Mimesis Law
25 May 2019

It’s Easy to Video Cops, But Should You?

June, 20 2016 (Fault Lines) — These days, there are a lot of videos on the news and online showing bad police behavior. But getting that video can come at a high price, as Marcellina Citron-Garcia found out after Reading Police Officer Jesus Santiago-Dejesus smashed her phone, punched her in the face and hit her head on an exposed metal pipe.

She then spent three days in jail, charged with assault, harassment and resisting arrest. Luckily, there were plenty of other cameras around and this cop has been charged with a host of offenses. Somehow assault wasn’t among them, and neither of his cop accomplices were charged with anything.

Is your dash cam or smartphone going to help you much if you find yourself pulled over for something you didn’t do? What if you’re a witness to police brutality, evidence planting or a shooting?

Is recording the police in public even a fundamental first amendment right? Was Citron-Garcia justified?

A couple of states are in the process of codifying that right: House bill 15-1290 in Colorado and in California, the so-called “Right to Record Act” was signed into law by Governor Jerry Brown last year. But in many other states, the police are relying on wiretap laws passed long before the advent of current video technology to arrest and jail people for filming them.

The latest significant court ruling on the issue comes from the US District Court for the Eastern District of Pennsylvania; a case stemming from a joint lawsuit filed by two people in unrelated incidences of arrest for filming the police. The Court stated:

Fields’ and Geraci’s alleged ‘constitutionally protected conduct’ consists of observing and photographing, or making a record of, police activity in a public forum. Neither uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct.

And concluded with:

Absent any authority from the Supreme Court or our Court of Appeals, we decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions…

If it sounds absurd to you that one would have to vocalize a reason for engaging in an activity in order to establish your right to do so, then take a look at the Supreme Court decision in Salinas v. Texas, where the Roberts court decided that you have to actually speak up and announce you are invoking your right to remain silent, otherwise your silence can become an admissible indicator of guilt at trial.

If the court is suggesting that we need to “utter words” prior to filming the police, what might those words be?

“Hey you, bad policemen. I think you are doing something wrong so I’m going to record your activities because I’m expressing myself.”

Any of us could stumble upon a scene and feel like it’s a good idea to film the police. But is it?

First you might want to check your bank account because the police never arrest anyone for filming, they arrest for “obstruction” “interfering” “resisting” wiretap violations and more. They might cite and release you or you may be in jail for days, even longer if that bank account doesn’t contain enough money for bail and a private attorney.

Like your job? Let’s see how your boss likes it if you are suddenly gone for a few days with no warning? He/she might have very strong pro-cop sentiments and could be very unsympathetic. Citron-Garcias kids were without their mother for three days and when they got her back she had staples in her head.

What about that smartphone? Unless you have a pricey data plan, an effective streaming app and the latest in phone technology, all the cop has to do is smash your phone and pluck the SD card from the rubble. If you encounter some cops up to no good and want to record it, how much more of a stretch is it to violate your rights to keep that video under wraps?

In California your right to record the police is codified and a 2011 First Circuit decision, Glik v. Cunniffe, which upholds the right of a private citizen to record the activities of the police in a public place. But that hasn’t stopped the cops from smashing cameras and beating people over it.  The recent decisions in Fields and Geraci are in conflict with Glik and cops pay attention to these rulings. Wherever you are, know the laws that apply.

3 Comments on this post.

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  • TMM
    20 June 2016 at 12:33 pm - Reply

    Forget free speech — what about free press or the right to petition for redress of grievances or some hybrid Fifth Amendment/Sixth Amendment/Ninth Amendment right to create a record to defend yourself in court or from police misconduct.

  • Christopher Best
    20 June 2016 at 12:52 pm - Reply

    It was also easy for a group of black people to simply walk down the street in Selma. They ended up getting beaten, shot with fire hoses, whipped, had dogs set loose on them… You get the idea. Is there any question whether or not they should have done it?

    Granted, filming one cop frisking a drunk isn’t anywhere nearly as important in the grand scheme of things as marching for equal voting rights, but neither would have been one person walking down the road.

    It doesn’t make sense for any one individual to be involved in a movement that exposes you to great personal risk, but the only way things like this get changed is when individuals ignore the risk to themselves and unite to try to achieve change. Unless we’re each willing to get our skulls cracked, we can’t expect anyone else to stand up for us…

  • Keith
    29 June 2016 at 12:26 pm - Reply

    Yes