Police Abuse

The Shooting of Walter Scott and the Right to Record Cops

Feidin Santana was exercising a constitutional right that police often violate.

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NCPD

Feidin Santana, the bystander who witnessed the police shooting of Walter Scott in North Charleston, South Carolina, on Saturday, showed real courage in using his cellphone to record the event, even before it became clear that he was watching what local authorities describe as a murder. Although the First Amendment right to record the police as they perform their duties in public is well established, that does not necessarily mean cops will respect it, as The New York Times notes:

Cellphone videos taken by bystanders tend to make many police officers uncomfortable, because they have no control over the setting and often are not even aware they are being filmed until later. Though the courts have held that people have a constitutional right to record the police, those who do are frequently challenged by officers. 

The Times cites a case described in the Justice Department's recent report on police practices in Ferguson, Missouri: "a traffic stop in which a Ferguson officer told the driver's 16-year-old son not to videotape him." The officer ultimately "wrestled the phone away from the teenager, and everyone in the car was arrested 'under disputed circumstances that could have been clarified by a video recording.'" Such incidents are familiar to Reason readers, and they often end with trumped-up charges such as interfering with police, disorderly conduct, or (my favorite) resisting arrest.

Because so many cops still don't get it (or get it but don't care), it is worth emphasizing at every opportunity that the right to record police is not some wacky, newfangled legal theory. It has been explicitly upheld by at least four federal appeals courts—in the 1st, 7th, 9th, and 11th circuits—and implicitly recognized by others. Federal judges outside of those four circuits have ruled that the right to record flows logically from other First Amendment rights, especially the right to gather information, and that it applies equally to all citizens, not just credentialed journalists.

Last July, for example, a federal judge in Texas, which is part of the 5th Circuit, ruled not only that the First Amendment protects the right to record police officers but that the right is well established enough that cops can be held personally liable for violating it. U.S. Magistrate Judge Mark Lane cited "a robust consensus of circuit courts" that "the First Amendment encompasses a right to record public officials as they perform their official duties." Although the 5th Circuit had not directly addressed the issue, Lane said, in two of its decisions it "seems to assume, without explicitly stating, that photographing a police officer performing his official duties falls under the umbrella of protected expression."

Police chiefs in cities such as New York and Washington—in the 2nd and D.C. circuits, respectively—take it for granted that "members of the public are legally allowed to record police interactions," as a 2014 NYPD memo put it, and that "a bystander has the same right to take photographs or make recordings as a member of the media," as D.C. Police Chief Cathy Lanier informed her officers in 2012. The positions taken by these departments are encouraging, but the fact that such memos are still necessary is not.

Even the prospect that cops who arbitrarily stop people from recording them cannot rely on qualified immunity may not be much of a deterrent, since taxpayers generally pick up the tab when cities settle these cases. According to a federal lawsuit filed last year, one of the NYPD officers who busted an activist for taking pictures of a stop-and-frisk encounter in 2012 (the charge: disorderly conduct) told him, "Now we are going to give you what you deserve for meddling in our business, and when we finish with you, you can sue the city for $5,000,000 and get rich. We don't care."

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  1. Woah Woah Woah…Did this say authorities are describing this as a murder? Would that make this literally the first time that has ever happened?

    1. It’s the crime the cop was charged with.

  2. My first thought upon seeing the video (and hearing the guy commenting) was “holy shit, run dude! RUN AWAY NOW!!!!!”

  3. According to a federal lawsuit filed last year, one of the NYPD officers who busted an activist for taking pictures of a stop-and-frisk encounter in 2012 (the charge: disorderly conduct) told him, “Now we are going to give you what you deserve for meddling in our business, and when we finish with you, you can sue the city for $5,000,000 and get rich. We don’t care

    Why should they care? They’re not going to be punished, and none of that money will come from them.

    The only way ANY of this stops is if either police officers start becoming personally liable for this stuff, or if it comes out of their pension funds.

    1. I suspect there’s a third route to mini-nirvana: governments will start firing cops who are held personally responsible for violating some well-known right. Police unions may fight it, but the increasing numbers (or reports?) of cops being held responsible for murders like this indicates to me that the police are on the losing side, and their unions will have to back off; any cop held personally liable for violatingsomeone’s rights is a clear financial risk to cities, and politicians can think of a lot better ways to buy votes than defend corrupt police.

      Eventually being held responsible for rights violations will be an accepted cause for termination and will also make other police reluctant to hire them.

      I think this is possible, sometimes I think it’s even likely, but I don’t think its inevitable.

  4. The planting of the taser is the damning thing that nobody is talking about. Nary a whisper of it on teh CNNz.

    1. Has it been positively ID’d as a taser? Yes, this should be trumpeted to the tallest mountain, even though a lesser crime than murder.

      1. I don’t think so. The video is grainy and only a few frames catch it.

        But it’s obvious he goes to the spot he shot from, picks something up and drops something by the dying Scott.

    2. I know. It was also in front of another cop!

  5. My Aunty Mackenzie recently got a nearly new blue Toyota Venza by working part time online… website here ????????????? http://www.jobsfish.com

  6. This website is devoted to recording cops and government people:

    http://photographyisnotacrime.com/

    It is astounding…and telling… how ballistic cops go when they figure out they are being recorded. At times, it is quite dangerous.

    There is a simple reason these people will record YOU all day long, but go absolutely bat-shit when YOU record them: THEY are not controlling the recording and what is or isn’t released.

    When you might have something to hide, this is how you behave.

    1. It is astounding…and telling… how ballistic cops go when they figure out they are being recorded.

      Tain’t just cops. It’s pretty much everyone who thinks themselves above the lesser classes.

      Helped a friend with a home inspection, other than cleaning the main ‘help’ was teaching her boyfriend to livestream and letting him borrow my smartphone. The look on that social worker’s face…. so worth it.

      “I’m pretty sure you aren’t allowed to do that.”

      “He is.”

      “I’m pretty sure he’s not.”

      “He is.”

      “I’ll have to call my boss about this. I object, I do not give permission, and I may call the cops for this.”

      I watched her call her boss ,just grinning at her. I bet that’s what Warty feels like all the time.

      I just realized I tell quite a few anecdotes. I thought I had to be older to turn into my grandfather?

      1. Damn. That sounds awesome. Did she call the cops? Was their gloating?

        1. there. dambit.

        2. Nah, that was pretty much it. Her boss told her we were within our rights to record. She made out as if she’d never really cared, not actually cared, y’know. Merely a passing curiosity about the law.

          It was pretty fun, though.

      2. Yeah, man – don’t leave us hangin! What happened??

      3. Untraumatized human minds are not capable of comprehending what Warty feels like.

  7. An officer in Arkansas is being sued personally for his conduct on the job, and a federal appeals court has rejected the officer’s claim of qualified immunity and allowed the lawsuit to proceed. The circumstances are different (arresting a guy without probable cause), but it sets a very good precedent for holding officers personally responsible for illegal behavior.

  8. The fact that the courts have ruled that it is permissible to video cops, shows they, really, have less rights than the average person.
    In many states it is required that both people involved in a filming have to consent. I guess cops don’t get that presumption of privacy.
    Sure, it is because the cops are acting in an official capacity, but what about when the cop does nothing wrong? The video goes out anyway, with the officer’s privacy rights destroyed.
    Libertineareans don’t care about them cops, though, do they? They are so rotten for stopping everyone from doing stuff, like smoking some weed.

    1. If you’re acting in an official capacity in public, what privacy can you possibly expect?

    2. Would you care to tell us what state that is, so that the astute readers here may look up the actual law there and show you why you are mistaken?

  9. The solution is to force police departments to buy billboard space near their offices, post the pictures and names of officers that violate rights, and post what they did. The length of time can be up to the courts but 6 months seems fair to me. Also have a “wall of shame” on the police department website, easily reached from the front page, with the same information.

    Police fear public embarrassment. Lets have the courts start ordering some.

  10. The cops like to say you can beat the rap but you can’t beat the ride (to jail). Until said rides given in bad faith at a minimum if not violation of law are at least a terminatable if not prosecutable offense, they will continue.

  11. The following thought comes to mind re the actions of police officers, or ANY “public official”. If they are so “unproud” of their actions, whatever they might be, that they would object to being filmed in the course of the said actions, perhaps there is something more than simply questionable about said actions

  12. Didn’t Scalia once write that a journalistic interest could be someone with a Xerox machine in their basement?

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