Supreme Court Weakens First Amendment Right to Film Police in Public

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This article was originally published by John W. Whitehead at The Rutherford Institute. It has been republished with permission from the author. Please contact the author directly for republishing information. 

WASHINGTON, DC — The U.S. Supreme Court has dealt a blow to police accountability and the First Amendment right of eyewitnesses to film and photograph police activity in public without fear of retaliation. In refusing to hear an appeal in Crocker v. Beatty, the Supreme Court has let stand a lower court ruling which granted qualified immunity to a police officer who confiscated a bystander’s cell phone, arrested him for resisting an officer, then allegedly punished him for trying to film police activity by locking him in a police car with the air conditioning turned off on a hot Florida afternoon. The Rutherford Institute had filed an amicus brief in support of Crocker, rebutting the Eleventh Circuit’s ruling that eyewitnesses to a highway accident don’t have a clearly established First Amendment right to film police activity.

“The First Amendment should protect the right of citizens to make audio or video recordings of police carrying out their duties in public,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The ability to record police interactions in public provides for greater accountability when it comes to police interactions with the citizenry and should be preserved as a necessary right of the people.”

In May 2012, businessman James Crocker witnessed an accident while driving on I-95 in Florida. Crocker pulled off the road and ran to help with an individual who was trapped inside a car which had lost control and flipped over in the median. Once police and emergency personnel arrived, Crocker and other bystanders moved away from the accident. From a distance, Crocker used his cell phone to film and photograph police activity at the scene of the accident. Even though police reportedly acknowledged that it was not illegal for Crocker to take the photographs, a deputy sheriff seized Crocker’s phone and directed him to leave, refusing to return his phone even after Crocker offered to delete the pictures. Because Crocker would not leave without his phone, the deputy arrested Crocker for “resisting an officer” and left him handcuffed in a locked patrol car for about thirty minutes in 84-degree heat with little to no air conditioning while the doors and windows remained closed. When Crocker explained that he was having difficulty breathing and asked for air, the deputy replied that “it’s not meant to be comfortable.” Crocker’s phone was eventually returned and the charges dropped after he was taken to a local jail. Crocker filed a federal lawsuit against the deputy and sheriff. Although the trial court acknowledged that Crocker’s phone was seized in violation of the Fourth Amendment, the trial court ruled that the deputy was protected by qualified immunity from Crocker’s First Amendment and excessive-force claims. The 11th Circuit affirmed the lower court’s ruling, but a dissenting judge warned that individual police officers should not have discretion to arbitrarily determine time and place restrictions on speech or the recording of law-enforcement activities, and noted that the “right to record police activity is important not only as a form of expression, but also as a practical check on police power.” Civil liberties advocates have expressed concern that the U.S. Supreme Court, by refusing to hear an appeal of the lower court’s ruling, may contribute to a climate in which police are emboldened by the overly broad protections of qualified immunity to violate First Amendment rights in order to sidestep public accountability.

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