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Do You Have A First Amendment Right To Video Record Public Officials In Action?

Mocek v. Albuquerque Police
2013 U.S. District Court

LEXIS 10676

In a forty-two page decision, the District Court, Judge James O. Browning presiding, granted the motion of defendants to dismiss the plaintiff's complaint for damages based on theories of civil rights violations.


On November 15, 2009, Mocek stood in a line to pass through TSA security at the airport. In the course of this activity, Mocek began using a camcorder to video what his interaction with the TSA agents. TSA agent Breedon told Mocek to stop filing. When Mocek refused, TSA agent Breedon contacted Albuquerque city police and officer Romero responded. Romero instructed Mocek to stop filing. Another officer, one Dilley, demanded that Mocek produce identification. Mocek refused, and Dilley told him he would be arrested for (1) disturbing the peace and (2) "concealing his identity." During his arrest, the police deleted the video footage in the camera, but later Mocek was able to restore it and the video was presented at his trial. Mocek was charged with four offensives: disorderly conduct, concealing identity, refusing to obey an officer, and criminal trespass. On January 21, 2011, a jury of Mocek's peers acquitted him of the charges. Mocek then sued the defendants on various theories that they had violated his civil rights.

The Court's Reasoning

"Neither the 10th Circuit nor the Supreme Court has directly addressed a right—constitutional or otherwise—to record police or law enforcement activity in public. Other circuits that have found a First Amendment right to video tape police conduct qualify the right as `subject to reasonable time, manner, and place restrictions.' (e.g., Smith v. Cumming 212 F.3d at 1333.) Even the First Circuit, which found that the right was `unambiguously' established by basic First Amendment principles, noted that the right is not without limitations. The First Circuit stated that the gathering of information `about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.' (Glik v. Cunniffe, 655 F.3d at p. 83, quoting Mills v. Alabama  (1966) 384 U.S. 214, 218.)  Applying these principles, the First Circuit found that a plaintiff had a First Amendment right to record police officers in the Boston Common, a public park. The plaintiff had filmed the officers from a `comfortable remove, and neither spoke nor molested them in any way, except indirectly responding to the officers when they addressed him, which amounted to a peaceful recording of an arrest in a public space that does not interfere with the officer's performance of their duties, and thus not subject to limitation.'"

Note: There are many Youtube videos which show citizens video-taping police officers and the officers responding aggressively. In some of these videos the citizen makes "fighting words" type statements which triggers the aggression, but in others the citizen is simply recording from a distance what the officers are doing in public. One woman is standing on her property, filming officers engaged in a stop of a motorist on the street. The officers arrest her when she refused to stop filming. In another, a citizen is standing in his garage filming officers rumaging through a motorist's vehicle on the street and the officers, despite his demand they stay off his property, come upon the property and get in his face. However, the citizen had called out in a loud voice, "Nazi!"


"The 11th Circuit and the 9th Circuit have also recognized a right to video tape police activity in public. (See 212 F. 3d at 1333. and Fordyce v. Seattle 55 F.3d at 436 (9th Cir. 1996)"


Was Mocek Video-Taping In A Public Space? 



"The Supreme Court determined [citing case] that airport terminals are non public spaces and subject to reasonable time, place and manner restrictions. The Court found that `tradition of airport activity does not demonstrate that airports have historically been made available for speech activity.' (For example, the Court ruled that Hare Krishna activity can be restricted so that it does not disrupt passenger movement.)"

See also, Askins v. U.S. Depart. Of Homeland Security 2013 U.S. Dist. LEXIS 53208

"There is no doubt that citizens enjoy a First Amendment right to photograph police officers performing their responsibilities in public spaces, as evidenced by the cases cited by plaintiff and the letter from the Department of Justice is in accordance with the line of cases, but the freedom is limited to situations where police officers are performing their duties in a public place."

Note: Homeland security officers at ports of entry, however, are not police officers performing duties in public space, but on government property; the right to photograph the enterior of government property apparently has not been recognized by the courts.



The lady standing on her lawn, filming police activity in the public street, was well within her constitiutional First Amendment right, and the officers were subject to civil liability for instigating her false arrest. The man filming in his garage was equally well within his constitutional right, but when he yelled "Nazi!" he invited the officers to arrest him on a charge of "disturbing the peace"—a charge if tried to a jury of his peers he might or might not have won.

The best method of proceeding, is to film and continue to film despite threats from police officers, but to keep your mouth shut; if you must speak, keep your language within the bounds of objective decency.

Query: How to respond in such circumstances to the officer's demand that you produce "your papers?" Does an officer, regardless of circumstances, have the legal right to demand you produce ID? Assuming the answer is "No," why resist the demand? What possible difference does it make to you? Your objective is to record what the officer is doing and while you produce ID you are continuing to record.


Do You Have A Fourth Amendment Right

To Sue Police Who Arrest You For Video-taping Their Conduct? 

Kelly v. Borough of Carlisle

(2010) 622 F.3d 248


On May 27, 2007, Kelly was riding around Carlisle, PA, in a truck driven by a friend. The driver was pulled over by Officer Rogers for speeding. During the stop, Kelly began recording the officer's conduct with a camcorder. Toward the end of the encounter, Officer Rogers informed Kelly and the driver that he had been recording the entire event. (It is routine conduct for officers to video tape from a car camera and audio record from the microphone attached in plain view to their uniform.) At this point Rogers realized Kelly was filming him with the camcorder held in his lap in plain view. Rogers contacted a city attorney and, claiming reliance of the "advice" the attorney gave him, arrested Kelly for "violating the Pennsylvania Wiretapping and Electronic Surveillance Control Act." In the course of the arrest Rogers seized Kelly's camcorder. After the charge was dropped, Kelly sued Rogers for damages. The District Court threw Kelly's complaint out of court on the ground that Rogers "reasonably relied on advice of counsel." The Court of Appeals reversed.


"Kelly claims Rogers violated his Fourth Amendment rights by arresting him without probable cause. A police officer is not entitled to immunity if a reasonably trained officer in his situation would have known that his decision to arrest was without probable cause. We reject the notion that a police officer's decision to contact a prosecutor for legal advice is per se objectively reasonable. It is one factor to consider in assessing the reasonableness of the officer's action but not enough standing alone to exeronate him for a wrong action."

Before turning to the District Court's legal analysis, we turn to factual issues. First, the court found that Kelly recorded the officer without the officer's premission. The resolution of this issue turns on whether, in fact, the camcorder was in plain view; if it was, it was up to the officer to demand that the recording stop.

"At the time of the arrest, Pennsylvania law provided that "a person is guilty of a felony if he intentionally intercepts any oral communication; an `oral communication' is defined to mean `any communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.'"

"In 1989, the Pennsylvania Supreme Court held that secretly recording a police officer in the performance of his duties did not violate the Wiretape Act. (Commonwealth v. Henlen 564 A.2d 905) In light of the precedent, at the time of Kelly's arrest, it was clearly established law that an expectation of privacy was a prerequiste for a Wiretap Act violation. It was also clearly established that officers do not have an expectation of privacy when recording conversations with suspects."

Note: There is yet no clear rule shown by case law that videotaping a police officer during a traffic stop is a First Amendment right. Therefore, when you sue the officer for violating your right, the officer has the defense of qualified immunity; i.e., he had not had "fair notice" his seizing your camera or arresting you was unlawful.

An Intelligent Recognition of the Citizen's
Constitutional Right to Record the Conduct
Of Police Officers in Public

What Officers Say Does Not, Apparantly, Conform To What
They Frequently Do.



Joe Ryan