In a statement of findings and recommendations filed last week, a US Magistrate Judge for the Eastern District of California affirmed that a woman on searchable probation had the right to videotape three officers who came to her home to search it.

In February 2011, plaintiff Mary Crago was visited by three police officers, including defendant Officer Kenneth Leonard. Leonard was working on the Sacramento Police Department's Metal Theft Task Force, and he was tipped off that Crago may have been involved in a theft involving a vehicle battery. Since Crago was on searchable probation, the officers entered her home—the door was open—and they found Crago “sitting on a mattress, digging furiously through a purse.”

According to court documents, “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.” Crago did not resist the officers' search, but she allegedly told Leonard that she was recording the search on her laptop. Leonard then took her laptop and deleted her recording, telling her that recording was forbidden.

Crago then sued, saying her right to record the police in her home was protected by the First Amendment.

The magistrate who looked at the case this month denied Leonard's request for summary judgment, which would have prevented the case from going to trial. He argued that recording a police officer while conducting official business is not yet “a clearly established right under the First Amendment.”

In recent years, many courts in the US have seen cases that dispute whether the public is allowed to video tape cops in the course of their official business. In 2012, the Supreme Court declined to review a ruling saying that the First Amendment encompasses a right to record the actions of police who are on duty. In May 2014, a federal appeals court said that the public does have a right to film police in public.

Leonard argued that no cases that do assert that taping a police officer is a right involve a probationer. Further, those cases usually say that recording an officer is a right when the recording is made in public, but Crago allegedly recorded the officer in her private home. Because of this, Leonard argued, he should benefit from “qualified immunity,” which prevents government officials from facing civil damages if they don't “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The magistrate judge came down in favor of Crago, however:

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 basis 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 home.

The magistrate judge's ruling must be approved by a US District Judge, and all parties were given until August 19 to file objections to the magistrate's recommendations.