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Fifth Circuit holds that First Amendment protects the right to record the police [pdf]

670 points by oftenwrong 10y ago

ImTalking 10y ago
Huh? This is still an issue? Well, glad that we finally have a decision after 129 years since George Eastman.
- gozur88 10y ago
  It's an issue (still, even after this ruling) because different courts have held different things. Eventually we're going to see a SCOTUS ruling, and hopefully it goes the same way.
  - obstinate 10y ago
    Have you read this ruling? No, different courts haven't held different things. They all held the same way, but not in a precedent setting fashion. This ruling sets precedent. The ruling basically puts the police -- all the police, everywhere in the country -- on notice about harassing people photographing them.
  - djsumdog 10y ago
    Has another Federal court offered a different ruling?
    - gozur88 10y ago
      Fields v. City of Philadelphia: "We have not found, and the experienced counsel have not cited, any case in the Supreme Court or this Circuit finding citizens have a First Amendment right to record police conduct without any stated purpose of being critical of the government. Absent any authority from the Supreme Court or our Court of Appeals, we decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions."
revelation 10y ago
Qualified immunity is one of these baby-boomer neighborhood patrol vestiges with a subtle undertone of racism and xenophobia that will hopefully be limited in due time as the vast abuses it enables today become more apparent. The legal burden on the victim is just absurd, not least given how the qualified immunity boomerangs further into the 4th amendment claims.
- MichaelBurge 10y ago
  Is it a baby-boomer thing? I always thought it was Sovereign Immunity combined with the police acting as agents of the state. Sovereign Immunity always seemed overall a good idea to me, but its negatives should be mitigated by making the government as small as possible in the first place. It doesn't seem like there'd be a need for a "right to petition the government" if you removed Sovereign Immunity, since you could otherwise go through the courts. So I don't think it's recent.
  - koltaggar 10y ago
    Baby boomers ruined everything else, might as well blame them for this too
- aisofteng 10y ago
  What are these "subtle undertones of racism and xenophobia"? There is nothing about QI that is predicated upon race.
  - dragonwriter 10y ago
    If it was explicitly predicated on race it wouldn't be subtle undertones. I'd say it's more a pro-establishment than racist or xenophobic bias, but in the US the former ends up producing the latter in effect.
    - aisofteng 10y ago
      If something is not based on race, how can it be racist? That makes no sense at all.
whack 10y ago
Relevant question: if you decide to record the police as a result of this ruling, they tell you to stop, you refuse and continue recording them, and they arrest you as a result... could you get into any legal trouble? Is it safe to act upon this ruling, or should you just do what the police tell you to do regardless?
- AlexCoventry 10y ago
  Is it safe to act upon this ruling, or should you just do what the police tell you to do regardless? Do what they tell you. "You can beat the rap, but you can't beat the ride." However, once you're out of immediate danger, talk to a lawyer. You would probably have standing for a §1983 lawsuit.
  - jMyles 10y ago
    I think this is awful advice. The second you turn your camera off, you lose your side of the story. If you're seriously nervous and unsure about what to do, ask for a supervisor. In my experience, they'll typically tell other offices to cool it with the cameraphobia crap. But never turn your camera off if you think you're a suspect. What good can it possibly do?
    - AlexCoventry 10y ago
      If you have a record of a government official ordering you under the color of law to turn it off, you have all the story you need.
      - M_Grey 10y ago
        You really don't, and if they want to take it away by force record that.
      - djsumdog 10y ago
        That's even more reason to no stop filming ...
    - 10y ago
jMyles 10y ago
...it's hard to imagine a more obvious and plain application of "freedom of the press" in the information age than the right to record what one's eyes and ears can see and hear and then publish the same, even if (especially if!) it contains evidence of state misconduct. I mean come on.
- jjawssd 10y ago
  What are your thoughts on classified information?
  - JustSomeNobody 10y ago
    Such as what?
  - jMyles 10y ago
    I tend to think that, conceptually, it is incompatible with information technology, and that information technology will eventually render it (and, for that matter, the state) inoperative. But even if you don't agree here, we're talking about events in public, involving public servants, recorded by people who are in no way bound by any sort of state secret framework. This is a million miles from the line.
- deleted 10y ago
  [deleted]
- oxide 10y ago
  Will this deter police from retaliating against someone recording them with a cell phone? I can't imagine it will. Police have a lot of options for retaliation, after all. Sure, it won't hold up in court if they take you to jail, but it could possibly make your life hell for 24 hours at the very least. You could lose your job being detained, for example. IIRC they can hold you that long with no justification or reason required, but I'm not a laywer so take that with a grain of salt. Or weeks, if they really wanted to fuck with you. Just leaving a patrol car around your house for awhile is pretty unsettling. Maybe I'm overthinking this. I certainly don't want to get on the wrong side of my local PD. I don't even want them to know my name, much less stop me every time they see me or otherwise retaliate against me because I whipped out a cell phone. It's almost like a chilling effect, if I have that concept right. I might be mixing that up with another term. Thinking of police retaliation makes me not want to record the police at all, out of fear of retaliation.
r00fus 10y ago
What is frustrating is that the LEOs in the case had no clear standing for detaining Turner. TX is not a Stop and Identify state [1] (neither is CA). Amazing that the police can essentially ignore the laws they're sworn to uphold when it conveniences them. That and "the left him [in the back of a police car] to sweat for a while with the windows rolled up" method of coercion boils my blood. It's like the definition of prejudice - if they think you're a criminal they'll treat you like shit. [1] https://en.wikipedia.org/wiki/Stop_and_identify_statutes#States_with_.E2.80.9Cstop-and-identify.E2.80.9D_statutes https://en.wikipedia.org/wiki/Stop_and_identify_statutes#Sta...
- obstinate 10y ago
  That is why the judge reversed the determination of qualified immunity for the two officers. :)
  - dmix 10y ago
    Seems like a high bar to pass to have law abiding citizens treated with respect for the law. Same with getting cops to not be so quick to pull the trigger and default to respecting people's life. This attitude of absolute power that some American police hold is as much a cultural issue than one of legal semantics. It has to be confronted without being blown off as an attack on police. The best approach is probably taking a reasoned, most cops are good, approach and focus in on the minority who flaunt the law. The solution might be via policy (making it easier to fire cops) or training. But thanks to the all powerful unions I'm sure this will be a big uphill battle.
    - obstinate 10y ago
      It is far too high a bar. The police have always been very resistant to actually allowing the freedom the Constitution promises. This is only the latest example. One could wish for the police to just be decent people, and one could wish for a billion dollars. If wishes were horses ...
      - deleted 10y ago
DoofusOfDeath 10y ago
FYI, I found the ruling is surprisingly readable and interesting. If you have a few minutes, I suggest taking a look.
- dankohn1 10y ago
  Thanks for the recommendation! I agree it was surprisingly readable. Most important part starts on page 9.
more_corn 10y ago
Again
maj0rhn 10y ago
I don't think this case was at all about the legality of recording the police, as the headline proclaims. The defendant was never charged with illegally recording the police, or with anything at all. The conclusion, in fact, gives the police officers qualified immunity from the plaintiff's claim of First and Fourth Amendment violations. The "further proceedings" on the Fourth Amendment claim is what was found for the plaintiff, but I didn't read the whole opinion to know what that means. It's scary that some of the comments in this thread are from people who would read an opinion like this -- or read the HN headline -- and take it to heart in terms of their own actions. That's just dumb. Look at all the precedents that are cited in the opinion -- it's not a simple case, and, indeed, there were dissents from the majority opinion. Be careful out there.
- oftenwrong 10y ago
  That's the headline because that is the most significant part of the opinion due to the precedent it sets. It establishes, for the Fifth Circuit, the right to record the police. Previously, as stated in the opinion, this right was not clearly established.
anon345235 10y ago
Unfortunately, rights may exist but police can still violate those rights with immunity unless those rights are "clearly established". In this case, the court ruled that sure, there is a First Amendment right to film police, but that in this case "there was no clearly established First Amendment right to record the police at the time of Turner’s activities." So, it was OK for the officers to detain Turner. They also said the police should have quickly investigated whatever crime they suspected. Instead they cuffed Turner for "not providing ID" (which BTW is not a crime in Texas) and placed him in a hot patrol car for "a while" without actually investigating any crime, which the court found to be an unreasonable arrest. The court also has a section named "Whether the Right Is Clearly Established Henceforth" which is the interesting part. Sadly, in that section they only affirm that the right to film exists, heavily quoting other court rulings that already ruled the right exists. There doesn't seem to be anything new in this ruling that would cause another court to say the right to film is now "clearly established". The threshold is not whether some court says the the right is "clearly established starting right now!". The actual threshold is that "every reasonable official would understand that what he is doing violates [the law]." I suspect it's still going to take a Supreme Court ruling and years of police training before plantiffs can really prove their rights are "clearly established" using that criteria.
ImTalking 10y ago
4th amendment is a farce anyway. Asset forfeiture is a direct violation of the 4th and yet has passed judicial constitutionality tests. Asset forfeiture was never supposed to be used on US citizens since citizens can be prosecuted under federal criminal/civil laws. It was put in-place to seize the assets of non-US citizens who could not be persecuted under such laws, such as foreign ships/etc. Bennis v. Michigan was one of the worst SCOTUS decisions.
- djsumdog 10y ago
  I have not heard that about Asset forfeiture. Asset forfeiture is pretty fucked up. At least with eminent domain, there may sometimes be a good cause (building a rail/train/infrastructure that benefits all), but usually not (building an on-ramp for a shopping centre). If the people who got away with the 2008 financial crisis were actually arrested, changed and convicted, it'd be interesting to see the government auction off the rewards of their crime (their mansions, expensive cars, etc.) As it stands now, ssset forfeiture seems to hurt the poorest and funnels money into the increasing militaristic police force.
  - _archon_ 10y ago
    I believe you are confusing eminent domain (forced sale of real estate) with asset forfeiture (cops pull you over, find something to arrest you for, then take all your stuff and never give it back to you regardless of whether you're found guilty or not).
- dmix 10y ago
  Of all the things wrong in the US, drugs, surveillance, healthcare, I don't think anything is worse than asset forfeiture. Zero due process and assumption of innocence. Pretty core values being ignored. Not to mention the perverse incentives it gives law enforcement who often get to keep the money and spend it themselves. At the very least it should be put in a neutral state fund.
- bpodgursky 10y ago
  Just to be more precise, _civil_ asset forfeiture is the abomination. Asset forfeiture is a general term which also covers seizure of assets produced by a crime after there has been a conviction. For example, seizing Bernie Madoff's remaining money after he got convicted of fraud. It's a bit pedantic but I've seen a lot of people confuse numbers between the two. Obviously CAF is horrible, but I've seen a lot of numbers out of context about billions of dollars being seized which are blatantly false, because of this mixup.
aerovistae 10y ago
So does this apply nationally?
- djsumdog 10y ago
  Fifth Circuit is a Federal District Court. IANAL, but I think the only thing higher would be the Supreme Court, right?
  - vizeroth 10y ago
    but there are 10 other circuits on an equal footing and dissenting opinion even within the court, so, while it is a federal matter and could be applicable throughout the country, you probably don't want to be the person who has to go to the Supreme Court to prove it.
  - int_19h 10y ago
    The text of the ruling seems to imply that the Fifth is not the first circuit to reach this conclusion. "We agree with every circuit that has ruled on this question: Each has concluded that the First Amendment protects the right to record the police." This has a footnote to it: "See Alvarez, 679 F.3d at 595–96; Glik, 655 F.3d at 82, 85; Smith, 212 F.3d at 1333; see also Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995)." Are there any lawyers here willing to decipher this for us?
    - schoen 10y ago
      Not a lawyer, but I work with some. Each of these (except the last) is an abbreviated citation to a published court opinion cited earlier in the decision. Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 595–602 (7th Cir. 2012) Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.), cert. denied, 531 U.S. 978 (2000) F.3d is an abbreviation for Federal Reporter, 3rd series (the current series of the Federal Reporter, which publishes Federal appeals court decisions ). When you see a citation like x F.3d y, it means "Federal Reporter, 3rd series, volume x, page y". The form "x F.3d at z" means "volume x, page z, but that's the middle of a decision, not its start" (called a "pin cite"). The form "x. F.3d y, z" is another way of saying "the decision starts at page y of volume x, but here we are specifically referring to page z". The part in parentheses indicates which particular court wrote the decision (a particular numbered circuit court of appeals) and in what year. https://en.wikipedia.org/wiki/Federal_Reporter https://en.wikipedia.org/wiki/Federal_Reporter https://en.wikipedia.org/wiki/United_States_courts_of_appeals https://en.wikipedia.org/wiki/United_States_courts_of_appeal... You can often look up the texts of these decisions online in various places, although I don't see a convenient up-to-date free F.3d online anywhere. Originally the concept was going to a library, which would have huge long series of reporters (books that publish court decisions), and you could tell the librarian "I'd like volume 655 of the Federal Reporter 3rd series, please", and then turn to page 85 to see what the First Circuit said on the page in question of its Glik decision. District court decisions (from the trial level) are cited in the same way but with "F.Supp." (a different reporter); Supreme Court decisions are also cited in the same way but the reporter is "U.S." and the court doesn't have to be mentioned in parentheses, because the Supreme Court is the only court whose decisions are published by United States Reports. So you might see Foo v. Bar, x F.Supp. y (D.Somewhere yyyy) ← district court Foo v. Bar, x F.3d y (nth Cir. yyyy) ← circuit court of appeal Foo v. Bar, x U.S. y (yyyy) ← Supreme Court and each one could also cite to a specific page or range of pages within the opinion by using "at z" or "y, z".
ultrahate 10y ago
What a shame that I'm excited that my country still supports my rights as a citizen to some degree. I'm disappointingly satisfied. Our rights are inalienable and self-evidently truthful. How can someone or some court thereafter determine what rights I have?
- MichaelBurge 10y ago
  > Our rights are inalienable and self-evidently truthful. How can someone or some court thereafter determine what rights I have? I would probably define a right as "A persuasion technique for convincing others to decide disputes in your favor". Then, your rights can be weakened simply by having people not be persuaded by them; and removed legally by having the highest court not be persuaded by them. If somebody asks something like, "Do monkeys have rights?", keep in mind that nothing about the universe changes depending on that answer. No computers will blink their lights on in response to a sensor picking up a right when it scans you. So rights don't exist. Why do people pretend that rights exist, even though they don't? Game-theoretically, collectively pretending that we have a natural-born right to free speech independent from the government reduces the risk that a King will rise up and cause trouble while suppressing the press. Anyone questioning his policies can appeal to the right in their arguments. So we choose to allow ourselves to admit an "appeal to a right" in arguments, because we want others to be convinced as well. So "Why do people not respect my rights?" seems ill-framed, but "Why do people not understand the consequences of allowing a right to be asserted?" is. And there would be no such thing as a "self-evidently truthful" right, only a right where the consequences of allowing it to be asserted in an argument are clearly beneficial.
  - spangry 10y ago
    This reminds me of a great (and prescient) bit by George Carlin - https://www.youtube.com/watch?v=m9-R8T1SuG4 https://www.youtube.com/watch?v=m9-R8T1SuG4
    - icebraining 10y ago
      Not prescient. Better informed, perhaps.
deleted 10y ago
[deleted]
chrisweekly 10y ago
Good news. Curious what you all think about the concept of mandated self-recording _by_ the police. IMHO the (all-too-often realized) potential for abuse of power might reasonably be balanced by such impositions on the privacy or autonomy of those we entrust to enforce and uphold the rule of law. Good cops would have a measure of extra protection from false accusations, and bad cops would have a harder time abusing the power they've been granted.
gregwebs 10y ago
Quote from the ruling: "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." However, note that they actually affirmed the lower court ruling that the police were not liable for violating the first amendment in this case. This is because it was not clear from the courts (before this ruling) that this right existed. They did find that the police violated the fourth amendment by arresting someone for recording a police station (and at the time there was no presumption of a 1st amendment right).
- afthonos 10y ago
  They did not affirm that the First Amendment was not violated; they explicitly ruled it had. What they affirmed was that it was not so obviously violated that every officer should have known it, and therefore the officers were entitled to qualified immunity, i.e. immunity from being sued because they did their jobs in a way that a reasonable officer could think was lawful.
  - Sacho 10y ago
    But isn't the practical effect of this that police officers can continue violating the FA rights of people in this way and then shrugging behind qualified immunity?
    - int_19h 10y ago
      No, because they have firmly established that right by this very ruling. "Although the right was not clearly established at the time of Turner’s activities, whether such a right exists and is protected by the First Amendment presents a separate and distinct question. Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. 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. "
  - 10y ago
deleted 10y ago
[deleted]
nanch 10y ago
New law being written right before our eyes. But the title of the post isn't actually what was found in this case... This PDF is worth reading over a couple times for full understanding. The topic is extremely relevant to each of our lives and thus quite tangible and easy to reason about. The person in this case had to have a federal judgement made against him (the officers were granted qualified immunity [typical]) and THEN he had to appeal the case to obtain this judgement. A lot of work! (And I'm glad he saw it through!) "The officers’ handcuffing Turner and placing him in the patrol car, as alleged in the amended complaint, were not reasonable under the circumstances. We conclude that a reasonable person in Turner’s position would have understood the officers’ actions 'to constitute a restraint on [Turner’s] freedom of movement of the degree which the law associates with formal arrest.'" Kudos to the judges for their sound judgement. "Grinalds and Dyess are therefore not entitled to qualified immunity at this stage of the litigation on Turner’s Fourth Amendment claim that the officers violated his right to be free from warrantless arrest absent probable cause." Epic. "Even if Turner had sufficiently alleged a constitutional violation, Driver acted objectively reasonably in light of the circumstances—namely, by apprising himself of the situation and acting accordingly. Driver is therefore entitled to qualified immunity on Turner’s Fourth Amendment claims." Fair and reasonable judgement. The dissent is interesting and worth-reading. I agree regarding the First Ammendment findings, but I disagree with the arguments against the majority's Fourth Ammendment judgement. For some understanding of how the Federal Judicial System works, it's worth watching this video https://www.youtube.com/watch?v=i_mbk0YhLa0 https://www.youtube.com/watch?v=i_mbk0YhLa0. The law that protects citizens from oppression from officers (as in this case) is United States Code: 42 U.S. Code § 1983 - Civil action for deprivation of rights. It's a short text and you can read it here: https://www.law.cornell.edu/uscode/text/42/1983 https://www.law.cornell.edu/uscode/text/42/1983 (Read it a few times over again to get a good idea of what is stated) In this case, the Court of Appeals for the 5th District ruled on this. You can see a map of the federal districts here: https://en.wikipedia.org/wiki/United_States_courts_of_appeals https://en.wikipedia.org/wiki/United_States_courts_of_appeal...
- schoen 10y ago
  Note 5th Circuit, not district.
known 10y ago
Never argue with Police; Call a Lawyer;
wallace_f 10y ago
Is anybody capable of putting this into plain English, or ideally, link an authoritative source which does that? For us with no time on our hands. Particular queries: 1 - Does this apply nationally? Where and where doesn't it apply (user @aerovistae & others asked and remains unsettled, debated in comments here) 2 - Does this apply to both video and audio recording? 3 - Are there limits where and when I can record? (public vs private spaces?) 4 - What should one do if police forcibly interfere with your right to record and retain information?
- HNLogInShit 10y ago
  The gist is that this court intends to settle this 1st-Amendment question with this case. Although no lower court had held that people DON'T have a right to record police (and several had held that they DO), it was not deemed a "settled" matter. Now it is: You can do it. Audio and video.
chmaynard 10y ago
This seems like an empty decision with no real consequences for any of the parties. The court looks good because they came to the correct conclusion. The local police can laugh and continue to violate our constitutional rights with impunity. The plaintiff gets the satisfaction of a favorable ruling, but receives no compensation or even an apology. Our justice system remains corrupt and contented. Move along, there's nothing to see here.
nanch 10y ago
The part you're looking for: "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." Starts at the middle of page 9.
itchyjunk 10y ago
I see a lot of good argument for being able to record an officer on duty. But I am not familiar with the against arguments. One i hear is "privacy of the officer" but it does not make a lot of sense in this context. What are they doing on duty that needs to be a secret? So my question is, what made them think that it was not okay to be recorded or what are strong arguments that are still valid? What situation would you say is an exception where people should not record the cops? would it get in the way of investigation sometimes maybe? Tangentially, what do you think about drones that record stuff? I saw a few videos on you tube where drones were following cops around. Should there be a distinction between cell phone recording and drone recording? Could the officer claim they are being harassed? Thanks.
OliverJones 10y ago
Here's a web story on the subject. The videographer, Turner, is a correspondent for an org called "Photography is not a Crime." For what it's worth, in the bodycam video shown in this story, Mr. Turner appears to be African-American, and the officers appear to be Euro-American. That fact of race is, unfortunately, relevant in 21st century Texas. http://photographyisnotacrime.com/2015/09/02/texas-officers-arrest-man-for-recording-outside-police-department-ban-him-from-setting-foot-on-police-public-property/ http://photographyisnotacrime.com/2015/09/02/texas-officers-...
coding123 10y ago
I'm all for recording. Have a front facing and rear facing dash cam in my car. I want something like Google glass, not as a computer, but as a full time recording device.
greggman 10y ago
So when can we start recording at the border? Or will we have to wait until we all have eye implants for that nonsense to stop?

670 points by oftenwrong 10y ago

ImTalking 10y ago

Huh? This is still an issue? Well, glad that we finally have a decision after 129 years since George Eastman.

gozur88 10y ago
It's an issue (still, even after this ruling) because different courts have held different things. Eventually we're going to see a SCOTUS ruling, and hopefully it goes the same way.
- obstinate 10y ago
  Have you read this ruling? No, different courts haven't held different things. They all held the same way, but not in a precedent setting fashion. This ruling sets precedent. The ruling basically puts the police -- all the police, everywhere in the country -- on notice about harassing people photographing them.
- djsumdog 10y ago
  Has another Federal court offered a different ruling?
  - gozur88 10y ago
    Fields v. City of Philadelphia: "We have not found, and the experienced counsel have not cited, any case in the Supreme Court or this Circuit finding citizens have a First Amendment right to record police conduct without any stated purpose of being critical of the government. Absent any authority from the Supreme Court or our Court of Appeals, we decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions."

revelation 10y ago

Qualified immunity is one of these baby-boomer neighborhood patrol vestiges with a subtle undertone of racism and xenophobia that will hopefully be limited in due time as the vast abuses it enables today become more apparent. The legal burden on the victim is just absurd, not least given how the qualified immunity boomerangs further into the 4th amendment claims.

MichaelBurge 10y ago
Is it a baby-boomer thing? I always thought it was Sovereign Immunity combined with the police acting as agents of the state. Sovereign Immunity always seemed overall a good idea to me, but its negatives should be mitigated by making the government as small as possible in the first place. It doesn't seem like there'd be a need for a "right to petition the government" if you removed Sovereign Immunity, since you could otherwise go through the courts. So I don't think it's recent.
- koltaggar 10y ago
  Baby boomers ruined everything else, might as well blame them for this too
aisofteng 10y ago
What are these "subtle undertones of racism and xenophobia"? There is nothing about QI that is predicated upon race.
- dragonwriter 10y ago
  If it was explicitly predicated on race it wouldn't be subtle undertones. I'd say it's more a pro-establishment than racist or xenophobic bias, but in the US the former ends up producing the latter in effect.
  - aisofteng 10y ago
    If something is not based on race, how can it be racist? That makes no sense at all.

whack 10y ago

Relevant question: if you decide to record the police as a result of this ruling, they tell you to stop, you refuse and continue recording them, and they arrest you as a result... could you get into any legal trouble? Is it safe to act upon this ruling, or should you just do what the police tell you to do regardless?

AlexCoventry 10y ago
Is it safe to act upon this ruling, or should you just do what the police tell you to do regardless? Do what they tell you. "You can beat the rap, but you can't beat the ride." However, once you're out of immediate danger, talk to a lawyer. You would probably have standing for a §1983 lawsuit.
- jMyles 10y ago
  I think this is awful advice. The second you turn your camera off, you lose your side of the story. If you're seriously nervous and unsure about what to do, ask for a supervisor. In my experience, they'll typically tell other offices to cool it with the cameraphobia crap. But never turn your camera off if you think you're a suspect. What good can it possibly do?
  - AlexCoventry 10y ago
    If you have a record of a government official ordering you under the color of law to turn it off, you have all the story you need.
    - M_Grey 10y ago
      You really don't, and if they want to take it away by force record that.
    - djsumdog 10y ago
      That's even more reason to no stop filming ...
  - 10y ago

jMyles 10y ago

...it's hard to imagine a more obvious and plain application of "freedom of the press" in the information age than the right to record what one's eyes and ears can see and hear and then publish the same, even if (especially if!) it contains evidence of state misconduct. I mean come on.

jjawssd 10y ago
What are your thoughts on classified information?
- JustSomeNobody 10y ago
  Such as what?
- jMyles 10y ago
  I tend to think that, conceptually, it is incompatible with information technology, and that information technology will eventually render it (and, for that matter, the state) inoperative. But even if you don't agree here, we're talking about events in public, involving public servants, recorded by people who are in no way bound by any sort of state secret framework. This is a million miles from the line.
deleted 10y ago
[deleted]
oxide 10y ago
Will this deter police from retaliating against someone recording them with a cell phone? I can't imagine it will. Police have a lot of options for retaliation, after all. Sure, it won't hold up in court if they take you to jail, but it could possibly make your life hell for 24 hours at the very least. You could lose your job being detained, for example. IIRC they can hold you that long with no justification or reason required, but I'm not a laywer so take that with a grain of salt. Or weeks, if they really wanted to fuck with you. Just leaving a patrol car around your house for awhile is pretty unsettling. Maybe I'm overthinking this. I certainly don't want to get on the wrong side of my local PD. I don't even want them to know my name, much less stop me every time they see me or otherwise retaliate against me because I whipped out a cell phone. It's almost like a chilling effect, if I have that concept right. I might be mixing that up with another term. Thinking of police retaliation makes me not want to record the police at all, out of fear of retaliation.

r00fus 10y ago

What is frustrating is that the LEOs in the case had no clear standing for detaining Turner. TX is not a Stop and Identify state [1] (neither is CA). Amazing that the police can essentially ignore the laws they're sworn to uphold when it conveniences them. That and "the left him [in the back of a police car] to sweat for a while with the windows rolled up" method of coercion boils my blood. It's like the definition of prejudice - if they think you're a criminal they'll treat you like shit. [1] https://en.wikipedia.org/wiki/Stop_and_identify_statutes#States_with_.E2.80.9Cstop-and-identify.E2.80.9D_statutes https://en.wikipedia.org/wiki/Stop_and_identify_statutes#Sta...

obstinate 10y ago
That is why the judge reversed the determination of qualified immunity for the two officers. :)
- dmix 10y ago
  Seems like a high bar to pass to have law abiding citizens treated with respect for the law. Same with getting cops to not be so quick to pull the trigger and default to respecting people's life. This attitude of absolute power that some American police hold is as much a cultural issue than one of legal semantics. It has to be confronted without being blown off as an attack on police. The best approach is probably taking a reasoned, most cops are good, approach and focus in on the minority who flaunt the law. The solution might be via policy (making it easier to fire cops) or training. But thanks to the all powerful unions I'm sure this will be a big uphill battle.
  - obstinate 10y ago
    It is far too high a bar. The police have always been very resistant to actually allowing the freedom the Constitution promises. This is only the latest example. One could wish for the police to just be decent people, and one could wish for a billion dollars. If wishes were horses ...
    - deleted 10y ago

DoofusOfDeath 10y ago

FYI, I found the ruling is surprisingly readable and interesting. If you have a few minutes, I suggest taking a look.

dankohn1 10y ago
Thanks for the recommendation! I agree it was surprisingly readable. Most important part starts on page 9.

more_corn 10y ago

Again

maj0rhn 10y ago

I don't think this case was at all about the legality of recording the police, as the headline proclaims. The defendant was never charged with illegally recording the police, or with anything at all. The conclusion, in fact, gives the police officers qualified immunity from the plaintiff's claim of First and Fourth Amendment violations. The "further proceedings" on the Fourth Amendment claim is what was found for the plaintiff, but I didn't read the whole opinion to know what that means. It's scary that some of the comments in this thread are from people who would read an opinion like this -- or read the HN headline -- and take it to heart in terms of their own actions. That's just dumb. Look at all the precedents that are cited in the opinion -- it's not a simple case, and, indeed, there were dissents from the majority opinion. Be careful out there.

oftenwrong 10y ago
That's the headline because that is the most significant part of the opinion due to the precedent it sets. It establishes, for the Fifth Circuit, the right to record the police. Previously, as stated in the opinion, this right was not clearly established.

anon345235 10y ago

Unfortunately, rights may exist but police can still violate those rights with immunity unless those rights are "clearly established". In this case, the court ruled that sure, there is a First Amendment right to film police, but that in this case "there was no clearly established First Amendment right to record the police at the time of Turner’s activities." So, it was OK for the officers to detain Turner. They also said the police should have quickly investigated whatever crime they suspected. Instead they cuffed Turner for "not providing ID" (which BTW is not a crime in Texas) and placed him in a hot patrol car for "a while" without actually investigating any crime, which the court found to be an unreasonable arrest. The court also has a section named "Whether the Right Is Clearly Established Henceforth" which is the interesting part. Sadly, in that section they only affirm that the right to film exists, heavily quoting other court rulings that already ruled the right exists. There doesn't seem to be anything new in this ruling that would cause another court to say the right to film is now "clearly established". The threshold is not whether some court says the the right is "clearly established starting right now!". The actual threshold is that "every reasonable official would understand that what he is doing violates [the law]." I suspect it's still going to take a Supreme Court ruling and years of police training before plantiffs can really prove their rights are "clearly established" using that criteria.

ImTalking 10y ago

4th amendment is a farce anyway. Asset forfeiture is a direct violation of the 4th and yet has passed judicial constitutionality tests. Asset forfeiture was never supposed to be used on US citizens since citizens can be prosecuted under federal criminal/civil laws. It was put in-place to seize the assets of non-US citizens who could not be persecuted under such laws, such as foreign ships/etc. Bennis v. Michigan was one of the worst SCOTUS decisions.

djsumdog 10y ago
I have not heard that about Asset forfeiture. Asset forfeiture is pretty fucked up. At least with eminent domain, there may sometimes be a good cause (building a rail/train/infrastructure that benefits all), but usually not (building an on-ramp for a shopping centre). If the people who got away with the 2008 financial crisis were actually arrested, changed and convicted, it'd be interesting to see the government auction off the rewards of their crime (their mansions, expensive cars, etc.) As it stands now, ssset forfeiture seems to hurt the poorest and funnels money into the increasing militaristic police force.
- _archon_ 10y ago
  I believe you are confusing eminent domain (forced sale of real estate) with asset forfeiture (cops pull you over, find something to arrest you for, then take all your stuff and never give it back to you regardless of whether you're found guilty or not).
dmix 10y ago
Of all the things wrong in the US, drugs, surveillance, healthcare, I don't think anything is worse than asset forfeiture. Zero due process and assumption of innocence. Pretty core values being ignored. Not to mention the perverse incentives it gives law enforcement who often get to keep the money and spend it themselves. At the very least it should be put in a neutral state fund.
bpodgursky 10y ago
Just to be more precise, _civil_ asset forfeiture is the abomination. Asset forfeiture is a general term which also covers seizure of assets produced by a crime after there has been a conviction. For example, seizing Bernie Madoff's remaining money after he got convicted of fraud. It's a bit pedantic but I've seen a lot of people confuse numbers between the two. Obviously CAF is horrible, but I've seen a lot of numbers out of context about billions of dollars being seized which are blatantly false, because of this mixup.

aerovistae 10y ago

So does this apply nationally?

djsumdog 10y ago
Fifth Circuit is a Federal District Court. IANAL, but I think the only thing higher would be the Supreme Court, right?
- vizeroth 10y ago
  but there are 10 other circuits on an equal footing and dissenting opinion even within the court, so, while it is a federal matter and could be applicable throughout the country, you probably don't want to be the person who has to go to the Supreme Court to prove it.
- int_19h 10y ago
  The text of the ruling seems to imply that the Fifth is not the first circuit to reach this conclusion. "We agree with every circuit that has ruled on this question: Each has concluded that the First Amendment protects the right to record the police." This has a footnote to it: "See Alvarez, 679 F.3d at 595–96; Glik, 655 F.3d at 82, 85; Smith, 212 F.3d at 1333; see also Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995)." Are there any lawyers here willing to decipher this for us?
  - schoen 10y ago
    Not a lawyer, but I work with some. Each of these (except the last) is an abbreviated citation to a published court opinion cited earlier in the decision. Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 595–602 (7th Cir. 2012) Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.), cert. denied, 531 U.S. 978 (2000) F.3d is an abbreviation for Federal Reporter, 3rd series (the current series of the Federal Reporter, which publishes Federal appeals court decisions ). When you see a citation like x F.3d y, it means "Federal Reporter, 3rd series, volume x, page y". The form "x F.3d at z" means "volume x, page z, but that's the middle of a decision, not its start" (called a "pin cite"). The form "x. F.3d y, z" is another way of saying "the decision starts at page y of volume x, but here we are specifically referring to page z". The part in parentheses indicates which particular court wrote the decision (a particular numbered circuit court of appeals) and in what year. https://en.wikipedia.org/wiki/Federal_Reporter https://en.wikipedia.org/wiki/Federal_Reporter https://en.wikipedia.org/wiki/United_States_courts_of_appeals https://en.wikipedia.org/wiki/United_States_courts_of_appeal... You can often look up the texts of these decisions online in various places, although I don't see a convenient up-to-date free F.3d online anywhere. Originally the concept was going to a library, which would have huge long series of reporters (books that publish court decisions), and you could tell the librarian "I'd like volume 655 of the Federal Reporter 3rd series, please", and then turn to page 85 to see what the First Circuit said on the page in question of its Glik decision. District court decisions (from the trial level) are cited in the same way but with "F.Supp." (a different reporter); Supreme Court decisions are also cited in the same way but the reporter is "U.S." and the court doesn't have to be mentioned in parentheses, because the Supreme Court is the only court whose decisions are published by United States Reports. So you might see Foo v. Bar, x F.Supp. y (D.Somewhere yyyy) ← district court Foo v. Bar, x F.3d y (nth Cir. yyyy) ← circuit court of appeal Foo v. Bar, x U.S. y (yyyy) ← Supreme Court and each one could also cite to a specific page or range of pages within the opinion by using "at z" or "y, z".

ultrahate 10y ago

What a shame that I'm excited that my country still supports my rights as a citizen to some degree. I'm disappointingly satisfied. Our rights are inalienable and self-evidently truthful. How can someone or some court thereafter determine what rights I have?

MichaelBurge 10y ago
> Our rights are inalienable and self-evidently truthful. How can someone or some court thereafter determine what rights I have? I would probably define a right as "A persuasion technique for convincing others to decide disputes in your favor". Then, your rights can be weakened simply by having people not be persuaded by them; and removed legally by having the highest court not be persuaded by them. If somebody asks something like, "Do monkeys have rights?", keep in mind that nothing about the universe changes depending on that answer. No computers will blink their lights on in response to a sensor picking up a right when it scans you. So rights don't exist. Why do people pretend that rights exist, even though they don't? Game-theoretically, collectively pretending that we have a natural-born right to free speech independent from the government reduces the risk that a King will rise up and cause trouble while suppressing the press. Anyone questioning his policies can appeal to the right in their arguments. So we choose to allow ourselves to admit an "appeal to a right" in arguments, because we want others to be convinced as well. So "Why do people not respect my rights?" seems ill-framed, but "Why do people not understand the consequences of allowing a right to be asserted?" is. And there would be no such thing as a "self-evidently truthful" right, only a right where the consequences of allowing it to be asserted in an argument are clearly beneficial.
- spangry 10y ago
  This reminds me of a great (and prescient) bit by George Carlin - https://www.youtube.com/watch?v=m9-R8T1SuG4 https://www.youtube.com/watch?v=m9-R8T1SuG4
  - icebraining 10y ago
    Not prescient. Better informed, perhaps.

deleted 10y ago

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chrisweekly 10y ago

Good news. Curious what you all think about the concept of mandated self-recording _by_ the police. IMHO the (all-too-often realized) potential for abuse of power might reasonably be balanced by such impositions on the privacy or autonomy of those we entrust to enforce and uphold the rule of law. Good cops would have a measure of extra protection from false accusations, and bad cops would have a harder time abusing the power they've been granted.

gregwebs 10y ago

Quote from the ruling: "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." However, note that they actually affirmed the lower court ruling that the police were not liable for violating the first amendment in this case. This is because it was not clear from the courts (before this ruling) that this right existed. They did find that the police violated the fourth amendment by arresting someone for recording a police station (and at the time there was no presumption of a 1st amendment right).

afthonos 10y ago
They did not affirm that the First Amendment was not violated; they explicitly ruled it had. What they affirmed was that it was not so obviously violated that every officer should have known it, and therefore the officers were entitled to qualified immunity, i.e. immunity from being sued because they did their jobs in a way that a reasonable officer could think was lawful.
- Sacho 10y ago
  But isn't the practical effect of this that police officers can continue violating the FA rights of people in this way and then shrugging behind qualified immunity?
  - int_19h 10y ago
    No, because they have firmly established that right by this very ruling. "Although the right was not clearly established at the time of Turner’s activities, whether such a right exists and is protected by the First Amendment presents a separate and distinct question. Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. 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. "
- 10y ago

deleted 10y ago

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nanch 10y ago

New law being written right before our eyes. But the title of the post isn't actually what was found in this case... This PDF is worth reading over a couple times for full understanding. The topic is extremely relevant to each of our lives and thus quite tangible and easy to reason about. The person in this case had to have a federal judgement made against him (the officers were granted qualified immunity [typical]) and THEN he had to appeal the case to obtain this judgement. A lot of work! (And I'm glad he saw it through!) "The officers’ handcuffing Turner and placing him in the patrol car, as alleged in the amended complaint, were not reasonable under the circumstances. We conclude that a reasonable person in Turner’s position would have understood the officers’ actions 'to constitute a restraint on [Turner’s] freedom of movement of the degree which the law associates with formal arrest.'" Kudos to the judges for their sound judgement. "Grinalds and Dyess are therefore not entitled to qualified immunity at this stage of the litigation on Turner’s Fourth Amendment claim that the officers violated his right to be free from warrantless arrest absent probable cause." Epic. "Even if Turner had sufficiently alleged a constitutional violation, Driver acted objectively reasonably in light of the circumstances—namely, by apprising himself of the situation and acting accordingly. Driver is therefore entitled to qualified immunity on Turner’s Fourth Amendment claims." Fair and reasonable judgement. The dissent is interesting and worth-reading. I agree regarding the First Ammendment findings, but I disagree with the arguments against the majority's Fourth Ammendment judgement. For some understanding of how the Federal Judicial System works, it's worth watching this video https://www.youtube.com/watch?v=i_mbk0YhLa0 https://www.youtube.com/watch?v=i_mbk0YhLa0. The law that protects citizens from oppression from officers (as in this case) is United States Code: 42 U.S. Code § 1983 - Civil action for deprivation of rights. It's a short text and you can read it here: https://www.law.cornell.edu/uscode/text/42/1983 https://www.law.cornell.edu/uscode/text/42/1983 (Read it a few times over again to get a good idea of what is stated) In this case, the Court of Appeals for the 5th District ruled on this. You can see a map of the federal districts here: https://en.wikipedia.org/wiki/United_States_courts_of_appeals https://en.wikipedia.org/wiki/United_States_courts_of_appeal...

schoen 10y ago
Note 5th Circuit, not district.

known 10y ago

Never argue with Police; Call a Lawyer;

wallace_f 10y ago

Is anybody capable of putting this into plain English, or ideally, link an authoritative source which does that? For us with no time on our hands. Particular queries: 1 - Does this apply nationally? Where and where doesn't it apply (user @aerovistae & others asked and remains unsettled, debated in comments here) 2 - Does this apply to both video and audio recording? 3 - Are there limits where and when I can record? (public vs private spaces?) 4 - What should one do if police forcibly interfere with your right to record and retain information?

HNLogInShit 10y ago
The gist is that this court intends to settle this 1st-Amendment question with this case. Although no lower court had held that people DON'T have a right to record police (and several had held that they DO), it was not deemed a "settled" matter. Now it is: You can do it. Audio and video.

chmaynard 10y ago

This seems like an empty decision with no real consequences for any of the parties. The court looks good because they came to the correct conclusion. The local police can laugh and continue to violate our constitutional rights with impunity. The plaintiff gets the satisfaction of a favorable ruling, but receives no compensation or even an apology. Our justice system remains corrupt and contented. Move along, there's nothing to see here.

nanch 10y ago

The part you're looking for: "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." Starts at the middle of page 9.

itchyjunk 10y ago

I see a lot of good argument for being able to record an officer on duty. But I am not familiar with the against arguments. One i hear is "privacy of the officer" but it does not make a lot of sense in this context. What are they doing on duty that needs to be a secret? So my question is, what made them think that it was not okay to be recorded or what are strong arguments that are still valid? What situation would you say is an exception where people should not record the cops? would it get in the way of investigation sometimes maybe? Tangentially, what do you think about drones that record stuff? I saw a few videos on you tube where drones were following cops around. Should there be a distinction between cell phone recording and drone recording? Could the officer claim they are being harassed? Thanks.

OliverJones 10y ago

Here's a web story on the subject. The videographer, Turner, is a correspondent for an org called "Photography is not a Crime." For what it's worth, in the bodycam video shown in this story, Mr. Turner appears to be African-American, and the officers appear to be Euro-American. That fact of race is, unfortunately, relevant in 21st century Texas. http://photographyisnotacrime.com/2015/09/02/texas-officers-arrest-man-for-recording-outside-police-department-ban-him-from-setting-foot-on-police-public-property/ http://photographyisnotacrime.com/2015/09/02/texas-officers-...

coding123 10y ago

I'm all for recording. Have a front facing and rear facing dash cam in my car. I want something like Google glass, not as a computer, but as a full time recording device.

greggman 10y ago

So when can we start recording at the border? Or will we have to wait until we all have eye implants for that nonsense to stop?