useful info

Deesnuts1965

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AELE Legal Publications Menu
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AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability
of Law Enforcement Agencies & Personnel


A county State’s Attorney notified a man that his recording of a meeting between him and the police chief violated a state statute, and that the violation was a felony. A federal appeals court ruled that the recording did not violate the state statute, so the threatened prosecution had no basis in the law. In this case, at no point did the chief, or any participant in the meeting, exhibit any expectation of privacy. Nor was there advance notice or published or displayed rules that established confidentiality and certainly none that prohibited note taking or recordings. Furthermore, the meeting fell within the "uttered at a public meeting" exception of the statute, and the circumstances did not justify an expectation of privacy. Because the court resolved the case under state law, it did not need to reach the constitutional issue of whether the recording was protected by the First Amendment. McDonough v. Fernandez-Rundle, #15-14642, 862 F.3d 1314 (11th Cir. 2017).
A woman who was part of a “police watchdog” organization went to an “anti-fracking” demonstration at a convention center, carrying both a camera and identification as a “legal observer.” She attempted to record police officers arresting one of the protesters. While she did not interfere with the arrest, an officer pinned her against a pillar and thus prevented her from observing or recording the arrest. A male university student, in a separate incident, was on a public sidewalk observing officers across the street engaged in breaking up a party. When he took a photo, an officer ordered him to leave. When he refused, he was arrested and his phone was confiscated and searched. He was given a citation for “Obstructing Highway and Other Public Passages.” The charge was later dropped. The two sued the city, claiming unlawful First Amendment retaliation. A federal appeals court found that the First Amendment protects the photographing or otherwise recording police carrying out their official duties in public. It noted that every federal appeals court circuit that had addressed the issue has reached the same conclusion, including the First, Fifth, Seventh, Ninth, and Eleventh Circuits. Fields v. City of Philadelphia, #16-1650, 2017 U.S. App. Lexis 12159 (3rd Cir.).
A man who was arrested while he was video recording a police station from a public sidewalk and refused to identify himself sued three officers and the city, claiming that the arrest violated his Fourth and First Amendment rights. He had been handcuffed and placed in the back of a patrol car, and released after a supervisor arrived. The individual defendants were entitled to qualified immunity as to plaintiff’s First Amendment claim because there was no clearly established right to record the police at the time of his activities. The appeals court ruled prospectively, however, that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions. The officers were also entitled to qualified immunity as to the plaintiff's Fourth Amendment unlawful detention claim, but his unlawful arrest claim survived because the officers’ actions were disproportionate to any potential threat that he posed or to their investigative needs. Turner v. Driver, #16-10312, 2017 U.S. App. Lexis 2769 (5th Cir.).
 

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There are case summaries and while helpful they are not the definitive in providing binding legal answers. Below are quotes from an article in NOLO.

Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) police officers in public while they are performing their duties.​
Over the years, people who have sued the police for retaliation for recording have gotten mixed results. Such cases often come down to whether the right to record the police is “clearly established,” and not all courts agree on the answer.​
As with most constitutional rights, the right to record officers has limits. There are limits having to do with the time, manner, and place of recording. And complicating matters is the fact that the exceptions differ depending on where you are.​

In summary, if you intend to record LEO or public officials do your own research specific to where you live and what your intentions are and as always consult a local attorney if you have questions.
 

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