The First Amendment Rights

of the Citizen Photographer

A New Form of Journalism Develops from Modern
Technology

It was the video that made history; the beating of Rodney King.

March 3, 1991, L.A. citizen George Holliday grabbed his video camera and taped a
traffic stop by the Los Angeles police department from the balcony of his apartment,
gave the tape to TV station KTLA and the rest is history. This otherwise routine
traffic stop would reveal the violence that can be inflicted on an individual by the
police that are here to protect and to serve. It would be the first of many to come
from citizen journalists.

The Supreme Court has observed, the First Amendment goes beyond protection of
the press and the self-expression of individuals to prohibit government from limiting
the stock of information from which members of the public may draw. [2]
Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) establishes the
protection of First Amendment rights to the individual to record government officials
in the course of duty. "The First Amendment protects the right to gather information
about what public officials do on public property, and specifically, a right to record
matters of public interest.
Technologyespecially cellphones and social mediaexpands the breadth of
citizen oversight. Technology has the potential to provide a crucial mechanism of
accountability amid high rates of police/citizen contact.[3]
The filming of government officials in the performance of their duties in a public
place, including police officers, easily conforms to these principles. [3]

Sharp v. Baltimore City Police Department, Federal courts have recognized that
recording devices are a form of speech through which private citizens may gather
and disseminate information of public concern, including the conduct of law
enforcement officers.
The Department of Justice became involved in this case in January 2012.
Surprisingly, they did not take the side of the police, choosing instead to draft policy
and training guidelines for the police to follow concerning citizens who video and
audiotape their actions. The DOJ served the letter on counsel for the parties,
taking the position that if Sharp and the Baltimore PD were to settle the case, any
settlement should require that the police department adopt "policy and training
requirements that are consistent with important First, Fourth and Fourteenth
Amendment rights at stake when individuals record police officers in the public
discharge of their duties. [6]

The DOJ also stated that members of the police department, "should not place a
higher burden on individuals to exercise their right to record police activity than they
place on members of the press. "this princip[le] is particularly important in the
current age where widespread access to recording devices and online media have
provided private individuals with the capacity to gather and disseminate newsworthy
information with an ease that rivals that of the traditional news media.[6]
By becoming involved in Sharp, the DOJ is making these guidelines clear and
available, this means that officers will have a harder time escaping citizen lawsuits
on a "qualified immunity defense" by claiming that they did not know they were
violating the First Amendment. [6]

The DOJ issued this statement regarding the policies that allow individuals to videotape or
photograph police activities:
affirmatively set forth the First Amendment right to record police activity." Policies should inform police
officers that the right to record the police flows from the First Amendment and is of constitutional dimension.
describe the range of prohibited responses to individuals observing or recording the police." Policies should
specifically tell police officers what they are not allowed to do with respect to citizens that are recording them,
including describing actions that require a warrant and stating that police are prohibited "from destroying
recording devices or cameras and deleting recordings or photographs under any circumstances.
clearly describe when an individual's actions amount to interference with police duties." In order to prevent
the use of charges such as obstruction of justice to punish citizens who exercise their First Amendment
rights, policies should "set forth with specificity the narrow circumstances in which a recording individual's
interference with police activity could subject the individual to arrest.
provide clear guidance on supervisory review." Policies should clearly state when officers in the field must
seek guidance from a supervisor before taking action with respect to a citizen.
describe when it is permissible to seize recordings and recording devices." Policies should inform police
officers about warrant requirements, require care so that any consent to search and seizure is not coerced,
inform officers that the limited circumstances justifying warrantless seizure of a camera do not also justify a
warrantless search of the camera's contents, and inform officers that search and seizure of a recording
device can be an unconstitutional prior restraint under the First Amendment. [6]

Allegations against the police are not often pursued. One relative example is Lyons
v. City of Los Angeles, 615 F.2d 1243 (1980) Adolf Lyons was stopped by LAPD
officers and subsequently put in a choke hold and rendered unconscious. Lyons
suit unsuccessfully attempted to change the permissibility for the police to use a
chokehold on citizens as a police tactic to subdue the person. He was not
successful. For decades, citizens have reported abuse from police officers to no
avail. The allegations were not investigated or eventually dismissed.
The citizen journalist is in a precarious situation. When one finds themselves as a
witness to police activity, either in a negative or positive way, they now have the
ability to make a record of it. It is then difficult to not be named as a witness when
the tape is released for the public to see. They are then scrutinized by the subjects
of their video; the police.

April 12, 2015, Baltimore, Maryland. Police arrest Freddie Gray. Freddie Gray died
of as the result of a severe spinal cord injury. The investigation still continues as to
what really happened to him while he was in police custody that lead to his fatal
injury. Had someone taped the entire incident, then perhaps the truth would be
known. The woman who shot the Freddie Gray video only wanted to reveal her first
name, Kiona.

Emily Good is arrested in her front yard on Aldine Street in Rochester New York
She was videotaping police conducting a traffic stop in front of her house. Her friend
and neighbor, Ryan Acuff, retrieves the camera and continues to tape her arrest.

She was arrested on charges of obstructing governmental administration which is a

criminal misdemeanor. On June 27, 2011, charges were dropped against her. It was
agreed that she did in fact have a right to record police officers in the course of their
duties in a public area; her front yard.

The 1st U.S. Circuit Court of Appeals held on May 23, 2014 that
there is, indeed, a First Amendment right to record a traffic stop,
although that right is not unlimited. [5]
Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986) ensures the
publics right to gather information about their officials. The ability
of citizens to record the activities of police officers in the course of
their duties not only aids in the uncovering of abuses but also may
have a salutary effect on the functioning of government. It is duly
noted, many governmental processes operate best under public
scrutiny. [2]
The following cases are most certainly relevant to be held to
public scrutiny.

April 4, 2015
North Charleston, South Carolina
Feidin Santana used his cell phone to record police officer Michael Slagle
as he fired eight shots into the back of Walter Scott who had just been
stopped for a broken taillight.

"I recorded the video so that maybe he can feel that someone is there.
There were just the three of us in that moment. I couldn't tell what was going
to happen, so I just wanted him to know that he's not by himself." Feidin
Santana

Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995) and Adkins v. Limtiaco, _
Fed. App'x _, No. 11-17543, 2013 WL 4046720 (9th Cir. Aug. 12, 2013) both give First
Amendment rights to an individual to film police officers in their course of duty.

As a result of the actions of Mr. Santana filming police

officer Michael Slagle, the true details of the incident
were in clear evidence that Officer Slagle had
committed a crime by shooting and killing an unarmed
man. He was subsequently fired and arrested for the
murder of Walter Scott. If not for Feidin Santana and
his quick thinking to record the incident, the result
would have most likely been determined to be a
legitimate and proper course of action for the police
officer and the incident would be termed a good
shoot.

October 1, 2007
Simon Glick recorded an arrest with his cell phone at Boston Common.
He was arrested for violating the state's wiretap law, aiding the escape of a
prisoner, and disturbing the peace.

Glik v. Cunniffe 655 F.3d 78 (1st Cir. 2011), held that the First Amendment
protects a right to openly video record and audio record police officers in
public. ("[A] citizen's right to film government officials, including law
enforcement officers, in the discharge of their duties in a public space is a
basic, vital, and well-established liberty safeguarded by the First
Amendment."

Musumeci v. U.S. Department of Homeland Security S.D.N.Y., Index No. 10 CIV 3370 (direct)
November 9, 2009, Antonio Musumeci was arrested in a public plaza outside of the Moynihan
Federal CourthouseinManhattan while he videotaped a political protest. He was taping
protestor, Julian Heicklen, when Federal Protective Service Inspector Clifford Barnes arrested
Heicklen. Musumeci stepped back and continued to tape the arrest. Musumeci was grabbed
and forced to the pavement and arrested on Code of Federal Regulations Title 41 Subpart C
Conduct on Federal Property Photographs for News, Advertising or Commercial Purposes
102-74.420. The New York Civil Liberties Union represented Musumeci in his lawsuit filed on
April 22, 2010.

Musumeci v. U.S. Department of Homeland Security S.D.N.Y., Index No. 10 CIV 3370 (direct)

On Oct. 13, 2010, federal judge, Richard J. Holwell, signed a

settlement in which the federal government agreed that no
federal statutes or regulations bar photography of federal
courthouses from publicly accessible property. [4]
Michael Keegan, the chief of public and legislative affairs, spoke
on behalf of the Federal Protective Service, settlement of Mr.
Musumecis lawsuit clarifies that protecting public safety is fully
compatible with the need to grant public access to federal
facilities, including photography of the exterior of federal
buildings. [4]

This settlement secures the publics First Amendment right to use cameras in
public spaces without being harassed, said a statement issued by Donna
Lieberman, the executive director of the New York Civil Liberties Union, which
represented Mr. Musumeci in Federal District Court. [4]

Commonwealth v. Jackson, 370 Mass. 502, 507 (1976).

The Supreme Judicial Court held that an individual needs to have actual
knowledge of a recording and that such knowledge can be shown where there are
clear and unequivocal objective manifestations of knowledge.

Police officers as well as any other individual must be aware that they are being
photographed or video-recorded in order for the precedent set by Commonwealth v
Jackson to apply. The First Amendment protects the rights of the camera operator
to record an event as long as it is in a public forum and is being done with the
subjects knowledge.
There are numerous incidents in the headlines of police officers trying to stop
citizens from recording them in the line of duty. Whether they are making a traffic
stop or an arrest, they try to make the person recording the incident to stop.
Sometimes, they use brutality to get their point across. One such incident would be
the case of Beatriz Paez.

October 21, 2015

Beatriz Paez was taking a walk through her neighborhood when she came upon
a scene where a number of police cars and other law enforcement vehicles
were parked and officers were obviously performing their civic duties. Paez took
out her cell phone and started to record the scene. A deputy U.S. marshal
comes from the crowd and abruptly, and without explanation, stops her taping.

This is the footage from Beatriz Paezs cell phone. The footage was recovered
and this is the incident from her perspective.

The incident is currently under investigation. The Southgate police issued a

statement that clearly explains that the officer who was filmed grabbing the
cellphone was a deputy U.S. marshal and not a Southgate police officer. They
emphatically stated that they did not have the power to investigate a U.S.
marshal.

Congresswoman Janice Hahn (D-San Pedro), whose district includes South Gate,
called for an independent investigation by the Department of Justice. I was
alarmed and upset by the actions of the law enforcement officer captured on the
video, she said in a statement. We must hold all who are sworn to protect and
serve accountable and send a clear message that they are not beyond the law. [1]
There is no situation in which an officer can intentionally grab and destroy a
camera being used to lawfully record law enforcement, said Hector Villagra,
executive director of the American Civil Liberties Union of Southern California. The
officers conduct is a blatant and deliberate violation of the Constitution and his
duties as an officer to abide by the law. [1]

Thornhill v. Alabama, 310 U.S. 88, 101 -102 (1940) states: "The freedom of speech
and of the press guaranteed by the Constitution embraces at the least the liberty to
discuss publicly and truthfully all matters of public concern without previous restraint
or fear of subsequent punishment.
Feidin Santana stated that he was afraid to come forward with his video tape of
Walter Scott being shot by then policeman Michael Slagle. He told MSNBC News
during an interview, I felt that my life, with this information, might be in danger. I
thought about erasing the video and just getting out of the communityand living
someplace else. [3]
Bystanders who are taping a police activity can possibly have the tables turned and
be accused of being a participant in the crime; simply because they are there.
Police are adept at providing consequences to individuals who may act as witness
against them by means of a video camera. Officials can check for outstanding
warrants on the individual. This is why many witnesses do not want to reveal their
names; they do not want to be the subject of an investigation that could be waged
against them.

Emily Goods neighbors were targeted by the police while they gathered for a rally
to support her in her arrest for filming police officers during a traffic stop in
Rochester, New York. Police ticketed the neighbors cars while they were parked
along a street outside of the meeting place for Emily Good. Four policemen were
sent to issue tickets for the cars being parked in excess of a foot from the curb.

The U.S. marshal did not think about the fact that someone across the street
could be filming his actions. The lady taping the incident refused to reveal her face
on camera in a CNN interview as well as not revealing her name. She was afraid
to allow this information to go public.

The woman who taped Freddie

Gray as police arrested him
asked that only her first name be
used; Kiona.

Branzburg v. Hayes408 U.S. 665 (1972) states, Newsmen have no constitutional right
of access to the scenes of crime or disaster when the general public is excluded. This
does not mean that accident scenes are completely off limits. It does mean that a
photographer does not have a constitutional right to be there. [7]
The citizen journalist does not have unlimited access to any or every site where the
police are investigating. One such place is an accident scene. If the public is not
allowed, then, neither is the press or the citizen journalist.
Recording on public property is acceptable and covered by the First Amendment but
filming or photographing on private property is a different matter. If the owner of the
property does not give permission to use their property, the photographer or
videographer can be arrested for trespassing.

George Holliday, the man who is recognized as producing the first viral video with
his videotape of the Rodney King beating, received little to nothing in compensation
for his video. Citizen photographers are not receiving compensation for their videos,
but this could be changing soon. Colorado House Bill 15-1290 allows for citizen
photographers who are harassed by police who interfere with them while taping to
receive at least $15,000 in compensation. It passed through the House and is on its
way to being made into law.
The Colorado Association of Chiefs of Police claim that they dont have a problem
with citizens recording the police while performing their duty. Although, they dont
feel that the monetary consequence is fair claiming, it exposes law enforcement to
stricter liability standards than other government officials.
The CACP does not believe that the people who put their lives at risk every day
should have different standards of liability than anyone else in government, group
lobbyist, AnneMarie Jensen, said in a statement to the Denver Post. [9]

Phil Lynn, manager at the International Association of Chiefs of

Police (IACP), based in Alexandria, Virginia, made available the
February IACP policy paper titled Recording Police Activity. This is
a photography guideline to assist police officers to know when
the recording activities of an individual fall outside of the lines of
acceptable behavior which is covered by the First Amendment.
Keeping a reasonable distance from officers.
Not repeatedly engaging officers with questions or
distractions that unduly hinder police activities to protect life
and safety, or the integrity of a crime scene.
Not positioning "themselves in a manner that would either
passively or actively hinder, impede officers, first responders
or traffic.
Not filming sensitive police operations and tactical situations
if they could reasonably jeopardize the safety of officers or
third parties, for example, a police response to a school
shooting.
Not violating the privacy of victims and witnesses. [8]

Recently, an Ohio policeman decided to exercise good judgement in the arrest of

suspect Michael Wilcox who allegedly murdered his fiance and best friend and
now was suicidal. New Richmond police officer Jesse Kidder refused to shoot him
even though he begged the officer to shoot him. Did the presence of a body camera
on Officer Kidder influence his decision or would he have reacted the same way
without being caught on camera?

The rise of citizens and their newly recognized ability to capture images at any
moment may have a positive effect on the actions of police officers. A new addition
that is being utilized by police departments is to equip their officers with body
cameras which can serve as a witness to their actions in the course of duty.
The advent of citizen journalists continues to grow and this is a direct result of
American citizens exercising their First Amendment rights.

References
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Apr.
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[2] Volokh, Eugene. "First Amendment Right to Openly Record Police Officers in
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