Mon. Apr 15th, 2024

Federal court reaffirms First Amendment right to film police

Mary D. Fan is a former federal prosecutor in the Southern District of California, current law professor at the University of Washington School of Law, and author of “Camera Power: Proof, Policing, Privacy, and Audiovisual Big Data.” She discusses this recent court ruling and how widely accessible recording is shifting the relationship between the public and the police


Another circuit court has affirmed the First Amendment right of members of the public to record police performing their duties in public. Earlier this month, the 10th Circuit U.S. Court of Appeals denied the qualified immunity claim of a police officer accused of targeting a YouTube journalist/blogger, saying, in part, that the “right to film the police falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power.”

The case centered on events that took place in 2019, when the YouTube blogger and three other people were filming a DUI traffic stop in Colorado and police on the scene called for backup from an officer, after telling that officer about the filming. The officer stood in front of one of the people filming, blocking their view and shining a light into the camera lens. When fellow officers told that officer to leave due to his “disruptive and uncontrolled behavior,” according to the court ruling, he got into his police car and drove directly at the person whose view he’d blocked, right before swerving and blaring an air horn. The blogger sued the officer, alleging retaliation for the exercising of his First Amendment rights, while the officer responded by arguing that qualified immunity protected him from being sued.

Mary D. Fan is a former federal prosecutor, current law professor at the University of Washington School of Law, and the author of “Camera Power: Proof, Policing, Privacy, and Audiovisual Big Data,” which looks at the policy issues raised by public filming of police activity versus police body cameras. She took some time to talk about this recent ruling, some of the concerns that come with filming police, and the ways that the growth of this technology may impact the relationship between the public and the police. (This interview has been edited for length and clarity. )

Q: Your 2019 book looks at the policy issues raised by public filming of police activity versus police. What led you to look at this issue of filming police in your 2019 book, “Camera Power”? How did you become interested in this topic?

A: Things have changed dramatically in a very short time. As a prosecutor in the Southern District of California, I still recall that many police interviews were not recorded. You’d have an officer on the stand saying the suspect confessed to everything, and the suspect will be saying, “No, I did not. The officer is lying. The officer violated my rights.” So, you just had this swearing contest [on the stand] between officers and defendants. At the time, our office wanted to introduce video recordings, really, as a matter of building public trust in the process, so that you didn’t have these allegations of abuse and questions as to why we couldn’t go to the video. This was really tough. My boss had a challenging time convincing several federal agencies to record police interviews. Fast forward to 2015 to the present, when police departments are rushing to adopt police-worn body cameras and policies that will require recording of most law enforcement encounters. It’s a remarkable change and to have seen this culture shift in my career.

Q: Are you able to talk about what initiated that rush to buy cameras around 2014?


A: The protests in Ferguson [Missouri], the outcry over what really happened in the officer-involved killing really impelled police departments to adopt police-worn body cameras. [On Aug. 9, 2014, police officer Darren Wilson shot and killed an 18-year-old, unarmed Black teen, Michael Brown.]

There was a moment of convergence of interests of unlikely partners. You had civil rights advocates joining with police leaders and saying, “We need to put body cameras on officers.” Obviously, from different perspectives. Civil rights activists and victims’ families want to know what happened, want to be able to see what happened from the perspective of protecting civil rights and civil liberties. From a different perspective, you see police leaders also saying that they want to be able to show the public what happened, to be able to get in front of protests and widespread public mistrust, to show a window into what the officers saw. So, you get a convergence of different perspectives around recording the police.

Another major change is the ubiquity of smartphones and smartphone recording. Almost everyone, rich or poor, now has the capacity to record police, in their pocket. So, the shift to police-worn body cameras is not as radical when you know that any member of the public has the means to record at any time. It’s really a battle as to who controls the story these days.


Q: In reading about this 10th Circuit Court decision, I was thinking about some of the history of video recordings of police and those interactions with the public, including the filming of the beating of Rodney King in the early 1990s, to the death of Oscar Grant in the early 2000s, to the death of George Floyd in 2020. Based on your work in this area, what kind of difference has the filming of police made in the public relationship with law enforcement?

A: There are a couple of major shifts. First, is the change in the balance of power in terms of these credibility contests between what police said and what suspects said. When there’s a recording, there is more of an empowerment of members of the public to get the story out, to make a story viral, to control the narrative and galvanize public opinion. Sometimes you get pre-adjudication in the court of public opinion, so it’s a race to control public opinion. Recording the police goes back to as early as 1965, when the Black Panthers would try to record police encounters. Then, when it comes to Rodney King, you just happened to have a plumber who had gotten a Sony Handycam, a pretty advanced technology at the time. That man, George Holliday, happened to be able to record that encounter and then that recording sparked protests, riots, a lot of turmoil and distrust in the police. And yet, it shows the power of recording. The problems that have led to community-police distrust are long-burning, but the ability to quickly galvanize public opinion has changed a lot with technology.

Q: What’s your take on this decision?


A: Every circuit court to decide the question has held that there is a right to record the police. Here, again, we see an interesting and rapid change when it comes to the ability of people to sue the police and overcome qualified immunity for allegedly violating this right to record. What’s interesting behind the 10th Circuit’s decision is, in a way, it’s in keeping with the six prior circuit courts that decided the issue. It’s coming out the same way. Back in August of 2014, this very circuit court did not agree that it was clearly established law, even though there were at least four sister circuit court decisions that recognized the right to record the police.

There’s this culture shift, not just in our nation when it comes to recording the police and the prevalence of videos; it’s also an interesting shift in the law in terms of the willingness to recognize that it’s a clearly established right. When you sue the police, the police enjoy qualified immunity to be able to protect vigorous law enforcement and other principles and interests, the Supreme Court has said. It’s not enough to say that your rights were violated; you have to show that the officer violated your clearly established right, of which a reasonable police officer would have known. If the Supreme Court has said that you have that right, that’s clearly established. If the controlling circuit court in your jurisdiction has said you have the right, it’s clearly established. What happens if the Supreme Court hasn’t decided the issue? If other circuit courts have, but not the circuit court in your jurisdiction? If it’s still clear that you have that right from the lay of the law in other circuits, then you can still say it’s clearly established. I think you also see an evolution in what counts as clearly established law when it comes to recording the police, in tandem in this period between 2014 and the present, with the rise of ubiquitous recording of police encounters, in general, by body-worn cameras and citizen recordings.

Q: Despite similar rulings by six more of the nation’s appeals courts, there is still debate around whether this is a “clearly established” right. Notably, Arizona recently passed a law making it illegal to film police officers within 8 feet or closer, without the officer’s permission. In the research for your book, I understand that you interviewed police officers. What are some of their arguments against public filming of police?


A: There’s a major concern among police officers about selective recording and selective editing to misrepresent what really happened. It’s interesting because fears of selective recording and selective editing are on both sides, from the public, with respect to police recordings. There’s a lot of concern that there will be misrepresentation of encounters, and then there’s sort of a race to have to correct the record and control the story before something goes viral and anger and pain erupt.

When it comes to officer-worn body cameras, there’s going to be some disagreements between line officers who have to wear those body cameras and police supervisors. The idea is, can you imagine having to wear a camera all day long in your job, recording things that you might say when you’re just chatting, and so on? There’s a sense of pervasive recording as a real change in the conditions of one’s employment when it comes to the top officers ordering the line officers to wear cameras, so there’s definitely resistance among some line officers and certainly among unions, as well, especially during the initial implementation of body-worn cameras.

The law recognizes that the government can impose time, place and manner restrictions on the right to record. For example, you can’t pose a risk to others by stepping right up and shining your flashlight into an officer’s face. There are reasonable time, place and manner restrictions to recording. No right is absolute and the law that recognizes that. Officers express their concern that this isn’t just about recording from a safe distance, that it might be that people are getting in the way of an active crime scene or an active shooting or investigation, for example. They might be disturbing a crime scene, might be impeding officers’ ability to secure a scene, or interview witnesses. This concern about interviewing witnesses is particularly acute because, after a crime, especially in communities that bear some of the heaviest burdens of violence and the traumas of violence, witnesses are scared to be seen talking to the police. There are consequences. So, if you know that police are trying to find witnesses and you know that everybody’s recording if you talk to the police, that’s going to chill witnesses coming forward even more.


Another huge concern of officers is just privacy, in general. Police don’t come into your life in your happiest moments when you look great; they come into people’s most traumatic, painful moments, so all of that is being recorded and potentially put on YouTube, etc., and there are privacy considerations.

Q: In what ways do you think this ability to capture more information, from various sources (including in the form of public filming), can better protect these kinds of civil rights and liberties?

A: It’s challenging to claim that your rights are violated, especially if you’re a suspect. Who is a jury going to believe? Usually, an officer in a uniform, not you, especially if you have priors or, generally, are somebody from a marginalized group. Having video proof is a way to address, not all, but some of this imbalance in these credibility contests. Now, video can be misleading, don’t get me wrong. It can be as selective as a witness’s biased accounts because you can do a biased recording. You can record at a certain angle, or just at certain moments, but the idea is that it just brings in more proof beyond an officer’s word against a suspect’s word, or against a civilian’s word.


Q: And in what ways do you think this use of technology is reshaping the relationship between the public and the police?

A: It’s a great question because it’s kind of a painful question because it shows our hope and some of the realities behind the hopes. Around 2014 to 2015, people said to put more cameras on police to rebuild public trust. The reality is, it’s not a technological quick-fix to what ails us. Having more cameras gives us more information, it might bring more justice, but it may not necessarily bring more peace because you’re seeing people dying on camera while community members are begging for a person’s life. Initially, people said to put more cameras on to rebuild trust, but I think, sometimes, seeing the video actually erodes that trust. It’s difficult because you’re not going to see the many, many times when officers help people at their worst moments being broadcast on the evening news. What you’re going to see on the news is that worst moment with a particular officer who may have a history of misconduct, but you’re not going to see all of the other officers who are doing a hard job every day, protecting the public. So, it’s a more complex phenomenon in terms of whether or not it’s going to rebuild public trust.