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by Darren Chaker

Right to Video-Photograph Police First Amendment

Right to Video-Photograph Police First Amendment

May 12, 2019

Beverly Hills based First Amendment advocate Darren Chaker notes that it is clearly established law that officers may be filmed while carrying out their official duties. See Fordyce v. City of Seattle, 55 F.3d at 439; see also Adkins v. Limtiaco, 537 Fed. Appx. 721, 722 (9th Cir. 2013). However, it appears common place for people to be harassed or even arrested for merely doing what the First Amendment protects.

Darren Chaker has seen several online videos where the person filming the police offer to show a press pass. There is no reason to allege you have a press pass, but merely state your unfettered right to film police. Identification need not be provided to police since there is no probable cause to believe you are committing a crime. In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), the Court held that a state statute can require a suspect to disclose his or her name in the course of a brief stop, if the detention was based on reasonable suspicion of a crime. Thus, the crime cannot be a failure to identify yourself, but there must an independent crime to be arrested for prior to police demanding identification. This is why it is critically important to not interfere with police or provide an independent basis to get arrested for.

A great LA Times article was written concerning when a person must provide identification. The article states in relevant part, “Do you have to show an ID whenever an official asks for one? No. In California, police cannot arrest someone merely for refusing to provide ID.

In California, as with many other states, the law explicitly states police cannot arrest people who are merely videotaping police. See California Penal Code § 69(b),

“The fact that a person takes a photograph or makes an audio or video recording of an executive officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a).” (emphasis added)

Additionally, California Penal Code § 148(g) reads:

“The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.”
(emphasis added)

In another case, Gericke v. Begin (1st Cir. 2014) 753 F.3d 1, 7, the court explained the right to film police is clearly within the scope of the First Amendment:

“Protecting that right of information gathering “not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.” Id. at 82-83 (citations omitted). Those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is “police carrying out their duties in public.” Id. at 82. A traffic stop, no matter the additional circumstances, is inescapably a police duty carried out in public. Hence, a traffic stop does not extinguish an individual’s right to film.” (emphasis added)

Other courts have also repeatedly established a person who is merely filming police may not be detained or arrested. See, e.g., McComas, 2017 U.S. Dist. LEXIS 50783, 2017 WL 1209934, at *7 (“A reasonable officer in [defendant’s] position would have known that it is a violation of a constitutional right to harass an individual who is peacefully filming the officer.”); Barich v. City of Cotati, No. 15-CV-00350-VC, 2015 U.S. Dist. LEXIS 142672, 2015 WL 6157488, at *1 (N.D. Cal. Oct. 20, 2015) (“Thus, ‘under the law of this circuit there is and was’ at the time of conduct ‘a clearly established right to record police officers carrying out their official duties.'”) (emphasis added)

Thus, no matter how much intimidation police may interject into a situation – that person has no obligation to identify him/herself or cease filming. The ugly reality is after watching dozens of videos online, is that citizens are pressured to produce identification, often stop filming, are detained, arrested, and even roughed up. It is important if such occurs to the photographer to contact a civil rights attorney without delay since numerous lawsuits have been resolved in favor of the photographer due to the fact it is not against the law to photograph police. See ACLU Article on topic.

The First Amendment was here first and Darren Chaker encourages people to stand on that foundation. Darren Chaker explains a few a few tactful ways you may want to enforce your First Amendment rights:Overwatch: If you, the person filming, believe police will surround, harass, or otherwise intimidate you, have a third-party conduct overwatch. Overwatch is simply having an observer film you from a distance. Overwatch is important since police can take your phone/camera, and write anything they want in their report to justify the action taken. For example, “Subject became hostile, hit me, and I subdued (beat) him/her to effectuate an arrest.” The key to combat this is to (1) do not alert police to the overwatch; allow the officer to testify under oath about what he alleged happened; and (3) then forward a copy of the video showing the officer’s report and testimony are clearly contradicted by video. To add icing to the perjury cake, email the Public Defender who often represent 80-90% of defendants so when/if that officer comes into court, he/she will be impeached with prior false testimony. You have effectively ended that officer’s career since if he/she is not charged with perjury, that officer will always be haunted by the contradicted testimony in any court the officer appears in. The San Diego Public Defender has a database of police officers with past issues of perjury and abuse. See article. Another good option is to film police where you are standing in view of security cameras, such as in the parking lot of a bank, gas station, etc. If something adverse happens, you or your attorney can subpoena the security camera footage to contradict any allegation you were hostile, threatening, attacked an officer, etc. Keep in mind, it is common for security cameras to not work, and that businesses like banks and gas stations often rely on police for help, so do not rule out the video is deleted as a favor to police.

  • Overwatch: If you, the person filming, believe police will surround, harass, or otherwise intimidate you, have a third-party conduct overwatch. Overwatch is simply having an observer film you from a distance. Overwatch is important since police can take your phone/camera, and write anything they want in their report to justify the action taken. For example, “Subject became hostile, hit me, and I subdued (beat) him/her to effectuate an arrest.” The key to combat this is to (1) do not alert police to the overwatch; allow the officer to testify under oath about what he alleged happened; and (3) then forward a copy of the video showing the officer’s report and testimony are clearly contradicted by video. To add icing to the perjury cake, email the Public Defender who often represent 80-90% of defendants so when/if that officer comes into court, he/she will be impeached with prior false testimony. You have effectively ended that officer’s career since if he/she is not charged with perjury, that officer will always be haunted by the contradicted testimony in any court the officer appears in. The San Diego Public Defender has a database of police officers with past issues of perjury and abuse. See article. Another good option is to film police where you are standing in view of security cameras, such as in the parking lot of a bank, gas station, etc. If something adverse happens, you or your attorney can subpoena the security camera footage to contradict any allegation you were hostile, threatening, attacked an officer, etc. Keep in mind, it is common for security cameras to not work, and that businesses like banks and gas stations often rely on police for help, so do not rule out the video is deleted as a favor to police.
  • Secure Video: Alternatively, when you video police, use the ACLU Mobile Justice App. that uploads your video to the ACLU server, thus prevents the video from being destroyed. Another option is to LiveStream your video on FaceBook or YouTube where it is retained. Be sure to not record video on an external SD card since the card can be simply removed.
  • Secure Phone: Be sure to your phone is encrypted and you have a complex password to access it. Often times, you can lock your phone but still continue recording. The United States Supreme Court issued its ruling in Carpenter v. United States, 585 U.S. ____, No. 16-402 (June 22, 2018) requires police to get a warrant to access your phone. If the officer says, “I will get a warrant” encourage him/her to do so! Ultimately, if you are conducting yourself lawfully, filming the police is not against the law and a search warrant cannot be issued for such conduct. Literally, a search warrant cannot be issued to merely get into your phone since it is not on the limited roster of crimes a search warrant may be issued for. See the Los Angeles County District Attorney’s memo on this. Thus, do not fall for the “I will get a warrant” bluff that is aimed at inducing consent.
  • Do Not Consent: Do not consent to allowing police to search your phone. Once you consent, anything on your phone can be used against you. Schneckloth v. Bustamonte,412 U.S. 218, 219 (1973); United States v. Lopez-Cruz, 730 F.3d 803, 809 (9th Cir. 2013); United States v. Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008). As a leading civil rights organization , Electronic Frontier Foundation , puts it – tell police: “I do not want to talk to you. I do not consent to a search. I want to speak to my attorney.” Understand the seasoned officer may craft his request in an artful way to gain consent, such as: I just want to make sure you are not videotaping our undercover cars or officers since that can jeopardize lives. You give police your phone and your videos are deleted. Don’t fall for a ruse. Stand your ground and invoke your rights.
  • Do Not Interfere: Absolutely, do not interfere with the police carrying out his/her duties. Do not speak to the suspect, do not speak to police, or get in the way. Be a silent observer from a safe distance. With today’s technology one need not be in the officer’s face with a camera, but can be across the street and zoom in on where police are. You do not want to give police a reason to say you were interfering with his/her duties and arrest you on that basis.   

“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987). However, Darren Chaker does not endorse or encourage anyone to berate or harass the police. Do not bait police to make you a target. Police do a very tough job. Police should be watched especially in this day and age of police abuse becoming increasing more publicized due to people filming the police. Most police are good people with good intentions, but some are not. However, regardless of what type of police officer you come across, you have the First Amendment right to get your phone out and video how they interact with the public. Videotaping police deters police abuse and often helps police combat false allegations of police abuse where bodycam footage contradicts citizen complaint allegations.

Of course, do not rely on the above for legal advice and only rely on the advice of your own attorney.