by Tim Brown
For a while now, especially since the arrival of YouTube ordinary citizens have been attempting to make police accountable for their actions by videoing them. Many times police officers do not have a problem being videoed. However the State of Illinois does not like their officers being videoed and sought to impose a penalty of up to 15 years in prison tied to a 50-year-old anti-eavesdropping law. On Monday that was upheld a lower court’s ruling that the 50-year-old law was unconstitutional and violated the First Amendment rights of individuals who record police officers in public.
The U.S. Supreme Court on Monday delivered another blow to a 50-year-old anti-eavesdropping law in Illinois, choosing to let stand a lower court finding that key parts of the hotly debated law run counter to constitutional protections of free speech.
In that critical lower-court ruling in May, the 7th U.S. Circuit Court of Appeals found that the law – one of the toughest of its kind in the country – violates the First Amendment when used against those who record police officers doing their jobs in public.
To bring this into perspective it was not questionable whether or not it was ok for citizens to video police officers actions when Rodney King was attacked, was it? Of course not. Everyone knew it was perfectly legal, even important to the legal proceedings.
In commemoration of the 20th anniversary of the Rodney King incident, Joel Rubin wrote in the Los Angeles Times, “Police now work in a YouTube world in which cellphones double as cameras, news helicopters transmit close-up footage of unfolding police pursuits, and surveillance cameras capture arrests or shootings. Police officials are increasingly recording their officers. Compared to the cops who beat King, officers these days hit the streets with a new reality ingrained in their minds: Someone is always watching.”
The King incident brought new awareness to how police officers are to conduct themselves. In fact LAPD Sgt. Heather Fungaroli told new recruits, “I don’t care if you’re in a bathroom taking care of your personal business…whatever you do, assume it will be caught on video.”
However, it wasn’t until 2007 that recording police officers became an issue. On the evening of October 1, Simon Glik was walking by the Boston Common we he witnessed three police officers attempting to arrest a man using what he thought was excessive force. As soon as he heard a bystander yelling at the police that they were hurting the man and demanding that they stop, Glik pulled out his cell phone and began recording.
As soon as the man was subdued, one of the officers turned to Glik and told him that he thought he had taken enough pictures. Gilk repolied that he had videoed the event and that he witnessed the officer punch the man. It was then that the officer arrested Gilk, put him in handcuffs, and charged him with violating Massachusetts’ wiretap law, disturbing the peace, and aiding in the escape of a prisoner! Yes, you read those charges correctly.
Gilk attempted to handle the situation by filing an internal affairs complaint. This did nothing. So in February of 2010 Glik filed a civil rights action in the U.S. District Court for the District of Massachusetts. He claimed that his First and Fourth Amendment rights were violated by the officers. Naturally the three officers tried to quash the action, but the judge in the case threw out their request and ruled that Glik’s “First Amendment right publicly to record the activities of police officers on public business is established.”
Finally, nearly a year later, on August 16, 2011 the court decided in Glik’s favor. The 24-page decision read in part:
Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” This is particularly true of law enforcement officials who are granted substantial discretion that may be misused to deprive individuals of their liberties…
We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.
There was also the case of Christopher Sharp in May of 2010 and in that incident, which had a similar outcome to Glik’s except in the case of Sharp, the U.S. Department of Justice weighed in on the case by filing a statement of interest, which read:
This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative. The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.
Obviously lower level courts and even a Justice Department backing, in an Obama administration, concluded that there was nothing criminal about citizens videoing police officers. Officers are not above the law. Their role is to be servants of the citizens, not tyrannical thugs. It seems many police officers think they are somehow free to video a citizens every move with surveillance cameras in their cars, at their buildings and out in the open, but they do not want citizens recording them.
Recording of police officers violates no one’s rights. In ensures the privacy rights of both officers and citizens. It may be annoying, but that’s just tough. Many things about “free speech” can be annoying and even disagreeable, but that doesn’t mean that people who disagree with you are not allowed to speak.
The ruling from the U.S. Supreme Court blocking Illinois’ unconstitutional law and kicking it back to the lower court should be clear enough that this should never come up again, but it will. Liberals and tyrants will not rest until the freedoms of the people are thoroughly cast under foot and trampled upon. Therefore, we must be ever vigilant against them.
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