flickr / H.L.I.T.

On May 8, Maria Melendez

, Melendez's daughter, Melissa Quair, and Quair's boyfriend reportedly witnessed about a half-dozen Kern County, Calif., highway patrol officers beating and kicking 33-year old David Silva in front of Kern Medical Center. Silva, the father of four young children, died early on the morning of May 8, presumably from the injuries he sustained from the incident.

Melendez recorded the entire episode on her phone, as did her daughter's boyfriend. But before she could send the videos to news media outlets, she later told reporters, detectives from the Kern County Sheriff's Office, acting without a warrant, confiscated their cellphones. According to Quair, detectives arrived at her house at 3:00 am and demanded that Quair and her boyfriend turn over their cellphones. Quair's boyfriend reportedly turned over his phone to authorities without asking them to produce a search warrant because "he had to be at work at 8 am and didn't want to be late," according to the Bakersfield Calfornian. Melendez said sheriff's detectives confiscated her phone later that same day.

While some facts surrounding the case remain unknown, it appears that the witnesses who recorded the Silva incident acted lawfully, and—absent a valid warrant—the law enforcement officials had no right to seize their property. And on May 14, the FBI launched an investigation amid questions over whether officials tampered with the cellphone videos confiscated from the witnesses.

Despite the prevailing trend in this country in favor of a right to record law enforcement officials, the Silva incident reminds us that such a right is not a foregone conclusion and remains subject to abuse. This is worrisome because the right to record police activity is a valuable way to keep law enforcement accountable—knowing one's actions might be captured on camera provides a powerful incentive for officials to avoid acting beyond their authority. It helps ensure the survival of other rights by promoting transparency. However, this all depends upon citizens and journalists being allowed to take pictures video without the burden of undue governmental regulation.

In recent years, at least two federal courts of appeals have explicitly recognized the right to record the actions of on-duty police officers. In 2011's Glik v. John Cunniffe, the First Circuit ruled that a man wrongly arrested for recording police officers could sue the arresting officers for violating his First Amendment rights. The Court found a broad First Amendment right to record on-duty government officials in public, stating, "[G]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of government affairs.'"

Glik is undoubtedly a victory, but a recent incident in California suggests that where rubber hits the road, the right to record police activity is, at best, being ignored and, at worst, explicitly rejected.

When police officers unlawfully prohibit an individual from taking video footage (or seize his or her camera after the fact), the incident contributes to a chilling effect on photography. An individual who fears that recording police activity may result in criminal charges or his or her property being seized may decide that it is not worth the risk. Equally troubling is that very few legal remedies exist for those whose rights have been violated, and it is very difficult for the average citizen to get redress in court. Qualified immunity often shields public officials from liability. Furthermore, the damage suffered as a result of having one's camera seized or photographs deleted is difficult to quantify.

University of Tennessee law professor and PopMech contributor Glenn Reynolds (whom I studied under) previously noted that the right to take photographs and video footage in public places is "one of the comparatively few issues that could merit a new federal rights law. Under the 14th Amendment to the U.S. Constitution, Congress is empowered to pass laws protecting civil rights against infringement by state and local officials, and that seems to be what's happening here . . . A clear federal law would limit cases . . . in which local officials use their power to harass those who might keep an eye on them." This issue could gain steam in the wake of the Silva tragedy and similar incidents. Such legislation may be necessary to prevent future violations and a chilling effect on the right to photograph and record the actions of law enforcement officials.

Morgan Leigh Manning is currently practicing law at Spotts Fain in Richmond, Va.

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