Coping With Unprecedented Connectivity: Citizens and Police

police photo high res

By Alexander (Alex) M. French, Staff Member (Vol. 14)

On April 4, 2015, a North Charleston Police Officer shot and killed Walter Scott. Michael Shlager, the responding officer, reported that he pulled Scott over for a broken tail light. Scott fled on foot and Shlager pursued. Shlager claimed that Scott grabbed Shlager’s Taser and that Shlager shot Scott in self-defense. A bystander’s video showed a conflict far different than Officer Shlager’s report. The video shows Officer Shlager shooting an unarmed Walter Scott in the back as Walter Scott ran away. The video also shows the officer walk back to where the scuffle occurred, pick an object off of the ground and drop it near Scott’s body, many believe this unidentified object was Shlager’s Taser. The sad case of Walter Scott and Michael Shlager shows both the growing importance of video footage as evidence and as a means to hold police officers accountable for their misdeeds.

Most legal conflicts between police departments and citizen-journalists follow a very similar pattern. First the officer arrests the recording citizen for harassment, stalking, or wiretapping.  Second, the police department drops or reduces the charges. Finally, the journalist brings a 42 USCA 1983 civil lawsuit against the police department for violating their First Amendment rights. Most of the case law on this subject comes from 42 USCA 1983 cases on appeal. See e.g.,Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Gravolet v. Tassin, 2009 WL 1565864 (E.D. La. 2009); Robinson v. Fetterman, 378 F. Supp. 2d 534, 538 (E.D. Pa. 2005);.

When an officer arrests a person that is recording him, the would-be journalist’s First Amendment rights are immediately implicated.  When a citizen records a police officer, two legal questions emerge: (1) to what degree are the citizens’ First Amendment rights protected and (2) how reasonable are the officer’s subsequent actions? These questions suggest that one of the problems faced by both police officers and citizen journalists is lack clarity, which can result in the arrests of citizens and bad publicity for police departments. This blog post suggests a solution to strengthen citizens’ First Amendment liberties and to clarify when citizens have a right to record police.

Journalists Interest vs. Law Enforcement Interest

The ubiquity of smart phones in the U.S. creates a universe of opportunities for society, including the opportunity to hold police accountable for their inappropriate actions. The constant presence of recording devices also creates the chance to hold criminal defendants accountable for their actions and exponentially increases the amount of objective evidence admissible in court. However, this opportunity for public accountability comes with its own attendant anxieties and burdens, which usually fall heavily on police officers.

The current state of the law regarding the recording of police officers is that a citizen-journalist has some First Amendment right to record police officers in the pursuit of their public duties, though courts are split on the extent of that right.  In some jurisdictions, the journalist must be “peaceful” and his recording not be performed in the “derogation of any law.Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999). In others, the right to videotape public police activity is “subject to reasonable time, manner and place restrictions[.]” Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).  Finally, despite any First Amendment concerns, “police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations.” Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012). These limitations are considered to test if an officer was justified in arresting a journalist.

Whenever a police officer and a journalist interact, there are many interests at play. On the one hand, the journalist has some First Amendment right to the information he gathers (especially if that information is about the government), seeAm. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 597-598 (7th Cir. 2012),  and an interest in holding citizens and officers accountable. On the other hand, the State has an interest in protecting the privacy and safety of its citizens and police officers. If the law hews too close to the government’s interests, then some police officers will suppress journalistic activity for convenience sake. If the law hews too close to the journalists’ interests, then police effectiveness could be impaired as soon as a citizen pulls out a cell phone. Further complicating this problem is the reality that smart phone ownership is increasing. Any attempt to “put the genie back in the bottle” will be, at best, a waste of scarce law enforcement resources.

The Consent Requirement

Most state wiretapping and eavesdropping laws have a positive consent requirement that makes them especially susceptible to abuse by police. For example, in North Carolina, a person is guilty of wiretapping if they record a conversation between two people “without the consent of at least one party to the communication[.]” Under this statute, if a third party bystander records a confrontation between an officer and a citizen, the bystander has committed a crime and may be arrested at the officer’s discretion. Unscrupulous officers can easily use this law as a justification to arrest almost anyone who records a police action and seize their camera. In order to prevent unnecessary conflicts between journalists and police, state legislatures should presume consent to recording when a citizen-journalist is recording the public activities of a police officer in an antagonistic situation with a citizen.

Adding the aforementioned provision to police recording statutes would have three benefits. First, the addendum would protect citizen-journalists in the cases in which the citizen pulls out his camera and records an officer arresting a third party, because the citizen-journalist would be presumed to have consent to record the interaction and the wiretapping statute would not apply.  Second, this addendum would protect citizen-journalists in cases of secret recording of blatant police misconduct, as consent would be presumed in those cases as well. Finally, this addendum circumvents any situations in which the police are restrained in their work, because the presumption of consent is shattered as soon as the police officer requests that a journalist stop recording his interaction.

We are all facing the reality that our actions could be recorded and then posted to YouTube.  The First Amendment implications regarding citizen-journalists recording police officers are only a natural extension of that reality. Given the ambiguity surrounding citizen-journalists’ First Amendment rights and police officers’ authority, conflict is inevitable.  The best outcome for all stakeholders (judge, police, or journalist) is to limit legal conflict through legislative amendments to current wiretapping and eavesdropping statutes.

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