The Volokh Conspiracy

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Volokh Conspiracy

No drone surveillance of crime scene (even from 150 feet above), police say


Does the First Amendment include a right to gather information using flying drones? The federal trial court decision in Rivera v. Foley (D. Conn. Mar. 23) is to my knowledge the first court decision to consider the matter, and it's largely skeptical of the First Amendment claim—though of course it won't be the last word on the subject, both because it is just a trial court opinion, and because it mostly holds that any right to use drones wasn't "clearly established" at the time of the events.

Here are plaintiff Pedro Rivera's factual allegations (keep in mind that they are just the allegations):

[Rivera] is employed as a photographer and editor at "a local television station." … [O]n February 1, 2014, "he heard on a police scanner that there was a serious motor vehicle accident in the City of Hartford." … [Rivera] "responded" to the accident site and began operating his personally owned "drone," which [he] describes as a remote-controlled model aircraft outfitted for recording aerial digital images, to record visual images of the accident scene…. [Rivera] was "standing outside of the area denoted as the "crime scene" by officers responding to the accident … in a public place, operating his device in public space, observing events that were in plain view." … [F]rom his position, [Rivera] maneuvered his drone into the demarcated crime scene area by causing it to "hover over the accident scene … at an altitude of 150 feet." …

Officer [Edward] Yergeau and "other uniformed members of the Hartford Police Department" at the scene of the accident "surrounded [him], demanded his identification card, and asked him questions about what he was doing." … [Rivera] informed Officer Yergeau and the other police officers that he was a photographer and editor at a local television station, but that he was not acting as an employee of the television station at the time…. [Rivera] also acknowledged to Officer Yergeau and the other police officers that "he does, from time to time, forward the video feed from his drone to the television station for which he works." …

Officer Yergeau and the other police officers demanded that he cease operating the drone over the accident site and leave the area…. [I]mmediately after he was ordered to leave the accident site, Officer [Brian] Foley contacted [Rivera]'s employer and … "complained" to [Rivera]'s supervisor that [Rivera] had interfered with the Department's investigation at the accident site and compromised "the crime scene's 'integrity.'" … Officer Foley "either requested that discipline be imposed upon the [Rivera] by his employer, or suggested that the employer could maintain its goodwill with the employer [sic] by disciplining the [Rivera]." … "[A]s a direct and proximate result" of Officer Foley's contact with [Rivera]'s employer, [Rivera] was suspended from work "for a period of at least one week."

Because Rivera was suing for damages, and because he couldn't show any city policy of blocking drone overflights, he could prevail only if he could overcome the police officers' "qualified immunity"—he had to show that the officers' conduct "violate[d] a clearly established constitutional right," and any reasonable officer would have realized this. The court concluded that no right to gather information through videorecording had been recognized under Supreme Court and Second Circuit precedent. (Several decisions from other circuits have recognized such a right, but two others have held that no such right was clearly established at the time of those decisions, and in any event the Second Circuit, in which this particular case arose, hadn't spoken.)

But the court went further, concluding that, even if a right to videorecord was recognized, it did not clearly extended to hovering above—even 150 feet above—"the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene" (paragraph break added):

[I]n cases where the right to record police activity has been recognized by our sister circuits, it appears that the protected conduct has typically involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, the police activity at issue. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) ("[T]he complaint indicates that Glik filmed the officers from a comfortable remove and neither spoke to nor molested them in any way…. Such peaceful recording of an arrest in a public space that does not interfere with the police officers' performance of their duties is not reasonably subject to limitation."); Am. Civ. Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012) ("While an officer surely cannot issue a "move on" order to a person because he is recording, he police may order bystanders to disperse for reasons related to public safety and order and other legitimate law-enforcement needs…. Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.").

By contrast, here [Rivera] directed a flying object into a police-restricted area, where it proceeded to hover over the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene. See, e.g., U.S. v. Causby, 328 U.S. 256, 266 (1946) (holding that invasions to airspace situated within "the immediate reaches" of land—including airspace so close to the land that invasions of it affect the use and enjoyment of the surface of the land—are in the same category as invasions to the land itself). Even if recording police activity were a clearly established right in the Second Circuit, [Rivera]'s conduct is beyond the scope of that right as it has been articulated by other circuits.

This is probably the most First-Amendment-skeptical part of the court's analysis, and I'm not sure it's right. Practically, it's not clear to me why videorecording a scene from 150 feet above is any more of an intrusion into a police investigation than videorecording it from 150 feet away horizontally or diagonally (if the drone had been off to the side but looking down at angle), at least unless a police helicopter was nearby or was likely to be nearby.

And formally, I don't see why a trespass analysis should apply to flights over a crime scene that is on a public street, even if it does apply to flights over private property (or over nonpublic forum government property, such as military bases). It will be interesting to see what future courts hold in such situations, especially when "qualified immunity" isn't in play— for instance, if there's a challenge to a city no-drones-at-crime-scenes policy, or a suitable claim for an injunction.

The court did conclude, though, that an officer's demand—if such a demand could be proven—that Rivera be disciplined by the TV station (and that led to Rivera's suspension) might be an unconstitutional "prior restraint" on First Amendment rights:

[Rivera] has alleged sufficient facts to support a claim that Officer Foley acted to suppress [Rivera]'s right to freedom of the press when he contacted [Rivera]'s employer and threatened to withhold the "goodwill" of the Department if [Rivera] was not "disciplined," resulting in [Rivera]'s suspension from his job as a photographer and editor. Unlike Officer Yergeau's restraints upon [Rivera]'s conduct at the accident site, which did not implicate constitutionally protected activity, Officer Foley's alleged actions after [Rivera] left the crime scene operated as a restraint on [Rivera]'s subsequent right to work as a member of the press and therefore to gather and report on the news.

It is beyond dispute that this activity is protected under the First Amendment, and indeed, "basic to the existence of constitutional democracy." Even a "cantankerous press, an obstinate press, [and] an ubiquitous press" are critical to the flow of information and opinions to the public. Furthermore, it is clearly established that implicit in the right to publish the news is the right to gather the news, and that "[w]ithout some protection for seeking the news, freedom of the press could be eviscerated."

In this context, qualified immunity is not appropriate, as Defendants cannot credibly contend that it was 'objectively reasonable' for Officer Foley to believe that he was not violating [Rivera]'s First Amendment right when he allegedly contacted [Rivera]'s employer to compel [Rivera]'s suspension. Nor is it plausible to suggest that, on the face of the Complaint, officers of reasonable competence could disagree on the legality of such an action. Accordingly, the Court finds that Officer Foley is not entitled to qualified immunity on these allegations, and [Rivera]'s claim on these facts will be sustained.

(Note that Rivera's drone flight, if motivated by a desire to commercially exploit the footage, might have violated the FAA's rules, especially the restrictive rules in effect in early 2014. But that's a separate question from whether the police may block such drone flights that overfly a crime scene, especially since some of those drone flights might be noncommercial, and some others might be allowed under newly liberalized commercial drone licensing rules.)