Every week brings another headline about yet another citizen arrested and charged with wiretapping or eavesdropping (or sued civilly for invasion of privacy) for recording police officers acting in the line of duty. Indeed, a 41-year-old mechanic in Illinois currently faces life in prison merely for recording officers issuing a citation.
Social media offers a new and more effective way to get those videos out to the public. Just type in the search term "police brutality" into YouTube and see how many results pop up. This trend will only accelerate as Facebook-linked video recorders like the "Eyez" hit the market. So the public across the country need to know once and for all: is recording cops lawful?
My argument: yes. Now, before you click the "record" button, keep in mind that not all courts (and certainly not all police officers) agree. But almost every other court to consider the issue has reached the same conclusion. Here's why.
The Right to Hold Public Officials Accountable Is Enshrined in the First Amendment and Our System of Ordered Liberty
Our democratic system of ordered liberty cannot tolerate a rule of law that permits public officials to keep “private”—and, hence, free from public scrutiny—the manner in which they choose to enforce the law against private citizens. That fundamental principle is part and parcel of the right of open debate on issues of public importance enshrined in the First Amendment to the U.S. Constitution. See, eg, Richmond Newspapers v Va, 448 US 555, 586-88 (1980) (Brennan, J concurring) (“the First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government”); Houchins v KQED, Inc, 438 US 1, 11 (1978) (“There is an undoubted right to gather news from any source by means within the law”) (citations omitted); Branzburg v Hayes, 408 US 665, 681, 707 (1972) (“news gathering is not without its First Amendment protections, . . . for without some protection for seeking out the news, freedom of press could be eviscerated”). This First Amendment right to gather “news” applies equally to all citizens, not just the professional press.
When public officials restrict access to information about their official activities, they are “selectively control[ling] information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment ‘did not trust any government to separate the true from the false for us.’ They protected the people against secret government.” Detroit Free Press v Ashcroft, 303 F3d 681; 683 (CA6, 2002) (quoting Kleindienst v Mandel, 408 US 753, 773 (1972)). “Secret government”—law enforcement outside the scope of public scrutiny—is precisely what allowing cops to suppress video of themselves would permit.
The First Amendment Severely Limits Public Officials’ Ability to Assert Personal Privacy in Their Work-Related Speech
Speech by public officials carries few, if any, of the personal rights and privileges associated with private speech. Only five years ago, the U.S. Supreme Court reiterated “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Garcetti v Carbalos, 547 US 410, 421 (2006). “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.” Likewise, the landmark case of New York Times Co v Sullivan, 376 US 254, 279-280 (1964), established that a public official could not recover for “a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice,’” a nearly insurmountable burden of proof. This holding flowed from our society’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
Accordingly, several courts have held that recording of police officers and other public officials in the course of carrying out their duties is directly protected by the First Amendment. See, eg, Smith v City of Cumming, 212 F3d 1332, 1333 (CA11, 2000) (“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”); Alvarado v KOB-TV, LLC, 493 F3d 1210, 1219-20 (CA10, 2007) (dismissing privacy lawsuit by undercover police against videographer on First Amendment grounds); Gilles v Davis, 427 F3d 197, 212 (CA3, 2005) (“videotaping or photographing the police in the performance of their duties on public property may be a [First Amendment] protected activity”); Fordyce v. City of Seattle, 55 F3d 436, 439 (CA9, 1995) (recognizing a “First Amendment right to film matters of public interest”); Blackston v Alabama, 30 F3d 117, 120 (CA11, 1994) (First Amendment protects right to film public meetings). These federal constitutional principles severely curtail, as a matter of law, the conceivable range of privacy interests that on-duty officers could assert.
Police Officers Are Particularly Subject to Public Scrutiny
Police officers are the epitome of a public servant, whose official words and deeds are subjects of legitimate public scrutiny. As recently as June 2010, the United States Supreme Court held that “a law enforcement officer . . . should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications.” City of Ontario v Quon, 130 S Ct 2619, 2631 (2010).
Courts around the country universally echo this reasoning:
Law enforcement officials ... necessarily exercise State power in the performance of their duties. All police officers are empowered to further the preservation of law and order in the community, including the investigation of wrongdoing and the arrest of suspected criminals. Even patrol-level police officers are vested with substantial responsibility for the safety and welfare of the citizenry in areas impinging most directly and intimately on daily living: the home, the place of work and of recreation, the sidewalks and streets. Further, although a patrol officer such as the plaintiff is "low on the totem pole" and does not set policy for the department, abuse of the office "can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss. All police officers have the ability and authority to exercise force. We conclude, in line with the vast majority of other jurisdictions, that the abuse of a patrolman's office can have great potentiality for social harm; hence, public discussion and public criticism directed towards the performance of that office cannot constitutionally be inhibited by threat of prosecution under State libel laws.
Rotkiewicz v Sadowsky, 730 NE2d 282, 288 (Mass, 2000) (emphasis added); Bozeman Daily Chronicle v City of Bozeman Police Dep't, 859 P2d 435, 440 (Mont, 1993) (explaining “the position of great public trust which law enforcement officers occupy” as compared to other public officials; “Specifically, the nature of the office [job] mandates that the office holder [officer] be properly subject to public scrutiny in the performance of his duties, and the public has the right to be informed of the actions and conduct of such office holders [officers].” (brackets in original)). Consequently, law enforcement personnel of every rank and function are public figures for First Amendment purposes, and—as illustrated below—no expectation of privacy in their official law enforcement actions.
Virtually All Courts to Address the Issue Have Held That Police Officers Cannot Have a Reasonable Expectation of Privacy In the Performance of Their Public Law Enforcement Duties
Courts applying the U.S. Constitution and the laws of Washington, New Jersey, Missouri, and Pennsylvania (informed and limited by the above-mentioned First Amendment principles) have held that police officers performing their law enforcement duties cannot objectively expect their actions to be private and hence free from unauthorized recording.
One of the earliest cases point was State v Flora, 68 Wn App 802; 845 P2d 1355 (Wash Ct App, 1992). There, a private citizen recorded his own arrest “because he feared the deputies would assault him and use racial slurs as they had done in the past.” He was convicted of criminal eavesdropping. In reversing the conviction, the Washington court noted a lack of authority allowing “public officers [to assert] a privacy interest in statements uttered in the course of performing their official and public duties,” and held that “the police officers in this case could not reasonably have considered their words private.” In Flora and its progeny, “Washington courts have refused to transform the privacy act into a sword available for use against individuals by public officers acting in their official capacity.” Johnson v Hawe, 388 F3d 676, 682 (CA9, 2004) (internal quotation omitted) (upholding a §1983 action against a police chief who arrested a citizen for videotaping the chief “in the performance of his public duties”).
Across the country, “[c]ourts have held that police officers do not have a reasonable expectation of privacy when they are interacting with suspects.” Hornberger v. ABC, 799 A2d 566, 594 (N.J. Super. 2002) (dismissing eavesdropping charges against television station that used hidden cameras to record police searching a car); see also Hart v City of Jersey City, 308 NJ Super 487, 493; 706 A2d 256 (NJ App Div, 1998) (“police officers, because they occupy positions of public trust and exercise special powers, have a diminished expectation of privacy”); Commonwealth v Henlen, 522 Pa 514; 564 A2d 905 (Penn, 1989) (finding no reasonable expectation of privacy for police officer who was recorded interrogating a prison guard in closed room); Rawlins v Hutchinson Pub Co, 543 P.2d 988, 993 (Kan, 1975) (“a public official, a fortiori, has no right of privacy as to the manner in which he conducts himself in office. Such facts are ‘public facts’ and not ‘private facts.’ Hence, a truthful account of charges of misconduct in office cannot form the basis of an action for invasion of privacy.”) Such expectations are objectively unreasonable, even where officers subjectively believe their words to be private:
Clearly the officers’ subjective expectations [were] that their communication would not be intercepted . . . . The objective reasonableness of the subjective expectations of the officers, however, is another matter. The undisputed facts show that the tape-recorded incident took place in a public jail and between police officers and a prisoner. These are the only material facts necessary to prove, as a matter of law, that it was not objectively reasonable for the officers to expect that their conversations would not be intercepted.
Angel v Williams, 12 F3d 786, 790 (CA8, 1993) (applying Missouri law). Because society entrusts police officers with unique license to deprive others of liberty, the manner in which they use those powers vis-à-vis private citizens is inherently a subject for public scrutiny, and not the officer’s own private concern.
Massachusetts Shows What Happens if First Amendment Rights Are Not Protected
In the widely criticized decision Commonwealth v Hyde, 434 Mass 594; 750 NE2d 963 (Mass, 2001), a motorist was convicted of eavesdropping for recording his traffic stop by police. A divided Massachusetts Supreme Court upheld the conviction. The court sidestepped Flora’s rejection of privacy protection for police acting their official capacities by noting that Massachusetts’ eavesdropping statute—unlike those in most other states—outlawed all unauthorized recording, whether or not the recorded persons had a reasonable expectation of privacy.
Two of the six justices dissented, lamenting that, had the Rodney King beating occurred in Massachusetts, George “Holliday would have been exposed to criminal indictment rather than lauded for exposing an injustice.” The majority did not disagree, but was nevertheless unmoved. It relied on the plain text of the statute “in favor of speculation as to how an imaginary scenario might have played out, had the Rodney King episode occurred in Massachusetts."
Massachusetts Chief Justice Marshall saw this development as a grave threat to our Republic:
Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals when they seek to hold government officials accountable by recording—secretly recording on occasion—an interaction between a citizen and a police officer.
Reprisals by Police Against the Citizens Who Record Them Are Inevitable Without Clear Judicial Guidance
The instinct to suppress video recordings of their misdeeds is not unique to the law enforcement officers of any particular jurisdiction. And in light of the ever-increasing ubiquity of audiovisual recording technology in modern society, officers and other public officials will have more opportunities to initiate such reprisals. Last year, 25-year-old motorcyclist Anthony Graber used a helmet-mounted camera to record his traffic stop by a plain-clothes officer in Maryland. After posting the clip to the internet site YouTube, police raided Graber’s home, confiscated his computer and camera, and charged him with wiretapping—a felony carrying a possible sentence of 16 years’ imprisonment.
The incident sparked a torrent of news coverage and editorials decrying the charges. The same publications also note the disturbing increase in such arrests in recent years. (USA Today, July 17, 2010) (“This is an abuse of prosecutorial authority and a misinterpretation of state law. But it's typical of the attitude of too many prosecutors and police toward people who record their encounters with law enforcement”); (ABC News, July 20, 2010) (“Arrests such as Graber’s are becoming more common along with the proliferation of portable video cameras and cell-phone recorders”); (Boston Globe, Feb. 3. 2010) (“in Massachusetts and other states, the arrests of street videographers, whether they use cellphones or other video technology, offers a dramatic illustration of the collision between new technology and policing practices”).
Notably, those charged with interpreting the law in these States continue to reject such charges. On July 7, 2010, the Maryland Attorney General responded to the Graber incident by endorsing the conclusion that “a police stop of an individual necessarily is not a ‘private conversation.’” (emphasis added). Following Flora, Henlen, Hornberger, and similar cases—and distinguishing Massachusetts’ Hyde decision—the Attorney General opined that a reasonable expectation of privacy is “an unlikely conclusion as to the majority of encounters between police and citizens, particularly when they occur in a public place and involve the exercise of police powers.”
In a September 27, 2010 opinion, Judge Emory A. Plitt agreed, and dismissed the eavesdropping charge against Graber, holding that, “[i]n this rapid information technology era in which we live, it is hard to imagine that either an offender or an officer would have any reasonable expectation of privacy with regard to what is said between them in a traffic stop on a public highway.” The thoroughly researched opinion concludes with the following reflection:
Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. “Sed quis custodiet ipsos cutodes” i.e., “Who will guard the guards themselves?”
Many courts, however, have yet to pass on the issue. Therefore, police and prosecutors in those jurisdictions remain free to interpret the law as they see fit. “Even if these cases do not hold up in court, the police can do a lot of damage just by threatening to arrest and prosecute people. . . . Most people are not so game for a fight with the police. They just stop filming. These are the cases no one finds out about, in which there is no arrest or prosecution, but the public's freedoms have nevertheless been eroded” (Time, Aug. 4, 2010).
By contrast, thanks to the clear guidance of the Flora decision, police officers in Washington State know unequivocally that the conversations they have with citizens in their official capacities are not private. See, eg, Johnson, supra (“Because it was clearly established under Washington law at the time of the arrest that recording a police officer in the performance of his public duties was not a violation of the Privacy Act and it was unreasonable for Chief Nelson to believe otherwise, we hold that the Chief is not entitled to qualified immunity”); Barela v City of Woodland, 358 Fed Appx 857, 859 (CA9, 2009) (same, following Johnson and Flora).
Citizen Video Recordings Are Effective in Curbing Unlawful Conduct by Police
Audiovisual recording empowers citizens to document abuses of power by law enforcement officers that would otherwise never be held accountable. Data collected by the United States government suggests that most police officers will not report even serious misconduct by a fellow officer. The entire nation, of course, is familiar with the video of Rodney King’s March 3, 1991 beating by Los Angeles police, which George Holliday, a private citizen, recorded with his camcorder. Without Holliday’s recording, however, it is probable that the officers involved would not have been convicted in federal court, and the Christopher Commission, which revealed widespread corruption in the Los Angeles Police Department, would (by the Commission's own admission) never have been formed. Cell phone videos taken by onlookers were the key evidence against the San Francisco officer convicted of manslaughter in the January 1, 2009 fatal shooting of Oscar Grant.
Video evidence has been no less useful in holding law enforcement officers accountable in my home state of Michigan. In November 2009, a Lansing police officer was disciplined after video evidence emerged showing him tasering a handcuffed and subdued suspect. In April 2005, “videotape evidence played a key role in convincing prosecutors to charge a Michigan State Police trooper with second-degree murder in the . . . shooting of a homeless man” in Detroit. Similar examples abound from across the country and the globe.
This is a public service that benefits both society and police departments. Advocacy groups have recognized the power of a camera-armed citizenry. In 2006, for example, the ACLU responded to repeated accusations of police misconduct in St. Louis by distributing free video cameras to local residents, for the purpose of documenting any such incidents.
Police departments themselves have acknowledged the social utility of such precautions. St. Louis’ police chief, for example, responded to the ACLU’s plan by saying, “It’s legal and there’s nothing wrong with it.”
And in December 2009, “San Jose police, under fire for interactions with the public that have turned violent launched a pilot project equipping officers with headmounted cameras to record contacts with civilians.” “Officers will activate the cameras . . .every time they respond or make contact with a person.”
Without question, society as a whole around the country is moving toward more video recording of police officers acting in the line of duty, not less—and our democracy is healthier for it. Shielding public servants acting in official capacities from embarrassing public scrutiny simply is not worth the price of eroding our civil liberties.
