The Right to Record Walter Scott's Death

Illegal harassment of camera-carrying bystanders


Mike Mozart

Even before it became clear that Feidin Santana was witnessing what local authorities later described as a murder, it took guts for him to record the police encounter that ended in Walter Scott's death. Santana, who was walking to work at a barbershop in North Charleston, South Carolina, the day before Easter, risked retaliation by camera-shy cops the moment he stopped talking on his smartphone and started using it to capture Scott's interaction with patrolman Michael Slager.

Although the First Amendment right to record the police as they perform their duties in public is well established, cops often violate that right by ordering people to turn off their cameras, confiscating their cellphones, or arresting them on trumped-up charges. The shooting of Walter Scott, which led to Slager's arrest thanks to the details revealed by Santana's video, illustrates both the prevalence of this contempt for constitutional rights and the importance of counteracting it.

After Scott fell to the ground, struck by five of the eight rounds that Slager fired at him as he fled a traffic stop, Santana continued recording. "One of the officers told me to stop," Santana told CNN. "It was because I say to them that what they did, it was an abuse, and I witnessed everything."

The New York Times reported that when Scott's older brother, Anthony, arrived at the crime scene and took pictures of the body, three officers "surrounded him, telling him to turn over his phone." He gave it to them. "Hours later," the Times said, North Charleston Police Chief Eddie Driggers "arrived, returned Mr. Scott's phone and offered his condolences."

As Driggers seemed to recognize, there is no legal basis for such interference with camera-carrying bystanders. The right to record police has been explicitly upheld by at least four federal appeals courts and implicitly recognized by others.

Federal judges outside of those four circuits have ruled that the right to record flows logically from the First Amendment right to gather information and applies equally to everyone, not just credentialed journalists. Big-city police chiefs take it for granted that "members of the public are legally allowed to record police interactions," as a 2014 New York Police Department memo put it, and that "a bystander has the same right to take photographs or make recordings as a member of the media," as Washington, D.C., Police Chief Cathy Lanier informed her officers in 2012.

The behavior of North Charleston police after the shooting of Walter Scott suggests why such memos are necessary. So do the actions of the officers who arrested Austin, Texas, activist Antonio Buehler three times in 2012 for daring to record police encounters.

Last July, responding to a lawsuit filed by Buehler, a federal judge ruled that the right he was exercising is established well enough that police cannot rely on qualified immunity to escape liability 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."

Even the threat of personal liability may not be enough to deter cops from harassing people who record them, since taxpayers typically pick up the tab when cities settle lawsuits arising from such incidents. Last year, for instance, New York City paid $125,000 to settle a lawsuit brought by Brooklyn resident Dick George, who said police roughed him up and arrested him for disorderly conduct after he recorded a stop-and-frisk encounter in 2012.

According to George's complaint, one cop said, "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 million and get rich. We don't care."

Anthony Scott encountered a similar attitude when the cops took his cellphone. "It was eerie how they were acting," he told the Times. "They were cocky."

NEXT: Brickbat: Should I Not Have Said That?

Cameras Police

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20 responses to “The Right to Record Walter Scott's Death

  1. As Driggers seemed to recognize, there is no legal basis for such interference with camera-carrying bystanders.

    Chief Driggers might have imparted that wisdom to his law enforcement professionals during their training, and perhaps mete out punishment to them when they violate the law by stealing property and attempting to destroy video evidence.

    1. mete out punishment

      Another paid vacation? Don’t throw me in that briar patch, Chief!

    2. And that is where the Police Unions come in, often making it difficult to diciplne officers unless they can actually be fired, amd making firing them for anything less than outright and proven criminality next to impossible.

      1. Unions are supposed to make that difficult, just like defense attorneys are supposed to make prosecution difficult. Unions don’t make it impossible, however. That’s lazy management not doing their jobs.

  2. The ability to record officers of the law without hindrance is undoubtedly important, but it serves solely as an auxiliary, occasional tool in pursuit of recourse to their misdeeds. The institutional and legal powers and protections police enjoy, the vast majority of which are entirely unjustifiable, establish an environment that permits degenerate, authoritarian thugs to abuse their discretionary powers; to mistreat the public they are sworn to serve procedurally; to commit the vilest of crimes — a spectacularly variant range, from theft to capital murder — without judicial reprisal of any sort, or so much as substantial reprimand at the behest of the respective agencies given officers are employed by; and to bring ruination upon aggrieved parties by using the retarded laws and regulations governing the adjudication of police misconduct and complaints filed, which are nearly universally favor police officers to a spectacularly disproportionate degree.

    Make law enforcement officers personally responsible for every action taken, every act committed, and every decision made, as is — rightly — the case for the general public. Shielding these thieving, rapacious, murderous bastards from the consequences of their misbehavior is abominable.

    1. So you want to treat them as ‘civilians? Un possible.

      1. It took quite some time for me to find it, but after careful sifting through Thymirus’ lengthy (and impressively cogent) post, I was able to find “This Tree of Liberty Chips Tyrants” hidden in the text.

      2. There’s a small part of the problem right there: This “civilian” crap. Cops are just as much a “civilian” as a non-cop. This military nonsense sets a tone that is dangerous, and we’re seeing that in spades today.

  3. How can you have a secret police if you asswipes run around recording them?

    1. Where’s that confounded “like” button!?

  4. When cops face no consequences for illegally arresting people who are engaging in legal activity, then is there no rule of law.

  5. If the cops are acting in a reasonable and lawful manner, then they should have no problem with being recorded. So why all the fuss by policemen every time someone is recording their interactions with the public?

    1. They just get upset when you don’t film their good side. You know the narcissism runs rampant in that crowd.

    2. So why all the fuss by policemen every time someone is recording their interactions with the public?

      Because they can. When they face no consequences for illegally arresting people who are engaging in legal activity that they don’t like, that’s what they’re going to do.

  6. Cops in Austin routinely relieve young folks of their stashes and tell them to run along. Consultants paid by the prosecution constantly parrot within earshot that once the Legislature, in its Infallible Majesty, bans something, that something a) brings irresistible pleasure and b) turns people into murderers. So a mechanism that picks yokels out of cornfields and VA hospitals, hands them guns and turns them loose to confiscate tempting drugs could very well be the placebo effect that leads them to murder people–like the DA and “expert” witnesses predicted. Mystical blind faith plus unlimited power and sumptuary laws combine to make it not simply justifiable that Walter Scott be shot in the back, but require the DA to instantly pronounce it “justified.” Poor offissa Slager can’t help it if some rogue DA chooses to believe it was really him and not Satanic Reefer Madness pulling the trigger in the video.

  7. This is in area where I become the most frustrated with the right leaning talking heads (even someone like Gutfeld) because SUPPORT LAW ENFORCEMENT!
    But, I have some optimism because many normally right-of-center folks are seeing the folly of just blindly trusting police, i.e. civil forfeiture, marijuana laws, shooting folks dogs, etc. Clearly a long way to go, but it is starting.

  8. About the only thing that will really stop this is allowing/no longer prohibiting the use of force (including deadly) to resist such seizures.

    We don’t tell people that they must accept robbery, rape, etc. and fight later in court, especially a court that the robber/rapist had significant control over. Most people know that this would function to enable more robbery, rape, etc.

  9. This will be the down fall to the greatest country on the planet. too many leaches think they are entitled to other peoples earnings. ?????

  10. “Now we are going to give you what you deserve for meddling in our business, and when we finish, you can sue the city for 5 million. We dont care.”

    If anyone has any doubts about on police having personal or professional stake in not breaking the law, this statement needs to be drillled into their head. Does anyone know if this statement was recorded, or was it just testimony?

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