Citizens and Journalists Have Right to Record Police in Public
Philadelphia, Pa. — In a victory for the First Amendment, the U.S. Court of Appeals for the Third Circuit has ruled that citizens and journalists have a right to record police in public without fear of retaliation. Attorneys for The Rutherford Institute had filed a friend-of-the-court brief in the case arguing that the right of citizens to make recordings of public law enforcement activities is essential to protecting the citizen-press, which plays an ever-increasingly important role in the dissemination of information. A lower court had previously ruled that the City of Philadelphia could not be sued by those who were arrested or physically assaulted by police allegedly for having filmed police carrying out their duties in public.
Affiliate attorneys Jason P. Gosselin and Christopher F. Moriarty assisted The Rutherford Institute advancing the arguments in the Fields and Geraci brief.
“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 arrest or physical assault,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “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.”
In September 2012, Amanda Geraci, a legal observer who monitors police interactions with citizens at protests or demonstrations, attended a protest against fracking at the convention center in Philadelphia. When police arrested one of the protesters, Geraci moved to a spot where she could better observe and videotape the incident. According to Geraci, a city police officer subsequently retaliated against her by physically restraining her against a pillar and preventing her from videotaping the arrest. In a separate incident, Temple University student Richard Fields was walking on Broad Street in Philadelphia when he saw 20 police officers standing outside a house that was hosting a party. Fields took a photograph of the scene with his cell phone. An officer then approached Fields, asked if Fields “likes taking pictures of grown men,” and ordered him to leave. When Fields refused, the officer handcuffed and arrested him, searched his belongings, and charged him with obstructing a public passage. The charge was eventually dropped. Both Geraci and Fields filed lawsuits asserting that the police retaliated against them for exercising their First Amendment right to record police activities in public.
In ruling on the lawsuits, a federal district court declared that the First Amendment protects the right to record police activities in public only if they can assert there was some “expressive” purpose for the recording. However, in reversing the lower court’s ruling, the Third Circuit Court of Appeals declared that the right to record police is not so limited, noting that numerous other courts have affirmed a First Amendment right to collect information about government activities, and have specifically affirmed a right to record police carrying out their duties in public. The court also ruled that the police officers involved were protected by qualified immunity, so they cannot be held personally liable for their actions.
The Rutherford Institute has granted this website permission to reprint selected articles.
The views expressed in this essay reflect those of The Rutherford Institute and do not necessarily reflect those `of APS Radio News.
Death at Your Door: Knock-and-Talk Police Tactics Rip a Hole in the Constitution By John W. Whitehead
“It’s 4 in the morning, there’s headlights that are shining into your house; there’s a number of different officers that are now on the premises; they’re wearing tactical gear; they have weapons; and they approach your front door. Do you think that the ordinary citizen in that situation feels that they have an obligation to comply?”— Michigan Supreme Court Justice Richard Bernstein
“It’s 4 in the morning, there’s headlights that are shining into your house; there’s a number of different officers that are now on the premises; they’re wearing tactical gear; they have weapons; and they approach your front door. Do you think that the ordinary citizen in that situation feels that they have an obligation to comply?”— Michigan Supreme Court Justice Richard Bernstein It’s 1:30 a.m., a time when most people are asleep. Your neighborhood is in darkness, except for a few street lamps. Someone—he doesn’t identify himself and the voice isn’t familiar—is pounding on your front door, demanding that you open up. Your heart begins racing. Your stomach is tied in knots. The adrenaline is pumping through you. You fear that it’s an intruder or worse. You not only fear for your life, but the lives of your loved ones. The aggressive pounding continues, becoming more jarring with every passing second. Desperate to protect yourself and your loved ones from whatever threat awaits on the other side of that door, you scramble to lay hold of something—anything—that you might use in self-defense. It might be a flashlight, a baseball bat, or that licensed and registered gun you thought you’d never need. You brace for the confrontation, a shaky grip on your weapon, and approach the door cautiously. The pounding continues. You open the door to find a shadowy figure aiming a gun in your direction. Immediately, you back up and retreat further into your apartment. At the same time, the intruder opens fire, sending a hail of bullets in your direction. Three of the bullets make contact. You die without ever raising your weapon or firing your gun in self-defense. In your final moments, you get a good look at your assailant: it’s the police. This is what passes for “knock-and-talk” policing in the American police state. “Knock-and-shoot” policing might be more accurate, however. Whatever you call it, this aggressive, excessive police tactic has become a thinly veiled, warrantless exercise by which citizens are coerced and intimidated into “talking” with heavily armed police who “knock” on their doors in the middle of the night. Poor Andrew Scott didn’t even get a chance to say no to such a heavy-handed request before he was gunned down by police. It was late on a Saturday night—so late that it was technically Sunday morning—and 26-year-old Scott was at home with his girlfriend playing video games when police, in pursuit of a speeding motorcyclist, arrived at Scott’s apartment complex, because a motorcycle had been spotted at the complex and police believed it might belong to their suspect. At 1:30 a.m., four sheriff’s deputies began knocking on doors close to where a motorcycle was parked. The deputies started their knock-and-talk with Apartment 114 because there was a light on inside. The occupants of the apartment were Andrew Scott and Amy Young, who were playing video games. First, the police assumed tactical positions surrounding the door to Apartment 114, guns drawn and ready to shoot. Then, without announcing that he was a police officer, deputy Richard Sylvester banged loudly and repeatedly on the door of Apartment 114. The racket caused a neighbor to open his door. When questioned by a deputy, the neighbor explained that the motorcycle’s owner did not live in Apartment 114. This information was not relayed to the police officer stationed at the door. Understandably alarmed by the aggressive pounding on his door at such a late hour, Andrew Scott retrieved his handgun before opening the door. Upon opening the door, Scott saw a shadowy figure holding a gun outside his door. Still police failed to identify themselves. Unnerved by the sight of the gunman, Scott retreated into his apartment only to have Sylvester immediately open fire. Sylvester fired six shots, three of which hit and killed Scott, who had no connection to the motorcycle or any illegal activity. So who was at fault here? Was it Andrew Scott, who was prepared to defend himself and his girlfriend against a possible late-night intruder? Was it the police officers who banged on the wrong door in the middle of the night, failed to identify themselves, and then—without asking any questions or attempting to de-escalate the situation—shot and killed an innocent man? Was it the courts, which not only ruled that the police had qualified immunity against being sued for Scott’s murder but also concluded that Andrew Scott provoked the confrontation by retrieving a lawfully-owned handgun before opening the door? Or was it the whole crooked system that’s to blame? I’m referring to the courts that continue to march in lockstep with the police state, the police unions that continue to strong-arm politicians into letting the police agencies literally get away with murder, the legislators who care more about getting re-elected than about protecting the rights of the citizenry, the police who are being trained to view their fellow citizens as enemy combatants on a battlefield, and the citizenry who fail to be alarmed and outraged every time the police state shoots another hole in the Constitution. What happened to Andrew Scott was not an isolated incident. As Supreme Court nominee Neil Gorsuch recognized in a dissent in U.S. v. Carloss: “The ‘knock and talk’ has won a prominent place in today’s legal lexicon… published cases approving knock and talks have grown legion.” In fact, the Michigan Supreme Court is currently reviewing a case in which seven armed police officers, dressed in tactical gear and with their police lights on, carried out a knock-and-talk search on four of their former colleagues’ homes early in the morning, while their families (including children) were asleep. The police insist that there’s nothing coercive about such a scenario. Whether police are knocking on your door at 2 am or 2:30 pm, as long as you’re being “asked” to talk to a police officer who is armed to the teeth and inclined to kill at the least provocation, you don’t really have much room to resist, not if you value your life. Mind you, these knock-and-talk searches are little more than police fishing expeditions carried out without a warrant. The goal is intimidation and coercion. Unfortunately, with police departments increasingly shifting towards pre-crime policing and relying on dubious threat assessments, behavioral sensing warnings, flagged “words,” and “suspicious” activity reports aimed at snaring potential enemies of the state, we’re going to see more of these warrantless knock-and-talk police tactics by which police attempt to circumvent the Fourth Amendment’s warrant requirement and prohibition on unreasonable searches and seizures. We’ve already seen a dramatic rise in the number of home invasions by battle-ready SWAT teams and police who have been transformed into extensions of the military. Indeed, with every passing week, we hear more and more horror stories in which homeowners are injured or killed simply because they mistook a SWAT team raid by police for a home invasion by criminals. Never mind that the unsuspecting homeowner, woken from sleep by the sounds of a violent entry, has no way of distinguishing between a home invasion by a criminal as opposed to a government agent. Too often, the destruction of life and property wrought by the police is no less horrifying than that carried out by criminal invaders. These incidents underscore a dangerous mindset in which civilians (often unarmed and defenseless) not only have less rights than militarized police, but also one in which the safety of civilians is treated as a lower priority than the safety of their police counterparts (who are armed to the hilt with an array of lethal and nonlethal weapons). In fact, the privacy of civilians is negligible in the face of the government’s various missions, and the homes of civilians are no longer the refuge from government intrusion that they once were. It wasn’t always this way, however. There was a time in America when a person’s home was a sanctuary where he and his family could be safe and secure from the threat of invasion by government agents, who were held at bay by the dictates of the Fourth Amendment, which protects American citizens from unreasonable searches and seizures. The Fourth Amendment, in turn, was added to the U.S. Constitution by colonists still smarting from the abuses they had been forced to endure while under British rule, among these home invasions by the military under the guise of writs of assistance. These writs were nothing less than open-ended royal documents which British soldiers used as a justification for barging into the homes of colonists and rifling through their belongings. James Otis, a renowned colonial attorney, “condemned writs of assistance because they were perpetual, universal (addressed to every officer and subject in the realm), and allowed anyone to conduct a search in violation of the essential principle of English liberty that a peaceable man’s house is his castle.” As Otis noted:
Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.
To our detriment, we have now come full circle, returning to a time before the American Revolution when government agents—with the blessing of the courts—could force their way into a citizen’s home, with seemingly little concern for lives lost and property damaged in the process. Actually, as I make clear in my book Battlefield America: The War on the American People, we may be worse off today than our colonial ancestors when one considers the extent to which courts have sanctioned the use of no-knock raids by police SWAT teams (occurring at a rate of 70,000 to 80,000 a year and growing); the arsenal of lethal weapons available to local police agencies; the ease with which courts now dispense search warrants based often on little more than a suspicion of wrongdoing; and the inability of police to distinguish between reasonable suspicion and the higher standard of probable cause, the latter of which is required by the Constitution before any government official can search an individual or his property. Winston Churchill once declared that “democracy means that if the doorbell rings in the early hours, it is likely to be the milkman.” Clearly, we don’t live in a democracy. No, in the American police state, when you find yourself woken in the early hours by someone pounding on your door, smashing through your door, terrorizing your family, killing your pets, and shooting you if you dare to resist in any way, you don’t need to worry that it might be burglars out to rob and kill you: it’s just the police.
The views expressed in this essay are those of the author and do not necessarily reflect those of APS Radio News.
The Rutherford Institute has granted this website permission to reprint selected essays.
Washington, D.C. -- In refusing to hear a challenge to Texas’ asset forfeiture law, the U.S. Supreme Court is allowing Texas police to keep $201,000 in cash primarily on the basis that the seized cash—the proceeds of a home sale—was being transported on a highway associated with illegal drug trade, despite any proof of illegal activity by the owner. Asset forfeiture laws, which have come under intense scrutiny and criticism in recent years, allow the police to seize property “suspected” of being connected to criminal activity without having to prove the owner of the property is guilty of a criminal offense.
Lisa Leonard, the owner of the $201,000, had asked the U.S. Supreme Court to compel Texas to return her money, given that she was innocent of any crime. In a written opinion that denounced the profit incentives that drive asset forfeiture schemes, Justice Clarence Thomas concluded, “This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses.”
“Relying on the topsy-turvy legal theory that one’s property can not only be guilty of a crime but is guilty until proven innocent, government agencies have eagerly cashed in on asset forfeiture as a revenue scheme under the pretext of the War on Drugs,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Yet if the government can arbitrarily freeze, seize or lay claim to your property (money, land or possessions) under government asset forfeiture schemes, you have no true rights. The government’s practice of policing for profit must stop.”
On April 1, 2013, James Leonard was driving with a companion, Nicosa Kane, on U.S. Highway 59 in Texas when the vehicle was stopped by a state police officer for allegedly speeding and following another vehicle too closely. A subsequent search of the vehicle disclosed a safe in the trunk, which Leonard explained belonged to his mother, Lisa Leonard, and contained cash. Kane provided a conflicting account about the contents of the safe. When the police officer contacted Lisa Leonard, she confirmed that the safe’s contents belonged to her, that the contents constituted personal business, and that she would not consent to allowing the officer to open the safe. After police secured a search warrant, the safe was opened and found to contain $201,000 and a bill of sale for a home in Pennsylvania.
Neither the Leonards nor Kane were found to be in possession of illegal drugs. However, the state initiated civil forfeiture proceedings against the $201,100 on the ground that it was substantially connected to criminal activity because Highway 59 is reputed to be a drug corridor. At trial, Lisa Leonard testified that the money was being sent to Texas so that she could use it to purchase a home for her son and Kane. Both the trial and appeals courts affirmed the authority of state officials to seize and keep Leonard’s funds under the state’s asset forfeiture law, basing their ruling on wholly circumstantial evidence and the reputation of Highway 59.
In criticizing abusive asset forfeiture schemes, Supreme Court Justice Thomas noted, “These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”
The Rutherford Institute has granted this website permission to reprint selected articles. The view expressed in this article are those of the Rutherford Institute and do not necessarily reflect those of APS Radio News.