Major Ruling: You Can Record Police

[Jerome]

Major Ruling: You Can Record Police

[I] "s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative."

"Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'"

"[A] citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'"


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[Jerome]

http://www.citmedialaw.org/sites/cit...-1764P-01A.pdf

[Escapegoat]

Promising, but will it end there?

[Stephen Maturin]

It most certainly won't end there, regardless of how the pigs choose to proceed. They could take another run at qualified immunity with the Supreme Court, but SCOTUS rarely wastes time on no-brainers like this.

If the cops don't petition for certiorari (or their petition gets denied), the case will go back to the trial court for further proceedings. All the First Circuit held was that the cops aren't entitled to a dismissal right out of the gate. It remains to be seen whether the plaintiff can prove the allegations in his complaint. From this point on the case will proceed along standard lines (case management conferences, disclosures, discovery, dispositive motions, maybe ADR, trial, post-trial motions, etc.).

If the person in charge of this litigation for the city and the cops has any goddamn sense whatsoever, s/he'll push for a speedy settlement. If the city's truly fortunate, the folks with the final say will have more on the ball than the dipshit prosecutor who decided to go forward on those ludicrous wiretapping and disturbing-the-peace charges.

[ChuckF]

Yeah, what Maturin said. Plaintiff hasn't actually borne any burden of proof yet, and hasn't really won anything a path to discovery and trial that is not obstructed by the qualified immunity doctrine. But the First Circuit opinion reads kinda like a handbook for the trial court. So I wouldn't say that this is a major ruling, because it doesn't really add much to first amendment jurisprudence, but it does probably mean that you can (probably) record the cops in the First Circuit, at least most of the time, without being arrested for it, absent other factors that might mean you can't record the cops, or can be arrested for it.

Also I am kind of impressed at the balls on the pigs, citing some unpublished 4th Circuit decision in their 12(b)(6) motion to support the contention that the right to film cops is not well-settled law.

[Stormlight]

Originally Posted by Stephen Maturin

certiorari

You just made that word up, didn't you? Is it like "civilizated"?

[Pan Narrans]

It's not made-up; a certiorari is a gladiator who fights with a net and a trident

[Stephen Maturin]

Originally Posted by Stormlight

You just made that word up, didn't you? Is it like "civilizated"?

Originally Posted by Pan Narrans

It's not made-up; a certiorari is a gladiator who fights with a net and a trident

Good cancer, envy hobos.

[Stormlight]

I'd rather be an envy hobo than live in a country where you can petition gladiators to challenge court rulings! A net and a trident! Who has ever heard of such silliness?!

[Stephen Maturin]

..........................................

[Clutch Munny]

Originally Posted by Pan Narrans

It's not made-up; a certiorari is a gladiator who fights with a net and a trident

Like this.

[LadyShea]

What do you law people think will happen with ACLU of Illinois vs. Anita Alvarez? Arguments on the appeal are in 2 weeks I think.

I can't even figure out why it was dismissed, the judge's ruling makes no sense to me. I would think that recording of any one, by any means, in public (no expectation of privacy) especially the public activities of public servants, is automatically a 1st Amendment issue with plenty of case law.

[Stephen Maturin]

The trial court order on appeal in Alvarez is available here (pdf, 9 pages). The ACLU filed suit in 2010 against the Cook County, Illinois state's attorney. The ACLU alleged in its complaint that, in furtherance of its mission to detect and deter police misconduct, it developed a program to audiotape cops without their consent under certain circumstances. The ACLU alleged that it wanted to implement the program in Cook County but hadn't done so for fear that the state's attorney would prosecute under a state statute criminalizing eavesdropping. The ACLU wanted a declaratory judgment that the eavesdropping statute is unconstitutional as applied to its program and an order enjoining the statute's enforcement in that context.

The judge dismissed the complaint for lack of jurisdiction. She ruled that the allegations regarding threatened prosecution were too speculative to qualify as an injury for purposes of standing.

The ACLU then drafted an amended complaint that would have added a couple of individual plaintiffs and beefed up the averments regarding threatened prosecution. The above order addresses the ACLU's request to filed the amended complaint.

The rules of civil procedure heavily favor allowing a plaintiff to amend her complaint, but a court can reject a proposed amendment if it fails to cure the deficiencies in the initial pleading or the amendment would be futile. The judge determined that the amended complaint did in fact cure the deficiencies that led to the first dismissal and adequately pled standing to sue, so no problems there. So far, so good.

At that point things go horribly awry. The judge ruled that the proposed amendment would be futile because "[t]he ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record." (Opinion at 7.)

Trouble is, that doesn't come within hollering distance of stating the correct legal standard for determining whether a proposed pleading amendment would be "futile." The sole inquiry in that regard is whether the amended pleading would survive a motion to dismiss under Rule 12(b)(6), i.e., whether the pleading alleges a "plausible" claim for relief under the First Amendment. The judge doesn't even discuss the relevant standards, much less apply them to the ACLU's amended complaint.

The judge's reliance on a 1997 Seventh Circuit case as authority for the proposition that "there is nothing in the Constitution that guarantees the right to record a public event" (Opinion at 7) is, at its very best, spectacularly disingenuous. The 1997 case involved a police department order prohibiting spectators from bringing personal items that could be used as weapons to a KKK rally. The order made exception for media people to bring pens, paper, tape recorders, cameras, etc. The plaintiff, who wasn't a media person, got arrested when he tried to enter the rally site with a tape recorder. The court of appeals ruled that the "weapons ban" was subject to First Amendment scrutiny but passed muster as a valid time/place/manner regulation that was reasonably applied in this case given the high potential for violence at these events.

The factual and legal distinctions between the 1997 case and Alvarez are painfully obvious. The judge should be ashamed for citing that case, even prefaced with the weasel word C.f.

Then, after previously ruling that the amended complaint cured the prior deficiencies as to standing allegations, the judge essentially reversed herself and found that the ACLU hadn't properly allege standing after all. Why? Because there's no First Amendment protection absent a "willing speaker," and the amended complaint didn't allege that cops and the people they're dealing with would willingly speak with the ACLU or third-parties to whom the ACLU might give access to the recordings. (Opinion at 8.)



That portion of the ruling is just plain ghastly. First of all, the proposed amended complaint relies on the Press and Petition Clauses of the First Amendment in addition to the Speech Clause. Way to ignore some pretty important shit there, judge!

Moreover, "willing speaker" issues arise in contexts so wholly different than the one presented here that no one could possibly consider the cases cited in that part of the opinion even remotely analogous. It's like the court is holding up a big sign saying "The Defendant is lying, and we approve!!" It's also like the court is positing the constitutionality of the eavesdropping statute (which, subject to limited exceptions, requires consent to record) to prove the absence of a cognizable First Amendment right.

Again,

Sure, I think we can safely say that there's no Supreme Court or Seventh Circuit case directly on point. Well, whoopie shit. The existence of a First Amendment right to gather and disseminate information on matters of public concern is so well established that it doesn't (or at least shouldn't) require extended discussion. The subject of this lawsuit is just a fact-specific application of that particular right. You'd think a federal judge might evidence at least a passing familiarity with application of general rules to specific fact patterns, but hey, guess not!

The good thing here is that the ACLU will likely end up getting exactly what it wanted all along -- a Seventh Circuit ruling acknowledging a constitutional right to record cops in the course of performing their duties without their consent, so long as other conditions are met. The way this case is postured, the court of appeals won't be able to duck the issue completely unless it rules that the allegations in amended complaint were still too nebulous to support standing. That seems p. damned unlikely to me.