It’s been ten days since since a federal judge ruled that photography is no longer protected by the First Amendment and cops are already using that decision to intimidate citizens from recording them in public.
However, the cop in this particular video works in California, almost 3,000 miles from Pennsylvania, which was where Judge Mark A. Kearney made his controversial and questionable – and frankly, clueless – ruling.
As a federal judge for the United States District Court for the Eastern District of Pennsylvania, Kearney presides in the Third Circuit Court of Appeals, which includes Pennsylvania, New Jersey, Delaware and the Virgin Islands.
And that means his ruling carries no weight in California, which is part of the Ninth Circuit, where courts have established there is a First Amendment right to “film matters of public interest.”
Besides, the police accountability organization Copwatch was founded in Berkeley in 1990, so it’s been long accepted that citizens have the right to record police in public in California.
But none of that mattered for this San Bernardino County sheriff’s deputy out of Victorville who informed a man recording him that there is “federal case law, as of this week, so you may want to reconsider your actions.”
The man recording continued to record, citing his Constitutional right to do so, and the cop didn’t push the matter any further.
Perhaps because the man then expressed himself verbally, which under Kearney’s decision, is what needs to be done in order for recording police to be protected by the First Amendment.
In Kearney’s view, keeping your mouth shut while recording, which is Rule #2 in our Ten Rules for Recording Cops, is not protected by the First Amendment.
But it goes to show you just how quick police are to use a court decision to keep people from recording when it took years for cops, even in Massachusetts, to acknowledge the 2011 Glik vs Cunniffe decision out of Boston that firmly established a citizen’s right to record police in public.
According to the Digital Media Law Project, the right to record police has been established in four circuits.
First Circuit (with jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island): see Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (“[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (police lacked authority to prohibit citizen from recording commissioners in town hall “because [the citizen’s] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights[.]”).
Seventh Circuit (with jurisdiction over Illinois, Indiana, and Wisconsin): see ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”).
Ninth Circuit (with jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington): see Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995) (assuming a First Amendment right to record the police); see also Adkins v. Limtiaco, _ Fed. App’x _, No. 11-17543, 2013 WL 4046720 (9th Cir. Aug. 12, 2013) (recognizing First Amendment right to photograph police, citing Fordyce).
Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia): see Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”).
So that leaves seven circuits where the issue has not been addressed at the appeal level, but thanks to Judge Kearney, it will now be addressed in the Third Circuit because the ACLU has vowed to appeal that decision.
And we are confident the Third Circuit will rule with the other circuits, not that this particular deputy will ever acknowledge it.
UPDATE: Just added a new video from the same guys from that same night where cops yell at them that they can’t see their hands, acting as if they were in fear for their lives. Then they end up in a conversation who tells them that some cops don’t like to be recording.