Harassment

Photographing Someone Being Arrested Doesn't Count as "Stalking"

Because "there is a First Amendment right to videotape police officers while they are conducting their official duties in public," that right applies even over the objections of the people being arrested by the officers.

|The Volokh Conspiracy |

From yesterday's Florida Court of Appeal decision in Pickett v. Copeland:

Terrance J. Pickett appeals the trial court's Final Judgment of Injunction for Protection Against Stalking…. As defined in section 784.048(2), Florida Statutes (2016), stalking occurs when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person[.]" "Harass" is defined in section 784.048(1)(a) to mean "engag[ing] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." In its turn, "course of conduct" is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose." § 784.048(1)(b)….

[W]e are compelled to conclude that the evidence was neither competent nor substantial to carry Ms. Copeland's burden [to provide evidence of stalking].

While there was evidence that Mr. Pickett followed Ms. Copeland from the Murphy gas station on Thanksgiving Day in 2016, he did so because there was an outstanding warrant for Ms. Copeland's arrest for violating the injunction he had obtained against her, and while he was following her, it is undisputed that he was talking to the police. That was, at most, a single act of following.

Furthermore, though Ms. Copeland accused Mr. Pickett of driving past her house on multiple occasions—presumably to prove harassment—the evidence only suggested a single incident of his passing by, which falls short of a malicious "course of conduct" serving "no legitimate purpose." § 784.048(1)(a), (b) & (2), Fla. Stat.; see Leach, 162 So. 3d at 1106 (reversing injunction and holding Leach's several messages to Kersey by phone, through friends, and on social media, after she learned of an eighteen-month affair between Kersey and Leach's husband, could not be found to serve " 'no legitimate purpose'").

[Footnote moved: It is clear that the trial court was troubled by the fact that when law enforcement caused Ms. Copeland to pull over into a parking lot, Mr. Pickett got out of his vehicle and used his cell phone to videotape her arrest. However, for purposes of the definition of harassment, "course of conduct" "does not include constitutionally protected activity[.]" § 784.048(1)(b), Fla. Stat. (2016). Even though we recognize that this protective language will not necessarily provide immunity for every instance where an individual videotapes an arrest—because an individual's actions may go beyond the scope of the constitutional protections—there is a First Amendment right to videotape police officers while they are conducting their official duties in public:

"Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendmentprotects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public." Fields v. City of Philadelphia, 862 F.3d 353, 355-56 (3d Cir. 2017).]

As a result, we hold there was no competent, substantial evidence to support the imposition of an injunction for protection against stalking. Consequently, the final judgment is reversed.

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  1. I am puzzled as to why, if video recording police officers while they are conducting their official duties in public, presumably including audio, we in Massachusetts apparently don’t have the right to do record when we are the subject of police questioning, as in a traffic stop.

    (BTW, shouldn’t we move on from “tape,” as in videotape, and use “record,” as in “make a record,” or “recording,” instead?)

    1. Tape could denote an unedited recording.

    2. You are allowed to record the police at a traffic stop.
      It took a federal court case to narrow that (apparently quite selectively enforced) MA law.
      MA still has that 2-party consent law (modified not in the text, but by the count rulings), so you do have to record openly not secretly, although you don’t necessarily have to tell the cop – for example, you can have a mounted dash cam.
      (There is an article about it at boston.com “How a Boston Case Won You the Right to Record Police”, but I forget how to get a hyperlink to post in reason’s #$%^&! comments S/W. Google should be able to easily find it).

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