Press Play: the First Amendment and Due Process Right to Record the Police

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BY: Kimberly Arch, Guest Contributor

Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his Law and Public Policy seminar the opportunity to have their research papers published with the CLO.  The following article is one of many guest contributions from Campbell Law students to be published over the summer.

By now, many people have seen the video that shows a South Carolina police officer shooting an unarmed male eight times as he runs away.  Officer Michael Slager initially stopped the victim, Walter Scott, for a broken taillight. During the stop, Scott leaves his car and runs away.  A foot chase ensues, ending in a tree-lined lot behind a nearby pawnshop.  The video shows Slager firing his weapon approximately eight times into the back of Scott until he falls to the ground.  As Slager approaches Scott, he drops a dark colored object near his body.  Other officers arrive on the scene and begin to render medical aid.

Feidin Santana, a passerby who was walking to work when the shooting began, recorded the entire incident using only his cell phone.  Santana began recording when he noticed the scuffle between Scott and Slager.  While Santana was filming, another officer told him to turn his phone off.  He ignored the officer’s instructions and continued to record.  That video has now become an important part of an ongoing investigation.  On April 7th, 2015, Officer Slager was charged with first-degree murder.

This case illustrates how people are using their phones, and other personal recording devices, to record the police on a daily basis.  A person may wish to record the police for many reasons.  One reason is to report police misconduct and document an abuse of power.  Such recordings hold police accountable and assist in protecting individual civil rights.  Another reason may be to preserve potentially exculpatory evidence.  For example, in 2006, a man arrested on suspicion of murder privately recorded his interrogation at the police station.  The recording reveals that the detective never read him his rights.  This evidence was used as part of the defense at trial when the officer denied ever interrogating the defendant.  As a result, the defendant received a more favorable plea agreement than he would have received without evidence of his interview with the interrogating officer.

Regardless of the motive behind the recording, courts are increasingly left to determine whether such recordings are constitutionally protected.  This article first discusses two emerging constitutional sources of protection for the right to record the police.  Lower courts have recognized that these recordings are protected speech under the First Amendment in certain circumstances.  However, while not yet recognized by the courts, the Due Process Clause of the Fourteenth Amendment has the potential to be expanded to provide additional protection.  Next, this article discusses some of the countervailing policy interests that courts are being asked to consider.  This article concludes with a discussion of whether the courts should be left to grapple with this public policy issue or if it is best addressed by the local and federal government.

The First Amendment Right to Record

One of the most recent court opinions to apply the protections of the First Amendment to the recording of police officers came from the First Circuit in Glik v. Cunniffe.  In Glik, the defendant was arrested after he began using his cell phone to record the police arresting another man.  Glik was walking home one evening when he saw three officers conducting an arrest.  After hearing a bystander shout that they were hurting the man, he stopped walking and began filming.  Glik told the officers that he had recorded the arrest.  Glik was then arrested for violating the Massachusetts wiretap statute. ¹ This statute made it a crime to record the police without their consent.  During booking, Glik’s cell phone and flash drive were seized and held as evidence.

The First Circuit held that Glik had a well-established First Amendment right to videotape the police officers carrying out their duties in a public space.  The court stated that the First Amendment “extends further than the text’s proscription on laws ‘abridging the freedom of speech, or of the press,’ and encompasses a range of conduct related to the gathering and dissemination of information.”  Such conduct includes filming police in the execution of their duties.  In a public setting, citizens may record the police to “aid in the uncovering of abuses.”  Because the police are government officials whose misconduct touches on matters of public concern, recording them for that purpose is protected under the First Amendment.²

The First Amendment right to record also applies to arrestees.  In Gericke v. Begin, the First Circuit addressed whether the right to record the police applies during a traffic stop.  In this case, the recorder attempted to film an officer as he conducted a traffic stop of another driver who was arrested.  She was later charged with unlawfully intercepting oral communication in violation of the State’s wiretapping statute.  In dismissing the charges, the district court held that in light of the court’s decision in Glik, “‘a reasonable officer should have known that a blanket prohibition on the recording of all traffic stops, no matter the circumstances, was not constitutionally permissible.’”  A traffic stop does not place filming outside of the constitutionally protected right to film the police.

The Due Process Right to Record

 Another constitutional source of protection for the right to record police, while not yet recognized by the courts, may be found in the Due Process Clause of the Fourteenth Amendment. ³   Substantive Due Process “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” ⁴  It “prevents the government from engaging in conduct that ‘shocks the conscience,’⁵  or interferes with rights ‘implicit in the concept of ordered liberty.’” ⁶

The Due Process right to record the police may be implied by two of the leading Supreme Court decisions on discovery practices in criminal trials: Brady and Youngblood.  In Brady v. Maryland, the Supreme Court held that prosecutors have a duty to turn over exculpatory evidence to defendants when they are aware that it exists.  The Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  The reason behind this rule is that “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”

In Arizona v. Youngblood, the Supreme Court held that the government does not need to preserve all potentially exculpatory evidence.  The Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”  Youngblood places an important limitation on Brady.  Essentially, it lessens the government’s duty and burden to preserve evidence.  The government only has a duty to turn over evidence that they know to be exculpatory.

The purpose of Brady was to ensure that criminal trials are fair.  The effect of Brady was to equalize the playing field between the defense and prosecution by lessening the disparity in access to evidence. ⁷  A recording of a personal interaction with the police may be material to guilt or innocence.  It follows that an individual has a right to record these interactions.  Recognizing this right levels the playing field by allowing the defense access to potentially exculpatory evidence.

The rationale behind the decision in Youngblood stems from the Supreme Court’s “unwillingness to read the ‘fundamental fairness’ requirement of the Due Process Clause . . . as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.”  An individual should have the right to record precisely because the government has no duty to preserve all evidence.  What is “potentially useful evidence” is subjective and depends on who is examining it.  Where the government may not find an item of evidence potentially useful or relevant, the defense may strongly desire access to it.  Regardless, giving the individual the right to record their interactions with police allows them the ability to determine what evidence is potentially useful.

Countervailing Public Policy Interests

In 2010, the American Civil Liberties Union of Illinois filed suit requesting an injunction that would prohibit the enforcement of an eavesdropping statute to the recording of police officers in public. This law made it a crime to use an electronic device to record any conversation without the consent of any party where there exists an expectation of privacy.  The district court denied the injunction.  On appeal, the Seventh Circuit Court of Appeals granted the injunction on First Amendment grounds, holding that the statute restricted more speech than necessary.

In defense of the statute, the State’s Attorney argued that prohibition on recording the police protected important privacy and safety interests.  Specifically, they argued that the law is necessary to “encourage that civilians candidly speak with law enforcement, including those conversations conditioned on confidentiality . . . limit opportunities of the general public from gaining access to matters of national and local security . . . and reduce the likelihood of provoking persons during officers’ mercurial encounters.”  The court disagreed, stating that the “police officers performing their duties in public places and speaking at a volume audible to bystanders” lack any reasonable expectation of privacy.  Any citizen who wishes to speak privately with law enforcement can do so.  Further, it is unlikely that police-civilian discussions on issues of national security occur in public places.

As the dissent illustrates, the courts are being asked to consider more than the constitutional issues.  Judge Posner, dissenting, highlighted the safety concerns that are implicated when the police are being recorded.  Such recording “is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty.”  He argued that an officer “may freeze if he sees a journalist recording a conversation between the officer and a crime suspect, crime victim, or dissatisfied member of the public.”  That officer may be distracted during a tense encounter if they see a recording device and thereby “endanger public safety and [undermine] effective law enforcement.”

In addition, weighing against the individuals interest in recording the police is the potential danger that such recordings may present to law enforcement officers.  Jim Pasco, Executive Director of the Fraternal Order of Police (FOP), told National Public Radio that officers often need to move quickly without thinking about what the consequences might be.  He stated that “anything that’s going to have a chilling effect on an officer moving, an apprehension that he’s being videotaped and may be made to look bad, could cost him or some citizen their life, or some serious bodily harm.” These concerns apply to any recording of the police, regardless of the forum.  Even in a private setting, an officer may feel threatened when an individual opens their phone and beings filming.  Any hesitation may place the officer’s safety at risk in a potentially dangerous situation.

The Court’s Ability to Resolve This Issue

As recordings of police officers become more prevalent, state legislatures are responding with laws to protect the recorder.  In the aftermath of the Walter Scott shooting, Senator Gerald Malloy filed a bill in South Carolina that would allow people to record the police by protecting them from obstruction of justice charges or arrest.  The new bill was just filed on April 14th, 2014, and certainly has a long way to go before it becomes law.  However, as Senator Malloy stated, it is improper for police to tell a person to stop recording or face arrest.  This bill would make that clear to officers and people who want to record.

Ultimately, the courts are addressing these issues and will likely continue to do so.  However, they may be ill equipped to handle the problem.  For one, judges are increasingly reluctant to tackle public policy issues related to rapidly changing technology.  As Justice Alito commented during the Riley v. California oral arguments in 2014, “[y]ou have a rule of law that was established in the predigital era and now you have to apply it in the digital era or you’re asked to apply it in the digital era where the technology changes a lot of things.”  Understandably, this makes many judges nervous.  In the constantly changing digital world, the courts may not be equipped to apply precedent to technology that is unstable.

Further, the courts may not be the place for an emerging hot topic where judges may struggle with setting aside their personal beliefs and opinions.  For example, the attitudinal model of analyzing judge’s decisions suggests that judges “do not make their decisions based upon reasoned judgment from precedent or statute and consideration of their role in the legal system.  Rather, . . . a judge’s decision depends primarily upon her individual political ideology and the identities of the parties.” When faced with an emotional public policy issue, it may naturally be more difficult for judges to apply the prevailing legislative policy rather than their own ideology.

Certainly, the right to record the police is an important one.  Perhaps, while there is strong First Amendment protection and potential Due Process protection for this right, state and federal legislatures may be better equipped to consider the competing public policy interests in these cases.  They may have access to more research and, as a governing body, be more detached from the immediate parties involved.  Further, as the recent bill introduced in South Carolina shows, people expect their local government to respond swiftly in the face of injustice, instead of waiting for a lengthy court battle.  While it is overall beneficial that the courts are recognizing this right, it may be time for some new legislation to address this complicated issue.

Kimberly Arch is a 2015 graduate of Campbell Law School. She can be reached by email at k_********@em***.edu“>k_********@em***.edu.