War on Cameras

Federal Judge to Camera-Shy Austin Cops: People Have a Right to Record You. Deal With It.

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Peaceful Streets Project

As my colleagues and I frequently note, Americans have a well-established constitutional right to record police officers as they publicly perform their duties. Yet cops across the country continue to harass and arrest people for exercising that right, using bogus charges such as wiretapping, resisting arrest, and interfering with police. Yesterday yet another federal judge issued a clear message to those cops: Cut it out.

The case was brought by Antonio Buehler, an Austin, Texas, activist who has had several run-ins with camera-shy cops. The first incident occurred on January 1, 2012, when Buehler pulled into a 7-11 in Austin to refuel his truck and observed a traffic stop during which police dragged a screaming passenger from a car and knocked her to the ground. After Buehler took out his phone and began taking pictures of the encounter from a distance, Officer Patrick Obosrki manhandled him and arrested him for "resisting arrest, search, or transportation."

Buehler filed a complaint about the incident with the Austin Police Department but never received a satisfactory response. The experience led him to start the Peaceful Streets Project, which aims to help "individuals understand their rights and hold law enforcement officials accountable." The organization routinely records police encounters "to prevent and document police brutality." That work led to two more arrests of Buehler, both for "interference with public duties," on August 26, 2012, and September 21, 2012. The third arrest again involved Oborski. On both occasions police took Buehler's camera and never returned it.

Peaceful Streets Project

In response to Buehler's federal lawsuit, Oborski and several other officers claimed they did not realize he had a right to record them. But according to U.S. Magistrate Judge Mark Lane, they really should have. In yesterday's decision, which allowed the lawsuit to proceed, Lane cites "a robust consensus of circuit courts of appeals"—including the 1st, 7th, 9th, 10th, and 11th—that "the First Amendment encompasses a right to record public officials as they perform their official duties." He also notes two decisions in which the U.S. Court of Appeals for the 5th Circuit, which includes Texas, "seems to assume, without explicitly stating, that photographing a police officer performing his official duties falls under the umbrella of protected expression."

This is not some newly discovered right that Oborski and his colleagues might have understandably overlooked. To the contrary, it rests on longstanding principles repeatedly recognized by the Supreme Court. "If a person has the right to assemble in a public place, receive information on a matter of public concern, and make a record of that information for the purpose of disseminating that information," Kane writes, "the ability to make photographic or video recording of that information is simply not a new right or a revolutionary expansion of a historical right. Instead, the photographic or video recording of public information is only a more modern and efficient method of exercising a clearly established right." He therefore concludes that Oborski et al. cannot claim qualified immunity by arguing that the right was not clearly established at the time of Buehler's arrests.

In addition to his First Amendment claims, Buehler accuses Oborski and the others of false arrest, and Kane allowed him to pursue those claims as well. The charge of resisting arrest—which in Buehler's case presumably referred to the arrest that he photographed in the first incident, as opposed to his own arrest for resisting arrest—involves "using force," and Buehler claims he never did that. "Accepting as true Buehler's factual allegations," Kane writes, "Oborski and [Officer Robert] Snider did not have probable cause to arrest Buehler on January 1, 2012 for Resisting Arrest, Search, or Transportation." A charge of interference with public duties is also inconsistent with the facts as described by Buehler, says Kane, since he claims he was merely observing and recording, which he had a right to do.

In addition to Oborski, Snider, and the other officers, Buehler is suing the city of Austin and the Austin Police Department, arguing that they had an obligation to make sure that the cops they employ understand their constitutional obligations. This sort of decision is important not only because it highlights a right that police are bound to respect but because it puts them on notice that they can be held personally liable for violating it.

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  1. The cop workaround to this will be to just start shooting people with cameras and claim they thought the photographer was pulling a weapon. #OfficerSafety

    1. already has started. I think I saw a 14 yr old with a PS3 controller in his hand got shot when answering the front door for a cop.

      There is no rational reason why cops don’t want cameras. It is invisible, occupies no space, no money, no energy- it’s a passive eye. It does not interfere with police operations. The ONLY reason cops don’t want them around is because they know that they have to treat citizens with a crumb of respect.

      And for most cops, that is something unbearable to think of.

      1. Well, no. The IS a rational reason; the cops have a rational fear that if their day to day behavior is recorded, they may be held to some kind of standards regarding interacting with the citizenry.

        It ain’t NICE, but is IS rational.

      2. There is no rational reason why GOOOD cops don’t wat cameras. BAD cops have a million reasons to not want anyone making an objective recording of their actions.

    2. The appropriate citizen response to this workaround will be to shoot gang members on sight.

      You can recognize gang members by their blue uniforms and badges.

  2. Addtionally, once the police confronted Mr. Buehler, he should have had an evidentiary right to record the interaction.

    1. That’s the real right to record police.

      Not the First Amendment, which doesn’t really address gathering information, just disseminating it. (Separate issue)

      The State absolutely cannot prevent you from gathering evidence that may be useful in your defense. Period. Full Stop.

      Now, I know journalists and writers hold the 1A above all others, and believe in its mystical powers to right all wrongs (against them). But there are other rights, you know, besides the right to run your yap or your keyboard without getting a beatdown.

      1. The State absolutely cannot prevent you from gathering evidence that may be useful in your defense. Period. Full Stop.

        What are you talking about? That’s their job.

      2. Journalists and writers who journal and write for the licensed, recognized Press you mean.

    2. You have the right to remain a photographer.
      Anything you see and record may be used against me in a court of law.
      Do you understand these rights?

  3. Wow, I get to be the first to make a Buehler joke!

    Well, Buehler, [spoiler alert] was it worth it?

    1. Buehler? Buehler? Buehler?

      1. He recorded the cops nine times. NINE TIMES.

  4. While this outcome is pleasing, how messed up is it that people still have to go through this after 6 or 7 circuit courts have ruled on related matters? Still, the fact that the false arrest claims can be heard is awesome.

    1. What would be more awesome would be the trial judge ruling that at least some of the award will come from the assets of the officers involved.

      Lose the house, car, boat, kid’s college funds, 401k, and take a 50% garnishment for the rest of your career. Do that to a bunch of cops and the rest will straighten up, at least temporarily.

  5. This sort of decision is important not only because it highlights a right that police are bound to respect but because it puts them on notice that they can be held personally liable for violating it.

    By ‘personally liable’ I assume you mean municipal/state settlement payout with no admission of wrongdoing by the officers involved.

    1. Unless they are charged with kidnapping, harassment and assault they’re not held personally liable for their actions. In fact you can add ‘aggravated’ to that list of charges considering that being armed with a firearm while doing these things would bring an extra decade or so of prison for a regular peasant.

      1. And federal charges, since it’s abuse of authority under color of law.

    2. Not this time, Hugh. These guys lost their qualified immunity.

    3. it is a start eventually municipalities will get tired of paying and stop the officers. And as such lawsuits become more common they will be easier to win, making them even more common.

      1. it is a start eventually municipalities will get tired of paying and stop the officers.

        HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

        Municipalities will do no such thing.

  6. This sort of decision is important not only because it highlights a right that police are bound to respect but because it puts them on notice that they can be held personally liable for violating it.

    Forgive me for not holding my breath that any significant number of cops will be held accountable for their crimes.

    1. However, the fantasy of these cop’s sons working as towel boys in a gay bathhouse and their wives and daughters turning tricks on 6th Street keeps me warm at night.

  7. Wait til his dad finds out what happened to the 61 Ferrari!

    1. That wasn’t even Buehler’d dad!

      1. Doh! Right you are. Cameron’s dad.

  8. Suing actual state agents for bad acts. Does that ever work?

    1. To get a cash payout bank rolled by police unions and tax-payers, very seldom yes. But regular ole criminal charges? Why that would be just crazy anarchist talk.

  9. Next step – confiscating cameras and devices for evidence, keeping them in the evidence locker, misplacing them or hiring Rosemary Woods to create a 3-minute gap in the record.

    1. That’s why your devices should automatically upload to the net. And should be password locked.

    2. Don’t forget “thrown in the recycler with the hard drives that had the only copy of the police dash cam video”.

  10. Did the policemen face any consequences for what they did? No? Well then they’re going to continue to arrest people for recording them. And nothing else will happen.

    1. The Austin PD could still face penalties and I believe the officers could as well. This ruling allows claims in the lawsuit to move forward.

      1. The most that will happen from the lawsuit is the taxpayers will be forced to pay for what the officers did. The officers themselves will face absolutely no consequences for their actions, and will continue to arrest people for recording them.

        1. I agree that taxpayer bloodletting is the likely outcome, but it might be possible for the officers to face consequences. I can dream, right?

          Maybe someone can chime in on whether these false arrest claims can lead to criminal prosecution?

          1. When was the last time a cop was criminally prosecuted for false arrest? I’m thinking never.

            1. I have no idea how common this is, but the googles tell me one happened recently in my area.

              http://www.ajc.com/news/news/d…..est/nd2xP/

          2. Taxpayers should pay. For the most part (really, most of them are guilty) the taxpayers let this type of rule upon them. The taxpayers need to feel the heat. It would also be nice if the cops involved at minimum lost their jobs and got a criminal record that hampered any future employment just like the non-violent offenders’ lives they so willingly ruin.

            1. I think there was an article about a guy from Austin who was simply shocked that his property taxes went up… he never assumed that voting “yes” to every hair-brained bond proposal would affect his wallet.

              In progs, we are not dealing with the brightest bulbs, eh?

        2. No, the judge has already stripped the officers of their personal immunity, if I read this correctly.
          They will be on the hook for any compensatory or punitive damages levied against themselves.

        3. Since they lose qualified immunity, I’m thinking that the officer himself become personally liable for any awards.

          One would fucking hope so anyways.

  11. As an Austinitte, and one who has also lived in San Francisco, Hawaii, and the Princeton, NJ areas, it has always stuck me how the more Liberal the community, the more anti-liberty and thuggish the cops are.

    1. Cops like to bash hippie heads. See Chicago, 1968.

  12. “This sort of decision is important not only because it highlights a right that police are bound to respect but because it puts them on notice that they can be held personally liable for violating it.”

    Unfortunately, nearly all police departments indemnify their officers for this, so the officers never pay out of pocket.

    1. Judges can prevent that with Court Orders.

  13. “Instead, the photographic or video recording of public information is only a more modern and efficient method of exercising a clearly established right.”

    Looks like the same reasoning the Supremes used to update the archaic term ‘papers’ to include electronic records stored in a smartphone.

    Could we be turning a legal corner here?

    1. Love…er hate your handle.

      1. A real hatey kinda love.

  14. You have no expectation of privacy when you’re bashing heads on a public street.

  15. In response to Buehler’s federal lawsuit, Oborski and several other officers claimed they did not realize he had a right to record them.

    Ignorance of the law is no excuse, bub.

  16. I’m hoping against hope that Oborski, especially, is held criminally liable. He instigated Buehler’s initial arrest by physically charging him and slamming him against a vehicle, later lying through his teeth that Buehler spit on him during the encounter.

    He’s a professional thug and a lying shitbag.

  17. PSP is a good project, great for a notoriously corrupt Austin PD. This city is a prog magnet, and people don’t even think twice about why the cops are doing what they are doing.

    Austin will be better off if we hold Acevedo and Co. accountable. I’m pretty clean cut and straightlaced but even I have been on the weird end of APD.

    Thank God this is still Texas, however. My CHL is my first defense, not the APD.

  18. OT: When are we gonna set up an Austin Reasonoid Get-Together?

    1. That would be nice. I’ve thought about going to some other meet-ups, but a lot of Austin groups have some pretty wingbat members/ Alex Jones enthusiasts.

      1. no kidding. It took me longer than it should have to join team liberty, simply because all of my early encounters with “libertarians” were really with Alex Jones conspiracy nuts.

        1. Right? At the first mention of the New World Order or prepping for the impending geopolitical apocalypse I’m out. Not my crowd.

          1. yeah man alex jones types exist, but there are lots of good libertarians here. Y’all should come out to America’s Future Foundation events here in town- good times

            1. Thanks for the tip, entropy. Haven’t heard of them before. I’ll it that out.

              1. *check that out

  19. I am a privileged cisgendered white male and I’ve had my share of awful encounters with the APD. Hard to imagine a more contemptible gang of thugs than our police force.

    I’d be up for a reasonoid gathering. I hear that alcoholism and misanthropy work just as well in group settings.

  20. Naturally I hate Austin traffic and try not to go too far from my hermit cave. Since I live north side, I nominate Black Star Co-op as a potential conclave site. Counter proposals?

    1. You gonna be around for Labor Day? My better half and I will be in Austin that Sunday, Monday, and Tuesday.

      1. Sure I’ll be around then. Labor Day weekend sound good to the rest of you Austinites?

        1. Labor Day and Black Star Co-op works here. 4:00 PMish ok?

          1. Or during that weekend as well.

            1. I will be here, I believe. Black Star Co-Op? Sounds hipsterish……….

              1. Get a room.

    2. I might agitate for another date, sooner that that. But am liking the sound of it. I’m going to be voluntarily unemployed for a while, so am looking forward to doing more fun time wasty things.

      I might be mistaken for a tin foil hat kinda guy sometimes, but will promise to be on best behaviour.

    3. I actually propose a super ironic place like that Soviet-themed place on 6th.. Molotov

      1. Molotov has a reputation for being shitty even compared to the rest of 6th street…

        Black Star is more yuppie than hipster these days. Its a brewpub that makes some pretty damn good beer.

      2. I suppose technically we should go to The Liberty

        1. Hell yeah! The Liberty.

  21. Anytime Sunday or Monday would work for me. Brett you’re the out of town visitor, so presumably you’ve got tighter scheduling than we do so why don’t you pick the time?

    1. Well, this kind of fizzled out.

    2. We’re driving in from DFW Sunday after attending the FSU-OSU game so 4:00pm is the earliest we could reasonably make it on Sunday.

      1. And staying through Wednesday afternoon with no particular plans other than to stuff our faces and need cabs/rides after 10pm.

        1. I assume that no one is coming back to check this thread. But just in case…

          I’m planning on being at Black Star on labor day at 4pm. I’ll be the big bearded guy in a black t-shirt. Also my gf and a couple of other reason lurkers I know IRL will be there as well.

  22. You have the right to remain a photographer.
    Anything you see and record may be used against me in a court of law.
    Do you understand these rights?

  23. I’m sure they meticulously safeguarded the multiple cameras that they ‘impounded’ as evidence, and that they will be returned to him in the same condition they were in when taken into custody?

    Sue ’em till it hurts.

  24. There is CLEARLY an historically-recognized right in our Republic to record the police in the performance of their public duties, established for at least 244 years.

    It’s not even a “First Amendment” issue, it’s a “First Three Words of the Constitution” issue.

  25. Sarcasm Button On:
    Comrades! This is a horrible decision made by Judge Lane. Doesn’t he know we are about to embark on a wonderful socialist adventure? The populace has no right to record our kind and loving police officers who beat, shoot and arrest people who pay their salaries. If these officers are caught beating, killing, and engaging in other questionable activities, then the populace will not trust them. If there is no trusting the police, then it will be more difficult to take guns, freedom and money from the capitalist swine once our benevolent totalitarian socialist government takes over. We should give thanks to Dear Leader Obama has done a magnificent job of militarizing our police so we can become a socialist police state. Recording police actions also represents the out-dated bourgeois notion that the state should be held accountable for its actions. That is preposterous! How can any totalitarian state function properly if it is held accountable to the same people it represses? What would Stalin say? What would Hitler Say? What would Mao say? America would become the laughing stock to all the rest of the totalitarian states, and our shame would be great indeed. Therefore, I urge everyone out there to let the police beat, shoot and do whatever is necessary to destroy our freedom guaranteed under the Constitution so we can all get used to living our new found free socialist dictatorship. Good times are just around the corner.
    Sarcasm Button Off

  26. While the police are busy arresting people filming them, the real criminals are free to run roughshod over the community. I wonder if criminals have figured out that they can distract the police by sending a stooge to start filming the police.

  27. Perhaps the politically liberal people of Austin should consider contacting elected officials and begin demanding a different style of policing. Given that our one remaining freedom is the power to vote (more or less), maybe people should make the encroaching police state an issue that drives their electoral choices. Just a suggestion.

  28. Bill Oreilly, Megyn Kelly did a segment where they mocked people filming the police..

    1. Of all of the Authoritarian Conserva-douches, Bill O’Reilly is the douchiest of all.

  29. here’s a feasible way for libertarians to get cops on the hook for these arrests and remove the “I didn’t know it was legal” excuse.

    Start a non-profit ostensibly for the purpose of educating cops. Start holding seminars and stuff, and in the seminars, explain the current jurisprudence that says that videotaping cops is legal (and obviously hold seminars for other stuff to make it all seem normal). Get the cops to sign in when they come into the seminars in the first place.

    Keep the record of those names, and then whenever those cops claim they didn’t know, you can prove that they actually attended a seminar that went through all the multiple cases that held that people can record.

    1. But that would entail having to be in close contact with large numbers of cops.

      Fuck all that.

  30. Court awards will not deter this mindset. Somehow, someway public officials will find a way for someone else (read “taxpayers”) will pay.
    Here is how it gets stopped;
    Perp walk cops, bureaucrats, governors, senators, representatives and give ’em prison time.
    You lie, collude, obfuscate – No civil penalty that the taxpayers ultimately pick up, but a long stay, courtesy of the state, in County lockup or state prison with inmates he may have put there.
    When a cop knows that his behavior could lead to a stay at the crossbar inn suddenly a lot of this BS stops.

  31. I agree, you should be able to video police officers in the line of duty, but this ruling has absolutely nothing to do with the 1st amendment in the Federal Constitution and everything to do with Article 1; Section 8 of the Texas Constitution. The truth is hard to swallow, but this ruling is just another blow against state sovereignty and it reinforces the unconstitutional centralizing of all power in the National Government. Incorporation much?

  32. The problem is that when cops arrest someone they know has not committed a crime. They have the backing of the prosecutor, and the courts.
    I was cited for violating a animal control ordnance that did not apply to me, because I am a farmer. The deputy knew this, but charged me anyway. I told him at the time that the ordnance did not apply, but he cited me anyway.
    It took me ten trips into town, 26 miles round trip. I was convicted in district court, which has no jury, and no record of the proceedings in North Carolina, despite presenting evidence that exonerated me. After the district court judge Marty “Kangaroo” Magee http://www.nccourts.org/County/Cabarrus/MMcGee.asp announced his verdict convicting me, I asked for permission to speak. I told him that he was convicting me of violating a ordnance, that itself exempted me from compliance. His reply, “you can appeal”. I did, representing myself as before. When the case came up in superior court, where there would be a jury, and a record, the DA folded like a cheap tent, in a high wind.
    The case was dismissed, but I had to appear in various courts ten times. I represented myself, so I had no legal fees, but I did buy legal texts. I spent hundreds of hours studying the laws, and court procedure, and preparing my case.
    This was a huge burden on an innocent man, but absolutely nothing happened to the crook deputy that caused it all, and the crook judge that corrupted the system.

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