Can You Record the Police, Government Officials, and Others? – What Attorneys Should Know

$195.00

CLE Credits earned: 2 GENERAL (or 2 LAW & LEGAL for WA state)

Is there a First Amendment right to record the police? Do individuals have a Fourth Amendment right to unreasonable seizures of their phones? The number of mobile phone users in the world is expected to pass the five billion mark by the end of 2019. Given this, should the Courts and local governments recognize the right to record government officials as a critical check and balance for people living in a free, open, and democratic society? Are local, county, state, and federal laws regarding recording of government employees such as police officers unconstitutional? We will address these questions and more.

This course is co-sponsored with myLawCLE.

Key topics to be discussed:

•   1st Amendment Right to Record
•   What if there is a law that says you can’t record?
•   Right to Record Private Citizens or Private Places
•   Practice Pointers

Date / Time: November 18, 2019

•   2:00 pm – 4:00 pm Eastern
•   1:00 pm – 3:00 pm Central
•   12:00 pm – 2:00 pm Mountain
•   11:00 am – 1:00 pm Pacific

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•   Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
•   On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 7 business days after the original recording date and are view-able for up to one year.

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Original Broadcast Date: April 30, 2019

Frances Crockett Carpenter, Esq.

In 2006, after working for law firms, Frances decided to open her own practice. Frances focuses her practice on Plaintiff’s Personal Injury, Wrongful Death, Medical Malpractice, Premises Liability, Civil Rights, and Constitutional Law. Frances has received a peer review rating from Martindale-Hubbell* of 4.7 out of 5. Frances is licensed to practice in New Mexico State and Federal Court, Colorado Federal Court, United States Tenth Circuit, and the United States Supreme Court. In 2013 after a two week wrongful death trial involving a police shooting, a New Mexico jury awarded $10.3 million dollars to Frances’ clients. This was the largest civil rights verdict ever rendered in the State of New Mexico. While Frances’ practice focuses on many areas of law, she specializes in cases involving police misconduct, civil rights, and constitutional issues.

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Section I. 1st Amendment Right to Record
a) Case Law
b) Are there any restrictions?
c) Probable cause to arrest may defeat a First Amendment retaliatory arrest claim.
d Police given more leeway to restrict filming in a non-public forum
e) Restrictions on recording law enforcement officers have been upheld at
        • airports, Mocek v. City of Albuquerque [3 F. Supp. 3d 1002, 1072 (D.N.M. 2014)]
        • a police station, McDonough v. Rundle [2015 U.S. Dist. LEXIS 188199 (S.D. Fla. 2015)]
        • courthouses, Anthony v. Oliva [2013 U.S. Dist. LEXIS 37957 (C.D. Cal. 2013)]
        • the U.S. border, Askins v. United States Dep’t of Homeland Sec., 2013 U.S. Dist. LEXIS 53208 (S.D. Cal. 2013)
f) Qualified Immunity- No authority holds on the merits that First Amendment does not protect a general right to record. A lot of courts have held that the right to record is not clearly established.
g) Is it different if the recording is done by a bystander or third party verses the person who is the subject of the police action?

Section II. What if there is a law that says you can’t record?
a) Under a state wiretap law passed in 1968, known as Section 99, it is a crime to secretly record private individuals and government workers, even those on duty like police officers. Since 2011, the Boston Police Department has applied for a criminal complaint against at least nine people for secretly recording police officers performing their duties in public, and the Suffolk County District Attorney’s Office has opened numerous case files based on this felony charge as well. Two years ago, the ACLU of Massachusetts filed a lawsuit, Martin v. Gross, Case 1:16-cv-10462-PBS on behalf of Martin and Pérez, arguing that they have every right under the First Amendment to secretly record police officers carrying out their duties in public. Chief Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts granted summary judgment in favor of martin and Perez, finding the Massachusetts Wiretap Statute (Mass. Gen. L. ch. 272, § 99) unconstitutional when applied to secret recordings of government officials performing their duties in public. In her ruling, Judge Patti B. Saris of the United States District Court for the District of Massachusetts called that application of the wiretap law unconstitutional. The court explained that police officers have “diminished privacy interests” when performing their job in public, while the public has a constitutionally protected interest in newsgathering, information-dissemination, and monitoring the conduct of law enforcement officials.
b) Illinois’s wiretapping law (720 Illinois Compiled Statutes 5 / Criminal Code of 2012. Article 14, also called the Illinois eavesdropping law) was a “two-party consent” law. Illinois made it a crime to use an “eavesdropping device” to overhear or record a phone call or conversation without the consent of all parties to the conversation. The law was ruled unconstitutional in 2014 by the Illinois Supreme Court. The law defined an “eavesdropping device” as “any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communication whether such conversation or electronic communication is conducted in person, by telephone, or by any other means”. The law had been repeatedly and controversially used to arrest people who have video-taped police.

Section III. Right to Record Private Citizens or Private Places
a) Deshaney – Constitution meant to protect people from government, not people from people
b) Once again, the general rule for recording is: where there is public access in such traditional public forums as a sidewalk or a park you are permitted to record anything in plain sight (i.e. buildings, people) because in such places there is no reasonable expectation of privacy. In other areas that are generally open to the public but may be privately owned such as a mall, recording may be restricted either by posted signs or by mall personnel. In order to avoid confrontations it is always a good idea to check with property owners to obtain permission before recording. It also is important to remember that the First Amendment only protects against governmental limitations. Businesses and non-government organizations may require special credentials in order to gain entry to an event and to record. Usually such credentials may only be obtained by agreeing to or meeting certain requirements specified in writing, such as NFL sideline passes. Many press credentials issued by law enforcement agencies allow the bearer to cross police and fire lines under certain conditions. Whenever possible, apply for credentials to specific events well in advance because a basic press pass (if you have one) may not suffice.

Section IV. Practice Pointers – When warranted by facts, allege the following claims and theories along with or instead of right to record:
a) First Amendment retaliatory arrest based on verbal challenge to police officer
b) City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”)
c) Fourth Amendment Unreasonable Seizure of Phone
        i. Case Law
        ii. Excessive Force Related to Seizure of Phone