The U.S. Court of Appeals Court for the Fifth Circuit has ruled in a 2-1 decision that the public has the First Amendment right to record activities of law enforcement because it ensures cops “are not abusing their power.”
The majority ruling came in response to the court’s consideration of the facts in Turner v. Driver, a lawsuit filed by PINAC video-correspondent and reporter Phillip Turner following his lengthy detainment by two Fort Worth cops on September 2015 after he refused to provide them with identification while attempting to record the Fort Worth police station across the street.
While recording the station, two Fort Worth officers named Grinalds and Dyess approached Turner, asking for identification.
“How’s it going, man? Got your ID with you?”
In the video, seen below, Turner, who operates the YouTube channel The Battousai, asks the officers if he’s being detained.
Officer Grinalds affirmed Turner was being detained for an investigation and began down the rabbit hole using alarmist rhetoric saying he had the “right” and “authority” to know who was “walking around our facilities.”
Turner chose to flex his rights, refusing to provide identification or state his name.
Instead, he inquired, “what happens if I don’t identify myself?”
“We’ll cross that bridge when we get to it,” officer Grinalds says, continuing to repeat requests for Turner to identify.
Turner continues denying Grinalds’ requests.
Then, without warning, Grinalds suddenly handcuffs Turner and seizes his camera.
“This is what happens when you don’t identify yourself,” he spited Turner, threatening to fingerprint him in order to learn his identity before leaving him in the back of the patrol car to “sweat for a while with the windows rolled up.”
Turner bangs on the door, saying no air was reaching the back seat.
A supervisor, Lieutenant Driver, arrived and approached Grinalds and Dyess who “seemingly ignored Mr. Turner” as he “sweat” inside the patrol car with no air.
The three officers then rolled down the windows to the patrol car, found Turner lying down in the back seat and asked him what he was doing.
Turner explained again he was taking pictures from the sidewalk across the street.
Lt. Driver repeated the request for Turner’s identification.
Turner refused once again saying he chose not to provide the officers with identification because he hadn’t committed a crime and wasn’t lawfully under arrest.
“You’re right,” says Lt. Driver before walking away to talk to Grinalds and Dyess.
Driver returns to talk to Turner.
“You guys need to let me go because I haven’t done anything wrong,” Turner tells Driver.
Driver walks away again, makes a phone call and talks again with Grinalds and Dyess.
The three officers returned to the patrol car, lecturing Turner with more alarmist cop rhetoric before finally releasing him.
In October 2015, Turner named Driver, Grinalds and Dyess as defendants in a civil rights lawsuit, suing them in their individual capacities, alleging the trio violated his First, Fourth and Fourteenth Amendment rights.
However, the trial court dismissed the case granting the officers qualified immunity from being sued because Turner failed to show how his First Amendment right to record police was clearly established.
Upon appeal, the Fifth Circuit concurred with the trial court’s ruling because the right to record the police hadn’t been ruled on by the Fifth Circuit or the U.S. Supreme Court, but ultimately concluded the First Amendment right to record police does exist, ruling that for future cases, the court would hold citizens do have that right with time, manner and place restrictions.
“Four other circuits have made that determination and no circuit has ruled otherwise,” Senior Judge Jacques Wiener wrote.
“Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy,” Wiener wrote in the February 16 opinion. “Filming the police also frequently helps officers: for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.”
Upholding the trial court’s First Amendment rulings, the Fifth Circuit ruled the trial court judge erred by dismissing the Grinalds’ and Dyess’ qualified immunity claims for detaining Turner without having probable cause a crime had occurred.
So the appeals court ruled while Grinalds and Dyess were immune to Turner’s First Amendment claims because the right was not clearly established at the time he was detained.
But from February 18 forward, the Fifth Circuit concludes “that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.”
“The officers’ handcuffing Turner and placing him in the patrol car, as alleged in the amended complaint, were not reasonable under the circumstances,” the court ruled.
For more analysis of the decision, read the article on Techdirt.