First Amendment right to videotape police extends even to probationers, and to one’s own home as well as public places

From Crago v. Leonard (E.D. Cal. Aug. 5, 2014) (magistrate judge’s recommendation):

Defendant Officer Kenneth Leonard is a police officer for the Sacramento City Police Department. Since February 2011, he has been assigned to the Police Department’s Metal Theft Task Force. On December 7, 2012, defendant received information that plaintiff had recently been involved in metal and vehicle battery theft. Defendant, knowing that plaintiff was on searchable probation, went to plaintiff’s house that afternoon to conduct a probation search.

Defendant, along with three other officers, knocked on the door to the residence to announce their presence. The door was answered by Donna Schacher, who led defendant and the other officers to the garage, where plaintiff resided. When the officers arrived at the garage, the door was open and defendant observed plaintiff sitting on a mattress, digging furiously through a purse. Defendant took the purse away from plaintiff and searched the purse. Inside the purse, defendant found a four inch glass pipe and a small baggie with white residue. The white residue subsequently tested positive for methamphetamine.

The complaint alleges that during the search, defendant took away her laptop after she informed him that she was recording the search. Plaintiff further alleges that defendant deleted her recording and told her that recording was not allowed. Plaintiff contends that this conducted violated her rights protected by the First Amendment….

“Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right.” To be “clearly established” “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.”

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. As early as 1995, the Ninth Circuit has recognized a “First Amendment right to film matters of public interest.” 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.”).

Defendant argues, however, that there is a split in authority which demonstrates that the right to record a police officer conducting official business is not a clearly established right under the First Amendment. Relying on Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir.2010), and Szymecki v. Houck, 353 F. App’x. 852 (4th Cir.2009) (per curiam), defendant argues that there is “conflict and ambiguity amongst the Court of Appeals” and therefore defendant is entitled to qualified immunity.

The cases cited by defendant run against the majority of circuit authority, as well as the weight of district-court decisions. See Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 601 n. 10 (7th Cir.2012) (finding that the First Circuit’s decision in Glik aligns with authority from other circuits). Furthermore, and more importantly, the law in this circuit has been well established for several years that there is a “First Amendment right to film matters of public interest.” Fordyce, 55 F.3d at 439. The Ninth Circuit’s more recent unpublished case, relying in part on Fordyce, recognized the breadth of that ruling by finding that the law clearly established as to the constitutional right to photograph an accident scene during a public investigation. Adkins v. Limtiaco, 537 F. App’x. 721, 722 (9th Cir.2013) (citing City of Houston v. Hill, 482 U.S. 451, 461 (1987) and Fordyce, 55 F.3d at 439). For similar reasons, the court finds that under the law of this circuit there is and was on December 7, 2012, a clearly established right to record police officers carrying out their official duties.

Defendant attempts to narrowly define the issue in this case for purposes of the immunity analysis. He argues that there are no cases holding that a probationer, such as plaintiff, has a clearly established First Amendment right to record a search of her residence conducted pursuant to her searchable probation status. According to defendant, all relevant case law, including the cases previously discussed, only establish the right to record a police officer in public.

While the distinction is noted, it is one lacking any meaningful difference here. The location of where the video recording was being made was plaintiff’s place of residence. If a plaintiff has a clearly established constitutional right to record from a public place where the plaintiff has the lawful right to be, a plaintiff surely has such a right in his or her home.

There simply is no principled bases upon which to find that although the right to record officers conducting their official duties only extends to duties performed in public, the right does not extend to those performed in a private residence. The public’s interest in ensuring that police officers properly carry out their duties and do not abuse the authority bestowed on them by society does not cease once they enter the private residence of a citizen.

To the contrary, there appears to be an even greater interest for such recordings when a police officer’s actions are shielded from the public’s view. Further, there is no reason to believe that plaintiff’s status as a probationer would diminish the public’s interest in how police exercise their authority in a private citizen’s homes….

Defendant further contends that even assuming that plaintiff had a First Amendment right to record the search, it would have been objectively reasonable for defendant to believe that the right to record did not apply in this case because plaintiff, as the subject of the search, may have obstructed his ability to perform his duties. At least one court has indicated that the right to record police officers carrying out their duties is limited to situations where the recording of the police officer does not interfere with the performance of his duties. See Glik, 655 F.3d at 84 (“Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.”).

But defendant fails to identify the specific acts by plaintiff that were interfering or immediately threatening to interfere with the officer’s performance of his duties. There is no evidence before the court that would allow for the finding that plaintiff was interfering with defendant’s ability to perform his duties. The only evidence submitted by defendant in support of his motion for summary judgment is his declaration. That declaration, however, is silent as to any facts regarding the laptop plaintiff used to record defendant. There are no statements about what plaintiff was actually doing while recording plaintiff, nor an explanation of how plaintiff was actually obstructing defendant from performing his duties. Thus, defendant has failed to meet his burden of establishing that he is entitled to qualified immunity….

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · August 11