[Rushtalk] Appeals Court Says Filming The Police Is Protected By The First Amendment

Carl Spitzer cwsiv at juno.com
Mon Feb 27 12:28:31 MST 2017

Appeals Court Says Filming The Police Is Protected By The First

from the another-circuit-added-to-the-list dept

In news that will surprise no one, police officers decided they must do
something about someone filming the police department building from
across the street. That's where this Fifth Circuit Court of Appeals
decision begins: with a completely avoidable and completely unnecessary
assertion of government power.

Phillip Turner was filming the police department. He was accosted by two
officers (Grinalds and Dyess). Both demanded he provide them with
identification. He refused to do so. The officers arrested him for
"failure to identify," took his camera, and tossed him in the back of a
squad car. Given the circumstances of the initial interaction, it's
surprising the words "contempt of cop" weren't used on the official
police report. From the opinion [PDF]:

        Grinalds asked Turner, “How’s it going, man? Got your ID with
        you?” Turner continued videotaping, and Grinalds repeatedly
        asked Turner if he had any identification. Turner asked the
        officers whether he was being detained, and Grinalds responded
        that Turner was being detained for investigation and that the
        officers were concerned about who was walking around with a
        video camera. Turner asked for which crime he was being
        detained, and Grinalds replied, “I didn’t say you committed a
        crime.” Grinalds elaborated, “We have the right and authority to
        know who’s walking around our facilities.” 
        Grinalds again asked for Turner’s identification, and Turner
        asked Grinalds, “What happens if I don’t ID myself?” Grinalds
        replied, “We’ll cross that bridge when we come to it.” Grinalds
        continued to request Turner’s identification, which Turner
        refused to provide. Grinalds and Dyess then “suddenly and
        without warning” handcuffed Turner and took his video camera
        from him, and Grinalds said, “This is what happens when you
        don’t ID yourself.”

Turner asked to speak to their supervisor. Given that this happened
right across the street from the department, Turner didn't have to wait
very long. A supervisor arrived and came to at least one correct

        Lieutenant Driver identified himself as the commander. Driver
        asked Turner what he was doing, and Turner explained that he was
        taking pictures from the sidewalk across the street. Driver
        asked Turner for his ID, and Turner told the lieutenant that he
        did not have to identify himself because he had not been
        lawfully arrested and that he chose not to provide his
        identification. Driver responded, “You’re right.”

Texas police officers love to misread the state's "failure to identify"
statute. It doesn't say what they think it does… or what they want to
believe it does. A former cop-turned-law student has a full explanation
here, but suffice to say, cops cannot arrest someone for refusing to ID
themselves -- at least not in Texas. The charge can be added after an
arrest (if the refusal continues), but it can't be the impetus for an

After some discussion between the officers, Turner was released and his
camera was given back. Turner filed a civil rights lawsuit. The lower
court granted immunity to the officers on all allegations. The Fifth
Circuit, however, refuses to go as far. And in doing so, it actually
takes it upon itself to address an issue it easily could have avoided:
whether the First Amendment covers the filming of public servants,
specifically law enforcement officers.

First, the court asks whether the right to film police was "clearly
established" at the time the incident took place (September 2015). It
can't find anything that says it is.

        At the time in question, neither the Supreme Court nor this
        court had determined whether First Amendment protection extends
        to the recording or filming of police. Although Turner insists,
        as some district courts in this circuit have concluded, that
        First Amendment protection extends to the video recording of
        police activity in light of general First Amendment principles,
        the Supreme Court has “repeatedly” instructed courts “not to
        define clearly established law at a high level of generality”:
        “The general proposition, for example, that an unreasonable
        search or seizure violates the Fourth Amendment is of little
        help in determining whether the violative nature of particular
        conduct is clearly established.” Thus, Turner’s reliance on
        decisions that “clarified that [First Amendment]
        protections . . . extend[] to gathering information” does not
        demonstrate whether the specific act at issue here—video
        recording the police or a police station—was clearly

The court doesn't leave it there, although it could have. The court
notes that there's a circuit split on the issue, but just because the
issue's far from decided doesn't mean courts have not recognized the
right exists. It points to conclusions reached by the First and Eleventh
Circuit Appeals Courts as evidence the right to film police has been
acknowledged. Even so, there's not enough clarity on the issue to remove
the officers' immunity.

        We cannot say, however, that “existing precedent . . . placed
        the . . .constitutional question beyond debate” when Turner
        recorded the police station. Neither does it seem that the law
        “so clearly and unambiguously prohibited [the officers’] conduct
        that ‘every reasonable official would understand that what he is
        doing violates [the law].’” In light of the absence of
        controlling authority and the dearth of even persuasive
        authority, there was no clearly established First Amendment
        right to record the police at the time of Turner’s activities. 

This is where the opinion gets interesting. While many judges would
leave a trickier, somewhat tangential issue open and unanswered, the
Fifth Circuit Appeals Court decides it's time for it to set some

        We conclude that First Amendment principles, controlling
        authority, and persuasive precedent demonstrate that a First
        Amendment right to record the police does exist, subject only to
        reasonable time, place, and manner restrictions. 
        To be sure, “[s]peech is an essential mechanism of democracy,
        for it is the means to hold officials accountable to the people.
        The right of citizens to inquire, to hear, to speak, and to use
        information to reach consensus is a precondition to enlightened
        self-government and a necessary means to protect it.” Filming
        the police contributes to the public’s ability to hold the
        police accountable, ensure that police officers are not abusing
        their power, and make informed decisions about police policy.
        Filming the police also frequently helps officers; for example,
        a citizen’s recording might corroborate a probable cause finding
        or might even exonerate an officer charged with wrongdoing. 

In the Fifth Circuit -- joining the First and Eleventh Circuits -- the
First Amendment right to film police has been asserted. Unfortunately,
the issue still remains mostly unsettled, and there's currently nothing
in front of the Supreme Court that would set national precedent.
Unfortunately, the decision doesn't help Turner with his First Amendment
claim, but it will help others going forward.

The court also reverses immunity on one of Turner's Fourth Amendment
claims. While it finds the officers were justified in questioning him,
they went too far when they arrested him. First, as pointed out above,
the "failure to identify" law can't be used to predicate an arrest. And,
after questioning him, the officers still had nothing approaching the
probable cause they needed to make a warrantless arrest. Even though
Turner was detained in the back of the squad car for only a short period
of time, the fact that he was obviously not free to go makes it an
arrest under the Fourth Amendment.

Strangely, the dissent, written by Judge Edith Brown, claims the Appeals
Court has no business setting precedent. In her opinion, the nation's
second-highest courts should stand idly by and wait for the Supreme
Court to do the work.

        The majority asserts, unconnected to the particular facts and
        unnecessary to the disposition of this case, that “a First
        Amendment right to record the police does exist, subject only to
        reasonable time, place, and manner restrictions.” The majority
        derives this general right to film the police from “First
        Amendment principles, controlling authority, and persuasive
        precedent.” But the Supreme Court has repeatedly reversed
        attempts to define “clearly established law” at such “a high
        level of generality.” White, 137 S. Ct. at 552. 

The judge narrowly defines Turner's filming to ensure it would never
fall under this supposedly "broad" definition of the right. She says the
Appeals Court defines the protection as covering "filming police." But
Turner wasn't doing that.

        To the extent there is any consensus of persuasive authority,
        those cases focus only on the narrow issue of whether there is a
        First Amendment right to film the police “carrying out their
        duties in public.” E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st
        Cir. 2011). Turner did not allege that he filmed police officers
        conducting their public duties, but rather that he filmed a
        police station. 

Somehow, filming police officers as they enter and exit a public
building is not "filming police carrying out their duties in public."
Remarkably, Judge Brown says there may be "reasonable" security concerns
that could Constitutionally prevent Turner's actions.

        The majority does not determine that the officers here violated
        Turner’s First Amendment rights—perhaps because it would be
        reasonable for security reasons to restrict individuals from
        filming police officers entering and leaving a police station. 

If police officers are entering and exiting a building from doors
clearly viewable by the public from a public area, the officers
obviously aren't that concerned about their "security." If so, they
would use an entrance/exit members of the public can't see or don't have
access to. If the Fourth Amendment doesn't protect the privacy of
citizens in public areas, the same public areas can't be given a
heightened privacy protection that only covers public servants.

Unsurprisingly, Judge Brown thinks Turner's involuntary stay in the back
of a squad car could reasonably be viewed as Turner just hanging out
there waiting to speak to a supervisor:

        Because Turner himself requested a supervisor, a reasonable
        police officer in that situation could believe that waiting for
        the supervisor to arrive at the scene did not transform Turner’s
        detention into a de facto arrest. At the very least, Officers
        Grinalds and Dyess did not act objectively unreasonably in
        waiting for the requested supervisor—especially because
        Lieutenant Driver had to come from the Fort Worth Police Station
        across the street.

Except that most people "waiting for a supervisor" don't do so while:

a.) handcuffed

b.) sitting in the back of a locked squad car

The length of the detention doesn't matter. And it was ultimately the
supervisor's arrival that sprung Turner. If not for the arrival of the
supervisor -- who immediately recognized Turner couldn't be arrested for
refusing to ID himself -- Turner would undoubtedly have spent an even
longer period being detained, if not taken into the PD and processed.

The good news for Turner is that his sole remaining Fourth Amendment
claims -- the wrongful arrest -- lives on. But the bigger win -- the
First Amendment protections confirmation -- helps everyone else but him.


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