

A divided federal appeals court is ruling for the First Amendment, saying the public has a right to film the police. But the 5th US Circuit Court of Appeals, in upholding the bulk of a lower court's decision against an activist who was conducting what he called a "First Amendment audit" outside a Texas police station, noted that this right is not absolute and is not applicable everywhere.

The facts of the dispute are simple. Phillip Turner was 25 in September 2015 when he decided to go outside the Fort Worth police department to test officers' knowledge of the right to film the police. While filming, he was arrested for failing to identify himself to the police. Officers handcuffed and briefly held Turner before releasing him without charges. Turner sued, alleging violations of his Fourth Amendment right against unlawful arrest and detention and his First Amendment right of speech.

The 2-1 decision Thursday by Judge Jacques Wiener is among a slew of rulings on the topic, and it provides fresh legal backing for the so-called YouTube society where people are constantly using their mobile phones to film themselves and the police. The American Civil Liberties Union says, "there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places and harassing, detaining and arresting those who fail to comply."

A dissenting appellate judge on the case—Edith Brown Clement—wrote Turner was not unlawfully arrested and that the majority opinion from the Texas-based appeals court jumped the gun to declare a First Amendment right here because one "is not clearly established."

Previously, a federal judge had dismissed Turner's allegations, saying the officers involved held so-called "qualified immunity" because the right to film the police was not "clearly established" at the time of the incident. And on appeal, the appellate court upheld this lower court's position. However, the majority then went on to declare a prospective First Amendment right to film the police within the circuit's jurisdiction, which includes Louisiana, Mississippi, and Texas. That said, this newly announced right does not apply retroactively to Turner:

At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has "repeatedly" instructed courts "not to define clearly established law at a high level of generality."

The Supreme Court still has not ruled on the issue. The appeals court went on to note the varying rulings and silence in the lower courts on this hot-button First Amendment topic:

The circuit courts are not split, however, on whether the right exists. The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties. In American Civil Liberties Union v. Alvarez, the Seventh Circuit explained that the First Amendment protects the audio recording of the police and concluded that an Illinois wiretapping statute, which criminalized the audio recording of police officers, merited heightened First Amendment scrutiny because of its burdens on First Amendment rights. No circuit has held that the First Amendment protection does not extend to the video recording of police activity, although several circuit courts have explained that the law in their respective circuits is not clearly established while refraining from determining whether there is a First Amendment right to record the police.

Again, the appeals court ruled that the police were ultimately immune to Turner's First Amendment challenge since the right was not "clearly established" at the time of the incident. The court noted that, starting now, "we conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions."

Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.

Regarding the Fourth Amendment argument, the court set aside Turner's unlawful detention claim because police held an objectively reasonable position "that Turner was casing the station for an attack, stalking an officer, or otherwise preparing for criminal activity, and thus could have found Turner’s filming of the 'routine activities' of the station sufficiently suspicious to warrant questioning and a brief detention."

So for now, the unlawful arrest claim survived, meaning the cops can be sued on Fourth Amendment grounds. "The officers’ handcuffing Turner and placing him in the patrol car, as alleged in the amended complaint, were not reasonable under the circumstances," the court concluded.

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