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Police Warned Not To Retaliate Against Citizens Who Exercise Their Constitutional Right To Record Police In Public

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Published on: February 18, 2023

SAN FRANCISCO, Calif. — Pointing out that a significant number of police officers across the country fail to understand or recognize the First Amendment rights of citizens, The Rutherford Institute has issued a warning to police not to retaliate against citizens who exercise their constitutional right to peacefully observe and record police officers in the performance of their duties in public.

The Institute’s letter to the San Francisco Police Commission comes in response to its proposed policy regarding the rights of onlookers to record police activities.

“Citizens who exercise their First Amendment right to film police in public serve as watchdog reminders to police that as public servants, they are accountable to ‘we the people.’ Moreover, Americans should be able to record their interactions with police without fear of arrest, assault or being subjected to harassment or intimidation tactics.” 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.”

Most incidents of police brutality that attain national attention are brought to light by videos filmed on smart phones. Consequently, as more attention has been paid to the prevalence of police brutality, more Americans have begun filming the police in their daily interactions. Unfortunately, in those instances when police are averse to the notion of being recorded, it can result in retaliation, brutality and even false charges for those daring to exercise their First Amendment rights in such a way. For example, police in New Hampshire seized a woman’s camera and charged her with criminal offenses for disobeying a police officer, obstructing a government official, and unlawful interception of oral communications in retaliation for simply videotaping a police officer at a traffic stop from at least thirty feet away in a parking lot. A police officer in Colorado stood in front of a YouTube journalist to intentionally block his camera view of a DUI traffic stop, shined a flashlight into his camera, drove his police cruiser at the journalist, and repeatedly blasted his air horn.  In both instances, the courts found that the filming of police was clearly established First Amendment activity and that the police were therefore not protected from liability under qualified immunity.

Although the U.S. Supreme Court has not yet specifically ruled on a case involving the rights of individuals to record police activities, a growing number of federal appeals courts have upheld the right to record police since 2011. In Irizarry v. Yehia, although the Tenth Circuit Court of Appeals acknowledged that it had not yet specifically recognized a First Amendment right to film the police, it found that the right was nonetheless clearly established “beyond debate” by every circuit which had considered the issue—pointing out and summarizing cases from the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuit Courts of Appeal. While the right to film the police is protected by the First Amendment, the courts have noted that the right is not unqualified and may be limited by “time, place, and manner restrictions.” These restrictions, however, must be “narrowly tailored to serve a significant government interest.” In other words, citizens’ efforts to record the police must not interfere with police in carrying out their duties. However, police who retaliate against individuals for lawfully recording them can also be charged with violating the First Amendment.

Article posted with permission from John Whitehead

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