Circuit Split Arises Concerning the Legality of Video-Recording Law Enforcement

Civilian recordings of police officers are a relatively new concept. The entire world viewed the cell phone video footage of George Floyd. This video was the focal point of the incident and sparked mass protests around the nation. The prosecution played the video in its entirety at the murder trial of Derek Chauvin. Without this video, Chauvin would have likely faced no consequences for his actions. 

One of the first and most well-known recordings of police brutality was the beating of Rodney King in Los Angeles. In those days, civilian recordings of police officers were rare, but now, many instances of police brutality and abuse are caught on camera by concerned civilians. 

A circuit split has arisen regarding whether civilian recordings of police officers is protected under the First Amendment. 

Police officers are government employees. Like any government faction, it is the duty of the citizens to keep them accountable for their actions. Recording police abuse helps keep police officers liable for their abuse and serves as a deterrent for officers to abuse their power. Civilian recordings of police officers are still new, and the law surrounding these videos is developing. When it comes to recording police officers, the First Amendment and the controversial doctrine of qualified immunity conflict with one another. 

Judicial interpretation of the First Amendment has trended toward the idea that freedom of the press applies to freelance recordings. Qualified immunity applies when an officer’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 

The issue in the current circuit split is whether there is a First Amendment right to record the police in public and does this right outweigh the doctrine of qualified immunity. 

The Tenth and Third Circuits held that the right to record police activity isn’t clearly established, however the First, Seventh, and Eleventh Circuits have held that the right is clearly established. 

Both the Tenth and Third Circuits have held that the right to record officers in the performance of their official duties in public spaces was not clearly established b the First Amendment.  The Third Circuit held that although recording police activity falls under the First Amendment Right of access to information, there are reasonable time, place, and manner restrictions to the right to record. The Third Circuit also held that police officers are not liable for retaliation against those who record a video, due to qualified immunity. The officers were not expected to know about the First Amendment rights of their citizens when it came to filming police activity. 

The majority view among the First, Seventh, Ninth, and Eleventh Circuits is that filming the police falls within the First Amendment and it does outweigh the police officer’s qualified immunity right.  In Massachusetts, the First Circuit held that filming government officials carrying out their public duties is a prime example of information that is protected by the First Amendment. The other circuits have similar holdings. The majority of courts recognize that filming and sharing video recordings of abuse by the government is a matter of public interest.

None of the cases mentioned above have progressed to the Supreme Court, but as the public grows increasingly skeptical of the police, this issue is not going anywhere. For more information on First Amendment Rights, follow Attorney DelSignore on Facebook.