Fifth Circuit: Recording Police Officers Is a Clearly Established Right

By Ken Wallentine

Turner v. Driver, 2017 WL 650186 (5th Cir. 2017)

Turner was video recording a police station. Two officers drove up and approached him. The officers asked for Turner’s identification. Turner asked whether he was being detained. When an officer replied affirmatively, Turner asked what crime supported the detention. He refused to produce identification.

The officers suddenly grabbed Turner, took his camera and handcuffed him. They told Turner, “This is what happens when you don’t ID yourself.” Turner asked to see a supervisor. The officers persisted in asking for identification. They placed Turner in the back of a patrol car and “left him there to sweat for a while with the windows rolled up.”

A lieutenant arrived and spoke with Turner. When the lieutenant asked for Turner’s identification, Turner told him that he did not have to provide it because he had not been lawfully arrested. The lieutenant told Turner he was correct and ordered that Turner be released and his camera returned to him.

Turner sued, alleging that his First and Fourth Amendment rights had been violated. The trial court granted qualified immunity to the officers. Qualified immunity protects an officer from suit when the alleged wrong did not violate “clearly established law.” Before a court can say that the law is clearly established, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Recently, in White v. Pauly (137 S.Ct. 548 (2017)), the U.S. Supreme Court emphasized that “‘clearly established law’ should not be defined ‘at a high level of generality.’”

The appellate court upheld the grant of qualified immunity applied to the First Amendment claim. Every circuit court of appeals to consider the issue has held that a First Amendment right exists to record the public activities of officers. However, not every circuit has held that the right is clearly established. The Fifth Circuit had not yet ruled on the issue at the time that Turner was arrested.

Lexipol’s best practice policy recognizes the general right to record officers performing their duties, with limited exceptions, and advises officers to hold off on taking enforcement action until a supervisor can arrive at the scene. The policy also suggests that officers give specific direction to the individual on what he or she can do to be compliant with public safety needs. For example, rather than seizing a camera or commanding the person to leave the area, likely creating a Fourth Amendment seizure issue, consider asking the person to move to the sidewalk across the street or some other location where the person can still see and record police activity, but not directly interfere with the officers’ duties.

The court held that officers are now on notice, at least in the Fifth Circuit, that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” One judge dissented, distinguishing between the right to film officers and Turner’s actions—recording a police facility, not officers entering or leaving the facility.

Nonetheless, the two officers were not entitled to qualified immunity on Fourth Amendment claims of an illegal arrest. The court had no trouble ruling that Turner had been subjected to a de facto arrest without probable cause to believe that he had committed a crime. Thus, the lawsuit for an illegal arrest and detention goes back to the trial court and moves forward.

Lexipol’s Law Enforcement Policy Manual and Daily Training Bulletin Service provides policy updates based on changing laws and court rulings, so you can rest easy knowing your policy reflects the latest case law. Contact us today to find out more.

Lexipol Law Enforcement

CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.

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