The Supreme Court has been asked to use a Denver dispute over a man who recorded police officers making an arrest to make it clear that Americans have a right to make those recordings.
“Not only is the right to photograph and videotape law enforcement activities and personnel in public places an established First Amendment right (regardless of whether the activity may be deemed ‘expressive’), but the right is essential to protect the citizen-press, which plays an ever-increasingly important role in the dissemination of information,” the justices have been told.
“Because the photography and videotaping of law enforcement personnel might be unpopular with the subjects, citizens in circuits that have not addressed the issue still run the risk of retaliation, including arrest and incarceration, for engaging in these activities.
“Absent a formal holding from this court that there is a robust First Amendment right to photograph or videotape law enforcement personnel and activities in public places, citizens run the risk of self-censoring and law enforcement personnel run the risk of misunderstanding citizens’ constitutional rights.”
The comments are in a friend-of-the-court brief from the Rutherford Institute, which acts in cases regarding civil and constitutional rights.
The underlying case involves Levi Frasier, who in 2014 saw two Denver plainclothes police officers arresting a man. He started recording on a tablet, and the video revealed the police pinning the suspect’s head to the pavement and punching him in the face.
“One of the police saw Frasier and called out ‘Camera!’ Frasier continued to record the incident as the suspect’s girlfriend approached the police, only to be grabbed by the leg and pulled to the ground by one of the officers. Frasier then stopped recording and took the tablet to his truck, which was parked nearby,” the institute explained.
The officers then demanded Frasier’s ID as well as his video. After they threatened him with arrest, he let them review the tablet but they could not find the recording.
But it subsequently was released to the media and a police department investigation resulted. Frasier then sued over his First Amendment rights, and while a trial court affirmed those, an appeals court reversed that, claiming that the right to film was not “clearly established.”
“Police body cameras will never serve as an effective check on police misconduct as long the cameras can be turned on and off at will and the footage remains inaccessible to the public. However, technology makes it possible for Americans to record their own interactions with police and they have every right to do so without fear of intimidation or arrest,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute.
“Mobile devices have proven to be increasingly powerful reminders to police that they are not all powerful. The ability to record police interactions in public provides for greater accountability when it comes to police interactions with the citizenry and should be preserved as a necessary right of the people.”
Its filing said the Supreme already has noted that, “without some protection for seeking out the news, freedom of the press could be eviscerated.”
One other appeals court, the 7th Circuit, in fact, said, “The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected…”
The law should not be interpreted to allow police officers to eliminate digital documentation of their actions, or “suppress inconvenient truths,” the brief said.
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