Photography and the First Amendment: Legal Cases Photographers Should Know

by David Walker

As a form of expression, photography is protected in the U.S. by the First Amendment to the Constitution. But photographers are often forced to defend their right to take pictures (and record video) in public places. That has been especially true since the 9/11 terrorist attacks and the passage of the Patriot Act. As we report elsewhere this month, police in many jurisdictions treat photography as a suspicious activity. And police have interfered with photographers not only for photographing buildings and infrastructure, but for recording police activity.

A number of photographers and citizens have fought back. Here are some of the stories reported in PDN about the unlawful detention of photographers, and the court rulings, settlements, and administrative decrees that have re-affirmed their First Amendment rights to photograph in public. Articles in the PDN archive are available to all PDN subscribers; log in is required.

Department of Justice Warns Police Against Violating Photographers' Rights

The Civil Rights Division of the US Department of Justice issued a bluntly worded letter in 2012, putting the Baltimore Police Department on notice about interfering with photography.

"Private individuals have a First Amendment right to record police officers in the public discharge of their duties," the DOJ tells the police. "[O]fficers violate individuals’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process."

The letter provides a detailed blueprint for re-writing police policies to protect the rights of journalists or citizens recording police activities. It amounts to a powerful tool for photographers (or citizens) anywhere in the country who need to protect or assert their rights to record police activity.

PDN Video: A Photographer's Guide to the First Amendment and Dealing with Police Intimidation

Thought news photographers have been subject to police intimidation and arrest, federal law protects photography and photographers, as Mickey Osterreicher, general counsel to the National Press Photographers Association, explains in this PDN video. The challenge for photographers is knowing how to assert their rights in tense situations, without getting arrested. Osterreicher offers practical tips for staying out of trouble while getting the pictures you need. And for photographers unfortunate enough to get arrested, he offers tips for getting legal help.

Baltimore to Pay $250K for Videos Deleted by Police: A Vindication for Photographers' Rights

The City of Baltimore and its police department agreed to pay $250,000 in April, 2014 to settle a claim of unlawful seizure and destruction of cell phone videos that belonged to a citizen who allegedly recorded police officers arresting and beating another person. As part of the settlement, the Baltimore Police Department (BPD) agreed to adopt a comprehensive written policy intended to protect the rights of citizens to photograph and record police activity.

Christopher Sharp was stopped by Baltimore police officers in 2010 for using his cell phone to record the arrest and beating of a female acquaintance at the Preakness horse race. According to Sharp, police seized his cell phone, and erased the recordings.

As part of the settlement with Sharp, BPD agreed that locations where citizens are free to record police include parks, sidewalks, streets, “locations of public protest,” and any other location–public or private–where a person has a legal right to be present.

Suffolk County Pays $200,000 to Settle News Photographer's Unlawful Arrest Claim

Suffolk County, New York  agreed in June 2014 to pay $200,000 to settle civil rights claims of a freelance news photographer who was unlawfully arrested in 2011 for recording police activity on a public street.

Philip Datz, a freelancer for local TV news broadcasts, was shooting the scene of an arrest of a criminal suspect in Bohemia, New York when a county police sergeant repeatedly ordered him to “go away.” Datz asked where he should stand to continue taping, but the police sergeant said “no place” and threatened to jail Datz if he didn’t leave the scene.

Datz moved down the street and continued recording, and was subsequently arrested. Datz had recorded the moments leading up to his arrest, during which a police officer confronted him and told him he was prohibited from filming the scene, even from a distance. The recording helped Datz win the settlement.

In addition to compensating Datz, Suffolk County agreed to institute an ongoing training program for its police officers to safeguard “the constitutional right of the public and press to observe, photograph and record police activity in locations open to the public,” according to court papers.

Police Intimidation Watch: Boston to Pay $170K for Wrongful Arrest of Videographer

The City of Boston agreed in March 2012 to pay $170,000 to settle a civil lawsuit for the wrongful arrest of a man for videotaping police as they arrested another man on the Boston Common in 2007.

The settlement was precipitated by a federal court ruling that the First Amendment protects the right to record police carrying out their duties in a public place. That ruling, issued in August 2011 by the US Court of Appeals in Boston, is binding only in New England (excluding Connecticut) and Puerto Rico, where the court has jurisdiction. (Glik v. Cunniffe 655 F.3d 78 (2011))

After the charges were dismissed, plaintiff Simon Glik sued the City of Boston on the grounds that Boston police had violated his civil rights. In addition to finding that Glik’s First Amendment rights had been violated, the US Court of Appeals ruled that his wrongful arrest had been a violation of his Fourth Amendment rights.

Police Intimidation Watch: University of California to Pay Photog $162,500 for Wrongful Arrest

Photographer David Morse received a $162,500 settlement in 2012 from the University of California for his wrongful arrest by UC Berkeley police. The university police department agreed to increase officers' media rights training as part of the settlement.

Morse was arrested in 2009 while covering a protest at the home of the University of California chancellor. Police charged Morse and several others with rioting, arson and vandalism. They also seized Morse's camera, obtained a search warrant to access his image, and published several of them to get public help identifying people in the photos.

Prosecutors declined to pursue the charges against Morse, who then sued the University of California in federal court after UC Berkeley police refused to compensate him for violation of his rights.

NH Town Pays $57K to Settle First Amendment Claim in Traffic Stop Video Case

The town of Weare, New Hampshire, agreed in June, 2014 to pay $57,000 to settle a federal lawsuit filed by a citizen who was arrested in 2010 after attempting to videotape a traffic stop. The settlement came after a federal appeals court in Boston affirmed the constitutional rights of citizens to record police during traffic stops, subject to some “reasonable” restrictions.

Plaintiff Carla Gericke claimed in her lawsuit that her First Amendment rights were violated because police charged her with federal wiretapping violations in retaliation for recording them during the traffic stop. Police asked the court to dismiss her claim on the grounds of qualified immunity, arguing police shouldn't be held liable for violating Gericke's right because there was no clearly established right to film a traffic stop at the time of her arrest.

A federal appeals court in Boston eventually ruled against the police, citing its own 2011 ruling in the case of Simon Glik v. Cunniffe, holding that “the Constitution protects the right of individuals to videotape police officers performing their duties in public.”

Photographing Police in Texas is Legal, Too

A federal court judge in Texas has rejected an argument that the right to photograph or videotape police officers “is not recognized as a constitutional right,” clearing the way for a citizen’s civil rights claim against the City of Austin, its police chief, and various Austin police officers.

“The First Amendment protects the right to videotape police officers in the performance of their official duties, subject to reasonable time, place and manner restrictions,” U.S. Magistrate Judge Mark Lane wrote in a decision handed down in June, 2014.


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