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The First Amendment includes the right to videotape police officers, subject only to reasonable time, place, and manner restrictions, the Fifth Circuit ruled last Thursday.
The ruling comes after Fort Worth, Texas police officers detained a man for filming their police station from the sidewalk. And it's not terribly shocking. Every circuit court to address the issue has ruled similarly. Nonetheless, the court ruled, that right to film wasn't clearly established at the time of the detention, meaning that the detained man couldn't pursue his civil rights suit against the officers on First Amendment grounds.
The case, Turner v. Driver, arose after Phillip Driver filmed the Fort Worth police department in September 2015. As he was filming he was approached by two officers, Grinalds and Dyess (the opinion does not give their first names), who were, in the words of the Fifth, "concerned about who was walking around with a video camera."
"How's it going, man?" Grinalds asked Turner. "Got your ID with you?"
When Turner refused to provide identification, police handcuffed him, took his camera, and detaining him in the back of their patrol car before a lieutenant arrived and he was released. The next month, Turner filed suit under 42 U.S.C. § 1983, alleging that the officers had violated his First, Fourth, and Fourteenth Amendment rights.
Courts have repeatedly recognized a right to film police officers, so this might seem like an open-and-shut case. But the Fifth Circuit didn't see it as so straightforward.
To overcome the presumption of qualified immunity in a Section 1983 suit, Turner needed to show not just that his constitutional or statutory rights were violated, but that those rights were clearly established at the time. The district court found that Turner's First Amendment right to film police wasn't clearly established, explaining that the circuits were split on the question.
That is not the case, the Fifth Circuit explained on appeal. The First and Eleventh Circuits had ruled that the First Amendment includes the right to film police, while the Seventh has extended it to recording audio of police officers. Further, no circuit court has ruled otherwise, though both the Third and the Fourth have found that such rights were not clearly established in similar Section 1983 suits.
But while a circuit split would have meant, definitively, that there was no clearly established right, the lack of a split doesn't mean that the right itself was clearly recognized. Finding that the right wasn't "beyond debate" at the time Turner was detained, the Fifth upheld the officers' claims of qualified immunity -- then went on to state that indeed, in future cases, "a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions."
The court explained:
Filming the police contributes to the public's ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen's recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.
The ruling means Turner won't be able to pursue his First Amendment claims, but he can go forward on his Fourth. His detention without probable cause, as alleged, violated his Fourth Amendment right to be free from unlawful arrest, the Fifth ruled. "We are satisfied that no objectively reasonable person in these officers' position could have believed that there was probable cause to arrest Turner under the circumstances alleged," the court concluded, finding that Grinalds and Dyess were not entitled to qualified immunity at this stage.
The majority opinion was penned by Judge Jacques L. Wiener and joined by Judge Stephen A. Higginson in whole and Judge Edith Brown Clement in part. Clement wrote separately to dissent from the "dicta" holding that there was a clearly established right to film police from here forward, and the court's ruling regarding Turner's unlawful arrest claims. The Supreme Court has cautioned, in last month's White v. Pauly opinion, warning circuits against finding "clearly established law" based on "a high level of generality." With no "directly controlling authority" or broad consensus of persuasive cases, the court should have ruled for the officers and left it at that, Judge Clement argued.
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