SAN BERNARDINO – Soon after a federal judge in Pennsylvania ruled that the First Amendment doesn’t cover recording police on video, an officer in California cited the case in a warning to a citizen capturing his actions on a cellphone camera.
There is “federal case law, as of this week, so you may want to reconsider your actions,” the San Bernardino County Sheriff’s Deputy can be heard saying in the video.
His warning, though true in its assessment of that particular federal case, neglects numerous other federal rulings that determined recording police action in public is protected speech and press.
That didn’t surprise Carlos Miller, a Miami-based multimedia journalist who runs a website encouraging citizen journalists to observe and record police actions.
“Cops pretend they have no idea about the laws but they keep up with the laws,” Miller, who wrote about the video on his website, Photography Is Not a Crime, told the Northern California Record. “I was not surprised because cops ... are accustomed to basically just barking out orders and they’re accustomed to people just abiding by those orders.
“The only reason that most people in this country are aware that police abuse is an issue is because of cameras.”
It’s not unusual for police to arrest people for recording them on the street. But lawsuits in different federal courts have taught law enforcement that the recordings aren’t illegal, but police look for other charges, such as interference or trespassing, to stick on the person, Miller said.
While the officer’s use of the ruling wasn’t shocking, the judge’s decision was, he said.
In February, Judge Mark A. Kearney of the U.S. District Court for the Eastern District of Pennsylvania dismissed claims against the city of Philadelphia by residents who argued they had a right to photograph police actions under the First Amendment. Kearney determined citizens don’t have that right unless they explicitly state that they’re doing it in protest of police action.
One of the plaintiffs, Amanda Geraci, sued the city of Philadelphia after she allegedly restrained by an officer to stop her from recording the arrest of a protester during an anti-fracking demonstration.
The second plaintiff, Rick Fields alleges he was arrested in retaliation for recording on-duty officers.
The American Civil Liberties Union of Pennsylvania is appealing the First Amendment ruling to the 3rd Circuit Court of Appeals. They are two instances of a series of suits with the purpose of stopping police from arresting people for recording them.
Kearney’s decision represents a departure from other courts. According to the Digital Media Law Project, four circuit courts of appeal have ruled that the First Amendment includes the right to record the police and other public officials as they perform their duties in public places.
The 9th Circuit Court, whose jurisdiction includes California, has affirmed this in two cases. In Jerry Edmon Fordyce v. city of Seattle in 1994, a man sued the city of Seattle and several Seattle police officers for interfering with his First Amendment rights to gather news. The man was recording a protest for a local TV production, which included video recording police officers at the scene. A police officer “attempted physically to dissuade Fordyce from his mission,” according to court documents. Fordyce was later arrested when he tried to record bystanders without their permission.
In 2013, the court cited Fordyce when it allowed James Adkins to continue with his claim that police officers in Guam violated his First Amendment rights when they arrested him for taking photos at the site of a car accident.
“Adkins' First Amendment rights were clearly established at the time of his arrest,” according to court documents.
Police need to get used to their public actions being recorded, Miller said. He started blogging about recording police in 2007 to document his own trial after he was arrested for photographing police. It coincided with technological advances, like the iPhone, which contributed to a lot more people recording police. He became a resource for citizen journalists who needed to know their rights and ethical responsibilities.
“Anything cops do in public while they’re in uniform is newsworthy because they’re public officials,” Miller said. “Freedom of the press applies to everybody.”
He added that police misconduct has been a reality in many communities for a long time but national attention has increased following Occupy Wall Street and the Black Lives Matter movement.
“The camera is your only protection against police,” he said.