recorded.”
“V.I.P.” Videographer Intimidation Protection: How the Government Should Protect Citizens Who Videotape the Police, 43 Seton Hall L. Rev. 319 (2013)
“This Comment discusses police intimidation of videographers and provides a legislative model that protects videographers who film police conduct. Part II discusses how filming police in public is protected First Amendment activity. Part III exposes how the current legal environment incentivizes police officers to intimidate videographers who attempt to film police conduct. Part IV scrutinizes the current framework of deterrents designed to prevent police misconduct and discusses why these safeguards fail to protect videographers. Part V recommends a bright-line rule that imposes harsh punishments to effectively deter police officers from intimidating law-abiding videographers who capture police conduct on camera. Lastly, Part VI will conclude this discussion.”
Who Watches the Watchmen? Why Recording Citizen-Police Encounters Can Help Reduce Fourth Amendment Violations, SSRN (2012)
“This comment addresses the hurdles that a citizen will face in attempting to remedy violations of their Fourth Amendment rights in both the civil and criminal arena. Ultimately, the comment suggests that on-officer recording of citizen-police encounters would be a valuable tool to criminal defendants and civil rights plaintiffs in combating the hurdles of: (1) judicial over weighing of police testimony; (2) police perjury; (3) implicit bias against the citizen; and (4) the low credibility of the citizen versus the friendly and familiar officer. The comment also addresses a variety of potential criticisms against the use of on-officer recording and why these concerns or critiques are either misplaced or outweighed by the potential benefits of on-officer recording. It concludes that although the solution is imperfect, on-officer recording would act as a deterrent to law enforcements agents against violating the Fourth Amendment because it would allow for more effective section 1983 claims and/or criminal suppression motions. In turn, the use of the devices will result in fewer Fourth Amendment violations and soothe tensions between law enforcement and citizens particularly in the neighborhoods and cities where law enforcement presence is needed the most.”
Who Will Watch the Watchmen?: Citizens Recording Police Conduct, 106 Nw. U. L. Rev. 273 (2012)
“Ordinary citizens are being arrested and prosecuted for recording police conduct in several states. These arrests are being made pursuant to state wiretapping statutes that prohibit the recording of any communication without the consent of all parties. Some of those arrested have filed lawsuits under 42 U.S.C. S 1983, claiming the arrests violate the First Amendment. However, courts have tended to dismiss these suits, arguing that the right to record the police is not “clearly established.” This Comment argues that the right to monitor the police and report misconduct is a clearly established, if not fundamental, element of American policing. It also maintains that arresting and prosecuting individuals who record police conduct constitutes an unconstitutional prior restraint on speech. It concludes by arguing that judicial decisions rendering the recording of police unquestionably legal would not undermine police efforts.”
You Have the Right to Remain Vigilant: Law Enforcement Officers’ Unconstitutional Responses to Being Recorded, 91 U. Det. Mercy L. Rev. 77 (2014)
“This Comment proceeds under two major premises. First, that the police are arresting individual videographers to shield police action from public scrutiny. Second, that these actions by the police are content-specific abridgments of political speech by state actors, and are thus presumptively illegal.
To vindicate the fundamental rights of United States’ citizens to formulate and express a position on the behavior of police officers by recording them, Part I of this Comment examines the actions of police officers from several states to lay a foundation of how police have actually abridged free speech rights and have made unreasonable searches and seizures. This first examination will not focus on the legal aspect of these circumstances, but will survey actual video footage of individuals attempting to exercise their free speech rights and the police reaction thereto as captured in the videos. While this examination is limited only to a few videos from a small number of states, it is a major proposition of this Comment that similar police abuse is occurring throughout the country in most, if not all, states. A corollary: even if there is a present dearth of documented instances and litigated cases of such police violations in some states, the statutory potential exists in almost all states for the same abuses that are evidenced by the videos examined in Part I. While it may be obvious to some that the police have no power or right to stop, detain, threaten, intimidate, arrest, or punish individuals and search and seize their audiovisual recording devices or person for exercising their free speech rights, the unlawful practice is occurring with alarming frequency despite such obvious truth.
Part II of this Comment reviews relevant jurisprudence of the First and Fourth Amendments. Part III discusses two cases central to this evolving issue. It is the position of this Comment that these two cases indirectly demonstrate the inability of courts to vindicate the First and Fourth Amendment rights of videographers. Part IV of this Comment applies the relevant jurisprudence examined in Part II to instances of police action and demonstrates how the application of wiretapping, eavesdropping or disorderly conduct laws by police officers in such circumstances is clearly established as unconstitutional. Part V surveys suggested judicial, legislative, and other remedies, and demonstrates how they are wholly insufficient. Additionally, Part V proffers solutions that have the greatest potential to provide meaningful remedies and protections to citizens who desire to exercise their free speech rights by formulating a position on the actions of law enforcement officers via video recording the actions of law enforcement.”
1st Circuit Says Woman Had Right to Video Traffic Stop, OKs Civil Rights Suit Against Police, ABA J Law News Now, May 27, 2014
“A federal appeals court has given the green light to a New Hampshire woman’s civil rights lawsuit against Weare police. Carla Gericke had a constitutional right to video a police traffic stop of a friend in 2010, the Boston-based 1st U.S. Circuit Court of Appeals ruled Friday. Hence, she may pursue a lawsuit alleging that police charged her with wiretapping in retaliation for her exercise of that constitutional right, the Associated Press reports.”
7 Rules for Recording Police, Gizmodo, Apr. 10, 2012
“Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you’re an aspiring cop watcher you must be uniquely prepared to deal with hostile cops. If you choose to record the police you can reduce the risk of terrible legal consequences and video loss by understanding your state’s laws and carefully adhering to the following rules.”
10 Body Camera Patrol Tips to Keep Attorneys Off Your Back, Policeone.com, Sept. 24, 2014
“If you think that the body camera is going to tell in totality your side of the story in a use-of-force event, think again. As Dr. Bill Lewinski pointed out more than four years ago, “There is no camera in existence that can record an event exactly as it was perceived by an officer who experienced it.” Your account of an event must be meticulously documented in your report — maybe more so now than ever before.”
Big Picture: How Do Police Body Cameras Work?, Wire, Aug. 25, 2014
“The Wire spoke with three companies designing and making these cameras — Taser, Vievu, and Vidcie — to understand the inner workings of their possibly game-changing accessories.”
Boston Admits It: Cell Phone Photography Is Not a Crime, CNET, March 27, 2012
“When Massachusetts charged Simon Glik with using a cell phone to film an arrest, prosecutors probably didn’t realize they’d set a key First Amendment precedent — and cost taxpayers $170,000.”
Brooklyn Man Wins $125,000 Settlement After Claiming He Was Arrested for Recording Stop-and-Frisk, NY Daily News, Aug. 18, 2014
“Dick George claimed that he was pulled from his car in Flatbush after cops realized he was recording them as they searched three youths and overheard him advising the youths to get cops’ badge numbers in June 2012. Dick George spent only 45 minutes in police custody after being arrested for disorderly conduct, according to court papers. He didn’t strike it as rich as the cops predicted, but a Brooklyn man has scored a $125,000 settlement of his federal lawsuit that said he was falsely arrested for recording a stop-and-frisk by police on his cellphone.”
Cameras, Cops and the First Amendment, Crime Rep., Nov. 2, 2011
“From Georgia to Nevada, police are arresting people who are photographing or videotaping their activities from public space or their own property, seizing their equipment and erasing the images. No one keeps data on the frequency of such arrests. But a spate of high-profile incidents in several states suggests the numbers are growing.”
Cameras on Cops: Coming to a Town Near You, CNN Money, March 14, 2014
“Who watches the watchers? It’s an age-old question, but police across the country may have a new answer. The Los Angeles Police Department is currently testing body-mounted cameras that record officers’ interactions with citizens. The New York Police Department says it’s reviewing the technology. These police departments, representing the country’s two largest cities, are part of a nationwide trend that could fundamentally change the relationship between police officers and the public.”
Can Body Cameras ‘Civilize’ Police Encounters?, NPR, Sept. 5, 2014
“Clearly, there are times when citizens have an expectation of privacy that could potentially be violated by a police officer’s use of a body-worn camera — the interview of a child, the interview of a sexual assault victim, for example. … Perhaps a police officer is talking to a confidential informant or someone else trying to get intelligence on criminal activity. When that encounter is recorded, it becomes, in many places, a public document that can be requested by citizens, by press and certainly by prosecutors. It’s clear that police officers and police unions have not universally embraced this technology. They have concerns about when cameras will be on and off, when supervisors can go and review footage. And then, perhaps most importantly, how are you going to store the tremendous amount of video data that’s generated by officers wearing these cameras?”
Can Body Cameras Really Reduce Ferguson Police’s Use of Force?, Governing, Sept. 4, 2014
“Placing small cameras on cops is a fast-growing trend in policing. The cameras — which are small enough to fit on a vest, an officer’s collar or on eyewear and cost $500 to $1,000 each — can be an important tool to improving evidence collection, public behavior and police accountability. Today, more than 1,000 police departments have some or all of their officers wear body cameras, including Atlantic City, N.J.; Ferguson, Mo. (as of last week); Los Angeles (one of the nation’s largest police departments); Oakland, Calif.; Phoenix; San Diego and Seattle.”
Can Cell Phones Stop Police Brutality?, CNN, Nov. 18, 2014
“Cell phone videos of alleged police misconduct have proliferated online, flooding social media websites and provoking questions about law enforcement behavior.”
City to Pay $250,000 to Man Who Claims Police Deleted Video of an Arrest, Baltimore Sun, March 3, 2014
“Baltimore is set to pay $250,000 to a man who says police seized his cellphone and deleted the video of an arrest at the Preakness Stakes in 2010, according a settlement proposal that will be presented to the city’s spending panel this month. Police “vigorously” dispute the allegations by Christopher Sharp who claimed officers violated his First and Fourth Amendment rights when they took his phone after the arrest of his female friend at Pimlico Race Course. But the city lawyers said in the two-page document that because of “factual disputes,” a settlement will help the city “to resolve this litigation economically and to avoid the expense, time and uncertainties” of a potential jury verdict. The case led to new city policies that uphold the right of citizens to record police.”
Cop May Be Following You Everywhere, CNN, Oct. 6, 2014
“What few people understand is that police increasingly make use of sophisticated surveillance equipment as well. NSA-style mass surveillance technologies are making it possible for local police departments to gather information on each and every one of us, on a scale never before been possible.”
D.C. Cops: You Can Take Pictures, But We Can Still Seize Your Cameras, Daily Tech, July 25, 2014
“Under the settlement, the Metropolitan [Wash. DC] PD released an order [PDF] to officers that it “recognizes that members of the general public have a First Amendment right to video record, photograph, and/or audio record MPD members while MPD members are conducting official business or while acting in an official capacity in any public space, unless such recordings interfere with police activity.”
One troublesome issue is that police can still seize the cameras of citizens taking pictures during an incident if they think the photographs could be used as evidence. The photographic device (smartphone or digital camera) may not be inspected without warrant, but under “exigent circumstances”, a watch commander can order warrantless access. The only other restriction on access is that police officers are prohibited from deleting pictures.”
D.C. Police Will Wear Body Cameras as Part of Pilot Program, Wash. Post, Sept. 24, 2014
“To help increase public trust between police officers and the city residents they are sworn to protect, District officers will begin wearing on-body cameras next week as they work. Police Chief Cathy L. Lanier hopes to expand the pilot program to each of her department’s thousands of patrol officers in the coming years. On Wednesday, Lanier and Mayor Vincent C. Gray (D) released details of the six-month, $1 million program, which has been in development for more than a year. Starting Oct. 1, dozens of officers will test five camera models in each of the city’s seven police districts as well as in the school security and special operations divisions.”
Department of Justice Warns Police Against Violating Photographers’ Rights, Photo District News, May 18, 2012
“The Civil Rights Division of the US Department of Justice doesn’t mince words in a May 14 letter to the Baltimore Police Department [BPD]. Citizens have a constitutional right to record police carrying out their public duties, and it is illegal for police to seize and delete the recordings, the letter says. The DOJ goes on to give the BPD a blueprint for re-writing its policies regarding journalists or citizens recording police activities. The letter, posted on the DOJ web site, could be a powerful tool for photographers (or citizens) who are harassed or arrested anywhere in the country for photographing police activities. It says exactly what National Press Photographers Associations, the ACLU, and others have long argued–one painstaking case at a time– about citizens’ right to record police activities.”
Despite Court Rulings, People Are Still Getting Arrested for Recording On-Duty Cops, Wash. Post, May 13, 2014
“The Associated Press reports that police in Chicopee, Mass., have arrested and charged a woman for allegedly recording her arrest with her cellphone surreptitiously. When you see one of these stories, please remember that it is perfectly legal to record on-duty police in every state in the country. That includes states that require all parties to a conversation to consent in order for that conversation to be recorded. Those laws all also contain a provision that the non-consenting party has a reasonable expectation of privacy. So far, every court to rule on this issue has found that on-duty cops in public spaces have no expectation of privacy and that recording them is protected by the First Amendment. (The U.S. Supreme Court has yet to weigh in on the matter.) In nearly all cases, the charges are eventually dismissed. (The exception may be if you’re arrested under some broad, catch-all law such as “interfering with a police officer” or disorderly conduct. But even those charges don’t usually stick.)”
Eugene Verdict Clarifies Legal Protections for Protesters Who Turn Video Cameras on Police, Oregonian, Jan. 29, 2012
“The rules of engagement became clearer in Eugene’s U.S. District Court last week, when a civil jury determined that a city police sergeant violated an environmental activist’s constitutional protections against illegal search and seizure during a 2009 leafletting campaign outside a bank. The eight-person panel determined that Sgt. Bill Solesbee arrested environmentalist Josh Schlossberg without probable cause and used excessive force. But it was Solesbee’s next act that sent legal minds across Oregon into hyperdrive: He seized the environmentalist’s video camera without a warrant. That’s the electronic equivalent of police walking off with several file cabinets of private papers without benefit of a judge’s signature, said Lauren Regan, Schlossberg’s lawyer. U.S. Magistrate Judge Thomas Coffin ruled in a pretrial hearing in the Eugene case that Solesbee violated Schlossberg’s Fourth Amendment rights by searching the contents of his camera without a warrant. That ruling marked the first time that a federal court in Oregon weighed in on warrantless seizures of digital devices.”
Eyeglass-Mounted Video Cameras Earn Police Respect, Gov’t Tech., Nov. 10, 2014
“If not for the officers’ eyeglass-mounted video cameras, the case might have brought charges of police abuse, Fourth Amendment violations and a lengthy investigation. Instead, video from the pencil-size cameras, downloaded back at the station, showed the officers simply doing their job.”
Feds Release Guidance on Police Body Cameras, Politico, Sept. 12, 2014
“Body-worn cameras on police officers can increase accountability of police and improve evidence gathering, but if departments are going to use them they must address concerns of officers and the community, according to guidance released by the Justice Department Friday.”
France Court Orders Block on ‘Copwatch’ Website, Paper Chase, Oct. 17, 2011
“The Tribunal de Grande Instance de Paris [official website, in French] on Friday ordered [judgment in PDF, in French] French Internet service providers to block access to Copwatch Nord Paris I-D-F, a website designed to allow civilians to post videos of alleged police misconduct. The decision was applauded by the police union, Alliance Police Nationale (APN) [union website, in French], which argued that the website incited violence against police. Jean-Claude Delage, secretary general of the APN, said that “[t]he judges have analyzed the situation perfectly—this site being a threat to the integrity of the police — and made the right decision.” Opponents of Internet censorship were also quick to comment on the judgment. Jeremie Zimmermann, spokesman for La Quadrature du Net [advocacy website], a Paris-based net neutrality organization, called the order “an obvious will by the French government to control and censor citizens’ new online public sphere.” The site was ordered to be blocked immediately.”
Ill. Eavesdropping Law Can’t Be Used to Stop Public Recordings of Cops, 7th Circuit Says, ABA J Law News Now, May 9, 2012
“A Chicago-based federal appeals court has blocked Cook County prosecutors from using an Illinois eavesdropping law against people who make audio recordings of police performing their public duties. The 7th U.S. Circuit Court of Appeals ruled for the American Civil Liberties Union in a 2-1 decision on Tuesday, report the Chicago Tribune and an ACLU press release. The law imposes sentences of up to 15 years in prison for those who record audio of police conversations without consent.”
Illinois—Again—Moves to Ban Recording the Police, Ars Technica, Dec. 9, 2014
“Apparently the state of Illinois didn’t get the memo that recording the police is all the rage these days. That’s because awaiting outgoing Gov. Pat Quinn’s signature is legislation that would ban the practice in many circumstances. Just last week, the state’s House (by a 106 to 7 vote) and Senate (46 to 4) passed the measure. It seeks to get around an Illinois Supreme Court ruling earlier this year that struck down a previous law making it a crime to record police.”
Investigation of 5 Cities Finds Body Cameras Usually Help Police, Fusion, Dec. 7, 2014
“A three-month Fusion investigation that reviewed hundreds of pages of records from five police departments with body camera programs reveals that the way body cameras are used usually serve police more than citizens charging misconduct. And in the data from two cities provided to Fusion, there was little evidence police body cameras reduced police involved shootings or use of force incidents.”
Is It Legal to Videotape, Record Police?, Findlaw Blotter, Jan. 27, 2014
“While state laws don’t explicitly say whether it’s legal to videotape police, courts around the country have agreed that it’s legal under the First Amendment — even during protests or during traffic stops. But like most legal rules of thumb, there are some limits to when you may videotape police.”
Is There Any Good Argument Against the Right to Record the Cops?, Wash. Post, Aug. 18, 2014
“The troubling police behavior in Ferguson, Missouri has caused my [Will Baude] social media feeds to erupt with a widespread consensus in favor of a right to record the police — maybe even an obligation on the part of the police to record themselves. (This is in public, in the performance of their official duties.) I’m in favor of such a right, so I’m happy to see this, but discussions with colleagues have caused me to wonder: Putting aside the constitutional questions, as a policy matter what are the best arguments against a right to record?”
Is Your Police Force Wearing Body Cameras?, Vocativ, Nov. 15, 2014
“Vocativ reached out to police departments in the 100 biggest U.S. cities to determine who’s using body cam technology. While the numbers are increasing, cops still have to turn on the cams for them to work.”
Judge Declares State Eavesdropping Law Unconstitutional, Chicago Sun Times, March 2, 2012
“A Cook County Judge declared the state’s eavesdropping law unconstitutional Friday, and a state lawmaker hopes the ruling provides momentum for her push to change the law. Judge Stanley J. Sacks issued the ruling in the case of Christopher Drew, a Chicago artist who was charged with felony eavesdropping after he recorded his Dec. 2, 2009, arrest on State Street by Chicago Police.”
Keeping the Police Honest, Slate, Aug. 29, 2014
“At the moment, there’s an activist and citizen drive for police departments to use body cameras to record all interactions between officers and the public. The idea is that an “objective” source of information could act as a check on police behavior, as well as evidence when there’s an incident. But absent a policy shift for law enforcement, this isn’t a panacea. “Because police departments would ultimately be in charge of storing, analyzing, and disseminating body cam footage, concerns arise over whether if the footage would be disclosed and left untampered,” notes Lauren C. Williams for ThinkProgress.”
Michigan Police Agencies Find Body Cams Useful Tools, Detroit Free Press, Oct. 5, 2014
“Police body cams are gaining ground in Michigan as more departments add them to their standard gear for officers, although cost seems to be holding back larger agencies.”
New York City Officer Reactions to Being Recorded Will Be Studied, Wall. St. J., May 14, 2014
“Members of a New York Police Department oversight panel on Wednesday agreed to study incidents where officers are accused of improperly interfering with bystanders who digitally record arrests. The Civilian Complaint Review Board, which hears allegations of police abuse and recommends disciplinary action, agreed to conduct the study after board member Daniel Gitner said he has seen several recent cases concerning the issue. The board will examine if officers are appropriately trained on how to handle people who are recording. It was unclear how many of the board’s 2,545 open cases involve the issue.”
New York Police Officers to Start Using Body Cameras in a Pilot Program, NY Times, Sept. 5, 2014, at A19
“The New York Police Department will begin equipping a small number of its officers with wearable video cameras, a pilot program geared toward eventually outfitting the nation’s largest police force with technology that promises greater accountability.”
NJ Police Dashboard Video Recordings Are Public Records, State Judge Rules, NJ.com, Oct. 14, 2014
“Videos routinely captured by cameras mounted in police cars during traffic stops and other law enforcement activities are public records and cannot be withheld because they pertain to criminal or internal affairs investigations, a state judge has ruled in two separate cases.”
NOLA Police Hope Body Cameras Provide Important Evidence, NPR, Dec. 6, 2014
“Police officers in New Orleans started wearing cameras this spring. Independent police monitor Susan Hutson tells NPR’s Scott Simon how the NOPD’s camera implementation is going.”
NYCLU Lawsuit Challenges NYPD Arrest of Brooklyn Woman for Filming Stop-and-Frisk, ACLU Press Release, Dec. 17, 2012
“The New York Civil Liberties Union today filed a federal lawsuit challenging the NYPD’s unlawful arrest of a Brooklyn woman for recording a stop-and-frisk encounter in her Brooklyn neighborhood. The plaintiff, Hadiyah Charles, used her smartphone to record two NYPD officers as they questioned and frisked three black youth whom had been innocently fixing a bicycle down the street from her Bedford-Stuyvesant home. The police officers tried to prevent Ms. Charles from filming the encounter by shoving her, handcuffing her, arresting her, and holding her in a jail cell for 90 minutes.”
NYPD Asks For Twitter Posts of Photos of Police Interacting With Public, Gets An Eyeful, ABA J Law News Now, April 23, 2014
“In what is being described in news reports as a major publicity fail, the New York Police Department asked followers of its Twitter page to post photos of city officers interacting with the public under the hashtag #myNYPD. They promptly did, resulting in a large number of negative images and critical comments among the 10,000 or so responses that had come in by Tuesday, the New York Daily News’ blog The Shack reports.”
Obama Wants to Buy 50,000 Body Cams for Police, Monitor Military Gear Handouts, Ars Technica, Dec. 1, 2014
“[T]he the White House released a review of how local law enforcement agencies use equipment, proposing that the federal government spend $263 million over three years to “expand training for law enforcement agencies (LEAs)” and “add more resources for police department reform.” The review included a proposal to dedicate $75 million over three years to buy up to 50,000 body cameras for local LEAs.”
Pennsylvania: Police Accused of Retaliatory Arrests, NY Times, Jan. 17, 2013, at A20
“The Philadelphia police have shown a pattern of wrongfully arresting people who videotaped officers in public, according to a federal lawsuit filed Wednesday. The complaint by the American Civil Liberties Union was drawn up on behalf of a Temple University photojournalism student, Chris Montgomery, 24, who was charged with disorderly conduct for using his cellphone to record the police during a large altercation.”
Police: Activist’s Filming Interfered With Arrest, Austin American-Statesman, Aug. 27, 2012
“Officers arrested Austin activist Antonio Buehler over the weekend because they say his act of filming a Sixth Street arrest interfered with the officers’ ability to do their jobs, police officials said Monday.”
Police Body Cameras Are on the Cusp of Going Mainstream, USA Today, Aug. 18, 2014
“The ACLU generally supports the use of cameras, arguing in a 2013 position paper that although it takes a “dim view of the proliferation of surveillance cameras in American life, police on-body cameras are different because of their potential to serve as a check against the abuse of power by police officers. Historically, there was no documentary evidence of most encounters between police officers and the public, and due to the volatile nature of those encounters, this often resulted in radically divergent accounts of incidents. Cameras have the potential to be a win-win, helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse.””
Police Cameras Are Important, But They’re Useless Without Policies to Ensure They’re Used Properly, Wash. Post, Aug. 19, 2014
“So in addition to making these videos public record, accessible through public records requests, we also need to ensure that police agencies implement rules requiring officers to actually use the cameras, enforce those rules by disciplining officers when they don’t and ensure that the officers, the agencies that employ them, and prosecutors all take care to preserve footage, even if the footage reflects poorly on officers.”
Police Officer Fired for Refusing to Turn on Body Cam, Ars Technica, Dec. 3, 2014
“The idea of putting body-worn cameras on police officers has spread since protests and unrest following the shooting of an unarmed teenager in Ferguson, Missouri. Earlier this week, the Obama administration proposed federal funding to get 50,000 more officers equipped with the cameras. The increased use of cameras makes a few policy questions around them more pressing. One such question: what happens when a police officer fails—or straight-up refuses—to turn on the body camera?”
Police Put Brakes on Body-Camera Plan, Citing Records Request, ABA J, Nov. 2014
“A plan to equip more than 1,000 police officers in Seattle with body cameras may not fly, due to the potential cost of citizen public records requests, officials say.”
Police Rough Up a Man for Filming Them, Courthouse News, June 4, 2014
“A man who was roughed up for videotaping police on the street sued the City of St. Charles in a constitutional complaint in Federal Court. . . . Hamilton seeks declaratory judgment that the police violated his constitutional rights under the First, Fourth, Fifth and Fourteenth Amendments, and that St. Charles police have a “policy or custom” of doing so. He also seeks damages for assault and battery.”
Pre-Pilot Program, a Test Run for One NYPD Body Camera, Gotham Gazette, Sept. 12, 2014
“Last week, NYPD Commissioner Bill Bratton unveiled the two body cameras that would be used in a pilot program by his department: the VieVu LE3 and the Axon Flex by TASER. During the press conference, two police officers modeled the devices and the commissioner showed a short video taken during a traffic stop to display what the recordings would look like.”
Privacy and Fourth Amendment Issues Among Legal Concerns for Law Enforcement Use of Body-Worn Cameras, JDSupra Business Advisor, Oct. 9, 2014
“While there are many considerations for police departments interested in using body-worn cameras in the field, including policy issues and deployment procedures, there are some legal — and somewhat controversial — hurdles that must be contemplated, too.”
San Diego Police Department Says, ‘Just Trust Us.’, Wash. Post, Oct. 17, 2014
“The San Diego Police Department will determine when the public needs to see police camera footage. No one else gets a say. Sure, the department could only release video that exonerates officers, while keeping incriminating video secret. But they won’t do that. We know this because they say they won’t.”
Seen It All Before: 10 Predictions About Police Body Cameras, Atlantic, Dec. 5, 2014
“[A] debate very similar to the one around body cameras has happened before. Two decades ago, law enforcement agencies—and activists hoping to change them—argued about a different kind of mass video surveillance. That technology was not body cameras but in-car dashboard cameras, tape recorders that filmed the action in front of the car and preserved the audio of an officer’s interactions with citizens.”
Shooting Video of Police Could Land You in Jail — But Should It?, Sun Sentinel, Aug. 17, 2013
“Smartphones are almost everywhere, and these portable video cameras can do a lot more than capture a picture of your last lunch or latest outfit. Sometimes, they can land you in jail, especially when videotaping the police. But according to [Florida] state law, they shouldn’t. The law allows people to shoot video and photos in public places, including pictures or video of working law enforcement, but some people wind up arrested when they do so. Legal experts say some police officers are playing fast and loose with the law, and these arrests are often tossed.”
Smile, You’re Under Arrest, Crime Rep., June 17, 2013
“More than 3,000 police departments around the country, including Dallas, Cincinnati, Houston, Oakland, Phoenix, and San Jose have supplied officers with uniform, or body-worn, cameras to document their encounters with citizens. According to some authorities, the cameras have already led to a decrease in lawsuits and egregious citizen complaints against police, but key law enforcement groups have so far withheld a formal endorsement—setting the stage for what may soon become a wider public debate over the expanding application of new technologies to policing.”
Suit Seeks to Establish a Right to Record Police Officers, NY Times, July 16, 2014, at A19
“A federal lawsuit, which cites arrests of people who recorded police confrontations or activity, was filed on Tuesday asking a judge to declare that people have a right under the First Amendment to film or record officers working in public places. The suit was filed in Federal District Court in Manhattan on behalf of one of the people arrested, and seeks a permanent injunction barring New York City employees from retaliating against those who record them in public.”
Supreme Court Gives Nod to Citizens Who Record Police, Amidst Reports of Multiple Arrests, ABA J Law News Now, Nov. 26, 2012
“The U.S. Supreme Court has refused to review a federal appeals court decision finding it unconstitutional to enforce an Illinois state law that makes it a felony to videotape police officers working in public if a microphone is turned on. The law had been challenged by the American Civil Liberties Union, and a divided panel of the Chicago-based 7th U.S. Circuit Court of Appeals agreed earlier this year that it “restricts far more speech than necessary to protect legitimate privacy interests” and, “as applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees,” as Judge Diane Sykes explained in the majority opinion (PDF). On Monday, the nation’s top court declined to hear the state’s appeal, leaving the 7th Circuit ruling in force, the Chicago Tribune reports.”
Three Myths About Police Body Cams, Slate, Sept. 2, 2014
“But many assumptions people make about body-worn cameras simply aren’t true. We’re academics who have studied body cameras for years, and in our work we’ve identified three pervasive myths about the equipment. If police departments around the country are going to adopt the technology, then both law enforcement and citizens need to know about potential downsides as well.”
Today’s Police Put on a Gun and a Camera, N.Y. Times, Sept. 28, 2014, at A1
“Amateur videos of police officers doing their jobs have become part of the fabric of urban democracy, with embarrassing or violent images spreading via social media in minutes. But more police agencies, especially after the unrest following an unarmed teenager’s shooting in Ferguson, Mo., are recording events with small body-mounted cameras.”
U.S. Newsman Says He Was Arrested for Using a Drone Camera, Courthouse News, Feb. 20, 2014
“In a bizarre twist to a civil rights issue, a news photographer claims in a federal lawsuit that Hartford police wrongfully arrested him for using a drone to photograph a fatal car accident – at an elevation of 150 feet, far too high to interfere with police, as officers claimed.”
Valley Man Faces 75 Years in Prison For Recording Law Enforcement, Wabash Valley, Nov. 27, 2012
“Illinois is one of the states applying old eavesdropping and wiretapping statutes to new technologies like cell phones or anything else that records audio. Most states allow citizens to record audio in public of on-duty law enforcement officials without their permission. But that’s considered a felony in Illinois, punishable by up to 15 years in prison for each offense.”
Video of Police Brutality Can Only Do So Much: NYPD Chokehold Cop Not Indicted, Ars Technica, Dec. 3, 2014
“Privacy activists have tried to temper the growing enthusiasm for body cameras as a panacea against excessive use of force by police. They’ve cautioned that body cameras are only useful if there are clear rules about when footage is taken and what happens to the footage after an incident.”
Wearing a Badge, and a Video Camera, NY Times, Apr. 7, 2013, at BU4
“Now, some police departments are using miniaturized video cameras and their microphones to capture, in full detail, officers’ interactions with civilians. The cameras are so small that they can be attached to a collar, a cap or even to the side of an officer’s sunglasses. High-capacity battery packs can last for an extended shift. And all of the videos are uploaded automatically to a central server that serves as a kind of digital evidence locker.”
What You Need to Know About Body Cameras, Marshall Project, Dec. 2, 2014
“A greater obstacle may be ambivalence about whether the technology is a good idea in the first place. The concerns come from a wide array of sources. The ACLU came out this fall in favor of equipping cops, but in the past has stopped short of full endorsement because of fear that body cams will become “another broad surveillance tool.” Ensuring this doesn’t happen will mean navigating murky and untested legal terrain – what one ACLU analyst called a “wild West situation.” In Seattle, for example, Courts have wrestled with the question of what consent is required to initiate camera recording. In Denver, policymakers are anticipating a range of thorny issues. What happens to an officer who intentionally turns the camera off? When will footage be made available? Where? To whom?”
When All Video All, BBC News Mag., Apr. 21, 2009
“In a time of complaints about the surveillance society, cameras are being used by ordinary people to monitor the activities of those in authority. And the kernel of the idea goes back some years.”
Why More People Are Training Their Cell Phones on Police, CNET, Dec. 22, 2013
“In the movies, when police come calling, the ordinary citizen has two options: quake or pull out a gun. In recent time, however, people have realized that they have a third, quite potent option: the cell phone. They know that if they can film the experience, disbelief will have to be suspended, because the evidence is all too clear.”
Wielding a Camera, Activist Takes on Police Misconduct, Crime Rep., July 27, 2012
“Walking home in Sunset Park, Brooklyn in 2002, Dennis Flores witnessed several police officers terrorizing one of his students. Using his camera, he filmed the beating from a telephone booth where he was trying to dial 911 – until the police officers noticed his presence. The result of his ordeal: a fracture, a head injury, and the destruction of his camera. That was when he began to chronicle the Brooklyn neighborhood where he was born and now lives.”
Yes, It’s Legal to Film the Cops — And What’s Been Filmed in Recent Months Is Appalling, Huffington Post, Oct. 13, 2014
“It’s becoming clearer and clearer that smartphones have ushered in a new era of police accountability. Since mid-July, when a bystander on Staten Island filmed the death of Eric Garner in a prohibited police chokehold, at least eight other unsettling videos, most of them captured by smartphone, have emerged showing instances of apparent excessive force by NYPD officers. Four such videos have appeared this month alone.”
Your Arrest Video Is Going Online. Who Will See It?, Daily Beast, Sept. 11, 2014
“America is rushing to outfit cops with cameras, but even experts aren’t sure of the laws regulating the storage of the videos they capture—or determining who exactly has access.”
Your Camera Can Stop NYPD Abuse, NY Daily News, Aug. 3, 2012
“Most of us now carry cell-phone cameras in our pockets. We have access to YouTube, which is a free and easy platform for sharing video. We should use these tools daily, if necessary, to keep police officers honest.”
“Copwatch (also Cop Watch) is a network of activist organizations in the United States and Canada (and to a lesser extent Europe) that observe and document police activity while looking for signs of police misconduct and police brutality. They believe that monitoring police activity on the streets is a way to prevent police brutality. The stated goal of at least one Copwatch group is to engage in monitoring and videotaping police activity in the interest of holding the police accountable in the events involving assaults or police misconduct. Copwatch was first started in Berkeley, California in 1990.”
First Amendment Online Training (BJA)
“When responding to First Amendment-protected events, whether a planned demonstration or a grassroots-developed protest, law enforcement officers must understand their roles and responsibilities. The Bureau of Justice Assistance, with the support of the Global Justice Information Sharing Initiative and the Criminal Intelligence Coordinating Council, developed the Responding to First Amendment-Protected Events—The Role of State and Local Law Enforcement Officers videos to assist agency leadership in providing training to officers and agency personnel as they prepare for and respond to a First Amendment-protected event, in a manner that diligently protects the privacy, civil rights, and civil liberties of persons and groups. In addition to this training video, BJA, with the support of Global, has released numerous resources to assist agencies in the ongoing protection of privacy, civil rights, and civil liberties.”
National Police Accountability Project (Nat’l Lawyers Guild)
“The National Police Accountability Project (NPAP), a project of the National Lawyers Guild, is a non-profit organization of plaintiff’s lawyers, law students and legal workers. NPAP is dedicated to ending police abuse of authority through coordinated legal action, public education, and support for grassroots and victims’ organizations combating police misconduct.”
Recording Police Officers and Public Officials (Digital Medial Law Project)
“As discussed in other areas of this Guide, a patchwork of state laws applies to recording the communications of others, including wiretapping and eavesdropping laws. These laws may impose liability for recording audio of a conversation without the consent of one or more parties, or for making secret audio recordings. However, First Amendment considerations arise when you are openly recording the activities of police officers (or other public officials) carrying out their duties in public places. A number of U.S. Courts of Appeals have held that, in such circumstances, the First Amendment protects the right to record audio and video regardless of whether the police/officials consent. This constitutional right would override any state or federal laws that would otherwise prohibit such recording.”
Video Recording (First Amendment Center)
“We support the First Amendment and build understanding of its core freedoms through education, information and entertainment. The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government. Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.”
“It’s been almost two years since we posted our “Know Your Rights” Guide for Photographers, began calling attention to the problem of police harassment of photographers (including through this video), and began blogging about the issue. And several years before that, our affiliates around the country had already begun filing what have become numerous lawsuits on the issue. It’s also been nearly two years since the First Circuit Court of Appeals held that the right to film police officers is protected by the First Amendment and that, moreover, that principle is so “fundamental and virtually self-evident” that it should have been known to the police even before the court’s ruling. That ruling was only the most prominent—courts around the country have been pretty much unanimous in finding such a right. Yet the problem persists.” [Police Harassment of Photographers Remains a Problem, ACLU Blog, July 3, 2013] See also Photographers’ Rights (ACLU).
AMERICAN LAW REPORTS
Admissibility of Lay Witness Interpretation of Surveillance Photograph or Videotape, 74 A.L.R.5th 643
“It is becoming increasingly common for courts to admit lay opinion testimony interpreting a surveillance photograph or videotape. This type of testimony is offered almost exclusively in criminal cases in which the identity of the person shown in a surveillance photograph or videotape is in issue. Following the end of the common–law prohibition against lay opinions, most courts rejected the admission of in–court photograph identification testimony on the basis that such evidence is not helpful to the jury in determining the identity of the person depicted. The current trend is to admit lay opinion testimony identifying the person, usually a criminal defendant, in a photograph or videotape. For example, in Robinson v. People, 927 P.2d 381, 74 A.L.R.5th 807 (Colo. 1996), the court held that a lay witness may testify regarding the identity of a person depicted in a surveillance photograph if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury. The court also held that the lay witness need only be personally familiar with the defendant, and that the intimacy level of the witness’ familiarity with the defendant only goes to the weight to be given to the witness’ testimony, not the admissibility of such testimony. This annotation gathers cases that consider the admissibility of a lay opinion by a witness who interprets a surveillance photograph or videotape.”
Admissibility of Videotape Film in Evidence in Criminal Trial, 60 A.L.R.3d 333
“This annotation discusses the various questions which may arise in connection with the offer or admission of videotape films as evidence in a criminal trial. The present discussion extends to all types of questions concerning the admissibility of videotape films as far as such questions relate to matters peculiar to videotapes. Questions of admissibility relating to matters not peculiar to videotape films, but common to other types of evidence, are as a rule excluded from the annotation even where cases dealing with such questions involve a videotape film.”
Admissibility of Visual Recording of Event or Matter Giving Rise to Litigation or Prosecution, 41 A.L.R.4th 812
“While motion pictures have been used as evidence for many years, the development of light-weight, economical videotaping equipment has meant a sudden increase in the use of videotapes as evidence, particularly in criminal cases. The reported cases (SS 3- 24, infra) indicate that motion pictures and videotapes are treated similarly for evidentiary purposes and that both types of film are generally admissible if they have been properly authenticated and if they are relevant to the issues.
In the law enforcement context, surveillance cameras are often employed to record a crime as it is taking place. The courts have held such films admissible in prosecutions for possession or sale of stolen goods (S 4, infra), possession of firearms (S 5, infra), and drug transactions (S 7, infra). Similarly, many courts have found that films taken of robberies, burglaries, or other similar crimes, are admissible in prosecutions for those crimes (S 3[a], infra); however, a few courts have reached a contrary result (S 3[b], infra). The courts have also held that films of sexual acts are admissible in prosecutions based on such acts (S 6, infra). Films of assaults (S 9, infra) and strikers picketing in contempt of court orders (S 8, infra) have been held admissible in prosecutions for those crimes. Films depicting crimes other than those previously mentioned, such as rioting or attempted assassination, have been held admissible in prosecutions charging the acts portrayed (S 10, infra).”
Admissibility of Visual Recording of Event or Matter Other Than That Giving Rise to Litigation or Prosecution, 41 A.L.R.4th 877
“The courts in the following cases, SS 3- 21, infra, generally support the view that it is within the discretion of the trial court to determine the admissibility of films and that the exercise of such discretion will not be disturbed absent a showing of abuse.
Motion pictures and videotapes provide a way to bring graphic demonstrations into the courtroom. In civil actions many courts have held that films of accident sites (S 3[a], infra), a personal injury victim’s physical condition (S 4[a], infra), and motor vehicle demonstrations or experiments (S 5[a], infra) were admissible in evidence; however, some courts have reached contrary results (SS 3[b], 4[b], 5[b], infra). The courts in civil actions have reached contrary results with respect to the admissibility of filmed demonstrations of railroad equipment (S 6, infra). Some, but not all, courts have held that filmed medical demonstrations (S 7, infra), films depicting family scenes (S 8, infra), and films showing the operation of machinery (S 9, infra) were admissible in civil actions. Miscellaneous films depicting subjects other than those discussed in SS 3- 9, infra, have been held by some courts to be admissible in civil actions (S 10[a], infra); however, other courts have reached a contrary result (S 10[b], infra).
There has been a recent increase in the use of video technology by law enforcement agencies. Many courts have held that films of a defendant’s confession (S 12[a], infra) and of the scene of the crime (S 11[a], infra) were admissible in criminal prosecutions, while other courts have reached contrary results (SS 12[b], 11[b], infra). It has been held that films of lineups (S 13, infra), of a defendant’s behavior in custody (S 14, infra), and of a homicide and assault victim (S 19, infra) were admissible in criminal prosecutions. Some, but not all, courts have held that a defendant’s videotaped interview with a psychiatrist was admissible in a criminal prosecution (S 18, infra). The courts have reached contrary results with respect to the admissibility, in criminal prosecutions, of television program or news interview films (S 17, infra), and of videotaped testimony (S 15, infra). A few courts have held that films of manufacturing processes were inadmissible in criminal prosecutions relating to mail fraud (S 16, infra). It has also been held that films of a defendant under hypnosis, proffered by the defendant in a criminal prosecution, were inadmissible although similar films, offered by the prosecution, have been held admissible (S 20, infra). Some courts have held that miscellaneous films other than those discussed in SS 13- 20, infra, were admissible in criminal prosecutions (S 21[a], infra), while other courts have reached a contrary result (S 21[b], infra).”
Constitutionality of Secret Video Surveillance, 91 A.L.R.5th 585
“Secret video surveillance may be used to catch criminals in the act under circumstances where a human observer might be in danger, to observe nonverbal criminal conduct that listening devices would miss, or to make a record of observed wrongdoing. State and federal courts, analyzing the legality of such surveillance under the Federal Constitution’s Fourth Amendment and other state or federal constitutional provisions, have reached varying conclusions depending on factors such as if the party complaining of the surveillance had a reasonable expectation of privacy, if a search warrant authorizing the surveillance had been properly issued, or if the search had been consented to by a proper party. In U.S. v. Nerber, 222 F.3d 597, 91 A.L.R.5th 763 (9th Cir. 2000), for example, secret video surveillance of alleged narcotics trafficking in a hotel room occupied by government informants was held lawful with respect to periods of time when the informants, who had consented to the surveillance, were present, but was held to violate the Fourth Amendment with respect to periods when the defendants were alone in the room. This annotation collects and discusses the cases adjudicating the constitutionality of secret video surveillance.”
Criminal and Civil Liability of Civilians and Police Officers Concerning Recording of Police Actions, 84 A.L.R.6th 89
“Filming, videotaping, and audio recording of government officials engaged in their duties in a public place, including police officers performing their responsibilities, is protected by the First Amendment. In recent years, the proliferation of miniature recording devices and free video-sharing websites has led to a dramatic increase in citizen journalism. The effect of this development is clearest in the context of civilian recordings of police activity, particularly in instances of police misconduct. To protect police privacy and safety, several states have responded by prosecuting civilian recorders under state wiretapping laws. In Glik v. Cunniffe, 655 F.3d 78, 39 Media L. Rep. (BNA) 2257, 84 A.L.R.6th 647 (1st Cir. 2011), a civilian was arrested for using his cell phone camera to record an arrest on Boston Commons and charged with, among other things, violation of the Massachusetts wiretapping statute, Mass. Gen. Laws Ann. ch. 272, S 99(C)(1). The First Circuit held that the plaintiff-arrestee’s First Amendment right to record the officers’ public performance of their duties was clearly established. The court also determined that because the plaintiff-arrestee’s use of his cell phone to record was open and obvious, and not “secret” as required for a violation of the wiretap law, the police unquestionably lacked probable cause to arrest the plaintiff-arrestee as required under the Fourth Amendment. This annotation collects and discusses the cases that have addressed the criminal and civil liability of civilians and police officers as they relate to the recording of police actions.”
Criminal Prosecution of Video or Photographic Voyeurism, 120 A.L.R.5th 337
“Recognizing that the act of voyeurism is becoming an increasingly prevalent threat to human dignity and the right to privacy, courts have considered the application of disorderly conduct or criminal trespass statutes to the use of video cameras or cameras as a part of voyeuristic activities, and some states have enacted criminal statutes specifically addressing such conduct in terms prohibiting “invasion of privacy.” For example, one such statute criminalizes the viewing, photographing or filming of another person, for sexual arousal or gratification, when the person is in a place where he or she would have a reasonable expectation of safety from casual or hostile intrusion or surveillance. In State v. Burke, 362 N.J. Super. 55, 826 A.2d 808, 120 A.L.R.5th 749 (App. Div. 2003), the court, vacating the defendant’s conditional guilty plea to trespass, held that acts of video voyeurism occurring within a residential dwelling were not proscribed by the “Peeping Tom” provision of the trespass statute, where the defendant installed a video cassette recorder inside his house in order to tape his guests taking showers and using the bathroom, since the “Peeping Tom” provision of the trespass statute required an intrusion into the dwelling from a vantage point outside that dwelling, and the State’s proffered proofs could not establish this essential element of the offense. This annotation collects and summarizes those cases involving criminal prosecution of video or photographic voyeurism.”
Investigations and Surveillance, Shadowing and Trailing, as Violation of Right of Privacy, 13 A.L.R.3d 1025
“This annotation considers the question whether the investigation of a person or the constant surveillance, shadowing, and trailing of him constitutes a violation of his right of privacy. It is primarily concerned with those cases in which the person being watched, shadowed, or trailed filed a personal injury suit against another who hired a private detective to investigate the validity of the claim. It also discusses other types of investigations not involving surveillance, shadowing, or trailing, in which there is an issue as to whether it constitutes an invasion of the right of privacy.”
Permissible Surveillance, Under State Communications Interception Statute, By Person Other Than State or Local Law Enforcement Officer or One Acting in Concert with Officer, 24 A.L.R.4th 1208
“Most of the states have enacted statutes prohibiting, under pain of criminal prosecution, specified acts of interception or acquisition of communications. The language of many of these communications interception statutes tracks, either exactly or approximately, the language of the federal wiretapping statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. SS 2510-2520).
Under most state communications interception statutes, a two–step analysis must be employed to determine the lawfulness of surveillance conducted by a person who is neither a state law enforcement officer nor an individual acting in concert with such an officer. The portion of the statute defining the scope of this prohibition must first be examined to ascertain whether the surveillance comes within that scope. If so, the statute must often be further consulted to see if the surveillance nonetheless comes within an exception recognized in the statute.
In determining whether an act of surveillance comes within the scope of the relevant statute’s prohibition, courts often construe a particular term or terms. Such a term may specify the nature of the communication subject to surveillance (SS 3- 5, infra), the nature of the equipment employed in the surveillance (S 6, infra), the nature of the person conducting the surveillance (S 7, infra), the nature of the action performed by the person conducting the surveillance (SS 8- 10, infra), or other prohibitions (S 11, infra).
If the court finds that an act of surveillance falls within the general prohibition of the statute, it must often then determine whether an exception in the statute nevertheless permits the surveillance. Most statutes permit surveillance with the prior consent of either one party or both parties to the conversation subject to surveillance, or of some other particular person or persons (SS 16- 18, infra). Other exceptions recognized in certain statutes include surveillance of a communication having a specified relationship with the commission of a criminal offense (S 12, infra), surveillance not performed for the purpose of committing a criminal or tortious act (S 13, infra), surveillance by a telephone company (S 14, infra), surveillance by a person or entity other than a telephone company, and other miscellaneous exceptions (S 19, infra).”
Validity, Construction, and Effect of State Legislation Making Wiretapping a Criminal Offense, 74 A.L.R.2d 855
“The scope of the annotation is expressed in the title, but it may be noted that the discussion is generally confined to rulings made in prosecutions under state anti-wiretapping statutes.”
1 See John Noble Wilford, Cave Paintings in Indonesia May Be Among the Oldest Known, N.Y. Times, Oct. 9, 2014, at A17 (“A painting of an animal known as a pig deer, of the species babirusa, was determined to be at least 35,400 years old. The team concluded that it was “among the earliest dated figurative depiction worldwide, if not the earliest one.””); Mass Observation Site (U. Sussex Spec. Coll.) (“The Mass Observation Archive specialises in material about everyday life in Britain. It contains papers generated by the original Mass Observation social research organisation (1937 to early 1950s), and newer material collected continuously since 1981. The Archive is a charitable trust in the care of the University of Sussex. It is housed at The Keep as part of the University’s Special Collections.”).
2 See Richard B. Woodward, The 40th Anniversary of a 26-Second Reel, NY Times, Nov. 16, 2003, at 40 (“The most valuable piece of film in the world sits in a refrigerated, fireproof safe at a National Archives building in College Park, Md. The work of a complete amateur, who used a Bell & Howell eight-millimeter home movie camera that his secretary had convinced him to bring to work, it is only 26 seconds long.”). See generally Abraham Zapruder News Archive (NY Times).
3 Compare Justin Bachman, Drone Enthusiasts, FAA on Legal Collision Course, SF Gate, Dec. 29, 2013 (“The Federal Aviation Administration has issued a dozen orders to halt the operation of what are technically called unmanned aircraft systems (or UAS) for commercial pursuits, including those performed by aerial photographers, videographers and journalism schools.”); Kate Murphy, Things to Consider Before Buying That Drone, N.Y. Times, Dec. 7, 2014, at SR5 with Michael L. Smith, Regulating Law Enforcement’s Use of Drone: The Need for State Legislation, SSRN (2014); Richard M. Thompson II, Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses (CRS 2013). See generally Center for the Study of the Drone at Bard College.
4 See Robinson Meyer, Seen It All Before: 10 Predictions About Police Body Cameras, Atlantic, Dec. 5, 2014 (“Twenty years ago, law enforcement and activists teamed up to support another video surveillance technology: in-car dash cams.”).
5 Aka body-worn video, body-worn cameras, cop cams, head cams, officer-worn cameras, and wearable cameras. See Michael D. White, Police Officer Body-Worn Cameras: Assessing the Evidence (OJP Diagnostic Center 2014); David A. Harris, Picture This: Body-Worn Video Devices (Head Cams) as Tools for Ensuring Fourth Amendment Compliance by Police, 43 Tex. Tech L. Rev. 357 (2010); Shirley Li, Big Picture: How Do Police Body Cameras Work?, Wire, Aug. 25, 2014.
6 See, e.g., Wendy Ruderman and Aaron Edwards, Police Sought Cellphones for Times Square Shooting Video, NY Times, Aug. 15, 2012, at A18 (“In the age of the ubiquitous smartphone, it is increasingly common for crimes, shootings involving the police and catastrophes to be captured on video, often prompting investigators to seek the video as evidence to help them piece together what happened. But the quests also raise questions of what rights the police have to witnesses’ smartphones and whether police officers make clear that bystanders are not legally obligated to turn over their phones.”).
7 See, e.g., David Kravets, Illinois—Again—Moves to Ban Recording the Police, Ars Technica, Dec. 9, 2014. See generally Clare Sestanovich, What You Need to Know About Body Cameras, The Marshall Project, Dec. 2, 2014.
8 See Farhad Manjoo, Police Cameras Can Shed Light, but Raise Privacy Concerns, NY Times, Aug. 21, 2014, at B1 (“[T]he technology raises privacy concerns both for the police and the public, and there are no national guidelines for how they should be used. The crucial questions of when police should begin recording their work and who gets to decide which encounters should be recorded are still being worked out.”).
9 See, e.g., Steven D. Schwinn, Minnesota Supreme Court Upholds Ban on Falsely Accusing Police, Tees Case for Supreme Court, Constitutional Law Prof Blog, Aug. 9, 2012 (comparing State v. Crawley, 819 N.W.2d 94 (Sup. Ct. Minn. 2012), cert. den. Crawley v. Minnesota, 133 S. Ct. 1493 (2013) with Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005), cert. den. Crogan v. Chaker, 547 U.S. 1128 (2006)); More Police Departments Look to Tune Public Out, USA Today, Nov. 20, 2011 (“Police departments around the country are moving to shield their radio communications from the public as cheap, user-friendly technology has made it easy for anyone to use handheld devices to keep tabs on officers responding to crimes.”); Kevin Krause, Mesquite Woman Arrested After Posting Undercover Cop’s Photo on Facebook, Dallas Morning News, Oct. 12, 2012.
10 See, e.g., Martha Neil, Trial Observer Who Took Photo of Victim in High-Profile Case Wins Motion to Suppress Phone Search, ABA J Law News Now, Aug. 26, 2014 (discussing the decision in People v. Weissman, 2014 NY Slip Op 24235, 2014 N.Y. Misc. LEXIS 3831 (Kings Co. August 26, 2014).); Debra Cassens Weiss, Twitter Must Reveal User Info After Posted Photo Leads to Charges Against Wrong Man, Judge Says, ABA J., Sept. 5, 2014.
11 See generally Obama: Wants to Avoid ‘Militarized’ Police Culture, Newsday, Dec. 2, 2014 (“[T]here are issues to be worked out — including privacy concerns for police, suspects, victims and bystanders; legal questions over who has access to the recordings; and training to make sure officers are using the cameras and don’t have them turned off at a critical time.”).
12 See Howard A. Wasserman, Orwell’s Vision: Video and the Future of Civil Rights Enforcement, 68 Md. L. Rev. 600, 609-10 (2009)(“Courts and advocates frequently assume that video is the event itself, when, in fact, it only is further evidence of the event. Video may be more persuasive because of its cognitive power to “transform viewers into eyewitnesses,” but it remains simply another form of evidence. Video, “like any representational form, must be interpreted,” accounting for “its specific language, [and] its ways of making meaning.” No video is unambiguous or singular in its meaning or significance; the viewer of a video must evaluate and interpret its message, as with any other form of evidence or testimony. And interpretation must overcome the inherent limits of the video’s frame; for example, the video’s picture may not show what happened outside the camera’s view or the causation for actions shown or what depended on “the camera’s perspective (angles) and breadth of view (wide shots and focus).”” Id. at 620 (footnotes omitted).).
13 See, e.g., Martha Neil, City Faces Suit Over Police Stop Based on License-Plate Reader Error, ABA J Law News Now, June 18, 2014 (“As law enforcement agencies throughout the country move toward a world in which, it appears, government cameras, license-plate readers, public records and facial recognition technology will be combined with cellphone records to identify criminals before officers even see them, a California woman’s case serves as a reminder that old-fashioned police work can still be critical to an investigation.”).
14 Although the outcomes in some of the news articles might be dated by recent court decisions and events, their stories provide useful context.