Mercer Law Review

Volume 71 Number 4 Eleventh Circuit Survey Article 13

6-2020

Cameras Down, Hands Up: How the Supreme Court Chilled the Development of the First Amendment Right to Record the Police

Christina Murray

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Recommended Citation Christina Murray, Comment, Cameras Down, Hands Up: How the Supreme Court Chilled the Development of the First Amendment Right to Record the Police, 71 Mercer L. Rev. 1125 (2020).

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) 5/20/2020) 8:34 AM ELETE 1125 D have outragesparked and fueled a OT tecting your other rights and in keeping NTRODUCTION N O I. I CP (D in which the courtrequired a plaintiff in a 1 ECORD , R Record the Police Record Finally, it will combine two that these to show topics 2 Amendment Right to to Right Amendment IGHT TO TO IGHT at 1723. 1723. at Cameras Down, Hands Up: Hands Down, Cameras the Development of the First the Development . Id. . Id. 2 How the Supreme Court Chilled Chilled Court the Supreme How Mercer University (B.B.A. 2016); Mercer University School of Law (J.D., 2020). 2020). (J.D., Law of University School (B.B.A.Mercer Mercer University 2016);

You mayYou not realize this, but Supreme Court of the United States the This Comment will track the development the of to right record the retaliatory arrest claim the police lacked prove that to plead and cause. probable [11] COMMENT R Member, Mercer Law Review (2018–2020). Special thanks to my parents, Dan and and (2018–2020).parents, Dan ReviewLaw to my SpecialMember, Mercer thanks Professor to and Amendment; First the of supporter outspoken an Tyler, to Sabine; the had have not I would parents, my Without Connoisseur. a Constitutional Fleissner, without and it; survived have not would I Tyler, without school; law to go to opportunity today. I am as successful be as not I would Fleissner, Professor 1. (2019). 1715 Nieves Ct. 139 S. v. Bartlett, when the Court prioritized policing above protesting, and probable protesting, above policing Court prioritized when the above constitutionalrights, itcause thrust an icepick in the developmentof to record; the right and that instead,to protect this law enforcement accountable. Because of the right to record the police, of the right to Because record the police, accountable. enforcement law from brutality of police footage we have documented to Missouri recordings Louisiana. These has possibly jeopardized one of your First Amendment jeopardized one of your First rights: the right possibly has may mean littleto record right to you now, it this the police. While could aserve means as of pro around policing, race,conversation and our country's values. police through the circuit to courts, the existenceinclude of an "artificial split."circuit Then, it will address the recent Supreme Court decision, Nieves v. Bartlett 42275-mcr_71-4 Sheet No. 112 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 112 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 112 Side B 05/29/2020 07:30:56 United States v. a decision handed 6 , 139 S. Ct. at 1735. , at 1735. Ct. 139 S. , see also PLIT [Vol. 71 71 [Vol. S Nieves HE 4 3 —T ) 5/20/2020) 8:34 AM f's other claims detail that Plaintiff James James Plaintiff detail that claims f's other By synthesizing numerous cases 7 OURTS ELETE C D Framework. OT N O IRCUIT Smith v. City of Cumming C CP (D HE In MERCER LAW REVIEW LAW MERCER 5 T Mt. Healthy ECORD R II. IGHT TO TO IGHT , 212 F.3d 1333. at , 212 The only caveat the court only caveat the on The rule, which many placed this Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000). Cir. (11th F.3d 1332 of 212 Cumming, v. City Smith (synthesizing Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (finding 1994) (finding F.3d 117, 120 (11th Cir. Blackston v. Alabama, 30 (synthesizing Smith v. United States, 51 Fed. Cl. 36 (2001). As this incident occurred in the the occurred incident in Fed. 36 (2001). As this Cl. United States, 51 v. Smith 8 See . See . Smith . Id. 5 7 8 Of the nation's thirteen federal circuit appellate courts, only six have only six appellate courts, thirteen federal circuit Of the nation's The first of these courts was the United States Court of Appeals for for of Appeals Court States United the was courts of these first The down in the 2000, year the court hesitate did not even when it announced that the existed. right from its own circuit and own circuit beyond, the court First that the held from its Amendment protects the right to gather information about public information relates tothat of public especially a matter when officials, interest. prove 274 (1977). burden to In this burden-shifting has the framework,plaintiff first, the on is 3.onus the then arrest, the of cause but-for the v. of Bd. Educ. City was Healthy Doyle, Mt. from adapted framework This is act or speech protected the that U.S. 429 the governmentdefendant prove to the arrest would havebeen made without the probableof cause. protected showing behavior, a including 1126 it and others, right should adopted have framework a practicedin circuits, the several [11] COMMENT R order. that in Circuits, Ninth and Fifth, Third, Seventh, First, Eleventh, the 4. for Appeals of Courts States United The A. Circuits with a Recognized Right with a Recognized Circuits A. unequivocally recognizedcitizen'sa First Amendment right to record the policepublic duties. as conduct their they the Eleventh Circuit. Eleventh the plaintif the on based opinions Subsequent case. 6. of the many facts contain 212 F.3dopinion does 1332 (11th Cir. This not 2000). First the to related as it claim, 1983 § his first-degree arson,of and convicted was Smith Amendment, stemmed officer frompreventing an from him video recording the arson arrest. early 1990s, I assume it is safe to say that this case did not deal with cell phone phone cell with deal not did case this that say safe to is it assume I early 1990s, will. cases further the like recordings, that plaintiffs' interest in filming public meetings is protected by the First Amendment); Amendment); First the by protected is meetings public in filming interest that plaintiffs' F.3dof 436,Fordyce Seattle, 55 v. 439 (9th Cir. 1995) (recognizing a First City No. Boulter, v. Iacobucci interest); public of matters film to right Amendment 26, 1997) (unpublished (D. Mar. *18 7010, at Mass, LEXIS 94-10531-PBS,U.S. Dist. 1997 First the under right protected a has reporter independent that an (finding opinion) meetings); public videotape to law state and Amendment Hastings, 695 F.2d 1278, 1281 (11th Cir. 1983) (finding that the press generally has no no has generally press the 1983) (finding that Cir. (11th 1281 F.2d 1278, 695 Hastings, Warner v. Nixon (citing public) general of the that to superior information right to Commc'ns,U.S.Inc., (1978); 435 589, Lambert 609 Polk v. 723 F. Cty., Supp. 128, 133 rights First Amendment have . who . . organizations news just not 1989) ("It is (S.D. Iowa Supp. F. 765 Clio, of City v. Thompson ."); . . . events of videotapes display and make to council's member'son city to that (finding attempt ban 1066, Ala. 1070-71 (M.D. 1991) 42275-mcr_71-4 Sheet No. 112 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 112 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 113 Side A 05/29/2020 07:30:56 10 13 Williamson Williamson cf. 1127 1127 officers had not When determining determining When 14 15 ail on their 42 U.S.C. § 1983 ail on their 42 U.S.C. § the defendant ) 5/20/2020) 8:34 AM 12 9 ELETE D OT N O CP (D ECORD 42 U.S.C.§Pape, 1983; MonroeU.S. v. 365 (1961). 167, 171 R See RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT IGHT TO TO IGHT , 212 F.3d 1333. at , 212 , 212 F.3d 1333. at , 212 Saucier v. Katz, 533 U.S. 194 (2001) (overruled by Pearson v. Callahan, 555 v. 555 Pearson Callahan, by (2001) (overruled U.S.Katz, 194 v. 533 Saucier (citing Nail v. Cmty. Action Agency of Calhoun Cty., 805 F.2d 1500, 1501 (11th 1500, 1501 (11th of 805 F.2d Calhoun Cty., Action Agency Nail Cmty. v. (citing Instead, the courtheld that 11 . Smith . Id. . Smith . See 9 11 12 15 The "clearly established" doctrine is, in essence, wherecircuit the Of note is the fact that the Eleventh Circuit so readily recognized the While these plaintiffs lost because the court found their right was not not was right court found their the lost because plaintiffs these While First of the issue the discuss that cases 1983 (2019). Most 42 U.S.C.§ 10. federal This 1983 claim. § a through courts the to come record to right Amendment out laid rights the protect to passed was Act," Klan Klux the "Ku called originally statute, who, person "[e]very that states act The Amendment. Fourteenth adopted newly the in United the of citizen any subjected, be to causes or subjects, . . . [law] any of the by color secured under immunities or privileges, rights, any of deprivation the . to . . States 42 ." . . . at law action in an injured party the liable to be shall laws, and Constitution rights person fundamental whose for any action as a tort it acts essence, 1983. In U.S.C.§ violated. been have v. Mills, 65 F.3d 155 (11th Cir. 1995) (reversing district court's district of (reversing 1995) 65 F.3dv. qualified 155 (11th Cir. grant Mills, in participant a arrested of and film the seized who officer enforcement law a to immunity a demonstration for photographing undercoverofficers)). Cir. 1986)) (holding that the Smiths failed to "prove that the conduct complained of of failed to conductCir. the Smiths complained that the 1986)) (holding that "prove the of laws or constitution the by secured immunity or privilege of 'a right, them deprived § required under 1983). as States," United personal exercise to official the that require those are acts 13. Discretionary set a following require merely which acts ministerial to opposed as thought, or discretion standard. or rule irresponsibly" power exercise they when accountable "officials holding 14. balance between the principleof is this Fitzgerald,800,TheU.S. basis 806 (1982). Harlow v. 457 v. Pearson litigation. distracting or harassing from officials protect to need and the U.S.Callahan, 231 (2009). 555 223, U.S. 223, maintaining the two prongs but allowing them to be decided in any order). be decided in any to them but allowing prongs two the maintaining U.S. 223, split lies. Just like cannot defendants be charged with a vague law, whether qualified immunity is appropriate, the court uses two prongs: two court uses the is appropriate, immunity qualified whether (2) whether the and (1) whether a constitutional right existed right was clearly established at the time of the violation. actually their right violated to record. taken during the exercise of their position. of their exercise the during taken claim. right with seemingly little deliberation, a feat, as we will see, that is not court simple although Yet, for other courts. this as recognized the that the plaintiffsright existed, did not prev record proceedings regulated conduct protected by the First Amendment); Amendment); First by the protected conduct regulated proceedings record 2020] 2020] later courtshave followed, is that the right is limited to reasonable time, place, restrictions.and manner [11] COMMENT R violated, many other plaintiffs have lost on the ground of qualified ground of qualified on the have lost plaintiffs other many violated, immunity. Qualified immunity is the principle that shields public from personalofficials liability stemming from actsdiscretionary 42275-mcr_71-4 Sheet No. 113 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 113 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 113 Side B 05/29/2020 07:30:56 23 The 19 , the plaintiff , which was cited Glik The First Circuit 24 [Vol. 71 71 [Vol. Smith First Circuit stated that cases d a § 1983 claim against the d a § and arrested for violationshim 18 ) 5/20/2020) 8:34 AM Much like As the court stated, the right of right court the the stated, As 21 22 ELETE D 20 OT N O enough that enough that would know.an officer Below, CP (D the United States United States the of AppealsCourt for the First 17 MERCER LAW REVIEW LAW MERCER , ECORD R IGHT TO TO IGHT 78. t , 655 F.3d at 79–80. a at 82. at at 80–81. 80–81. at at 83–84. 83–84. at at 84. at Many courts use this prong to discuss that while, yes, the right 16 Glik v. Cunniffe . Id. . Id. . Glik . Id. . Id. . Id. . Id. . Id. . Id. 17 19 20 21 22 23 24 In When determining whether the First Amendment right existed, the the importance illustrated.determination of the clearly is established exists, it was not apparent Additionally, the First Circuit placed the same time, place, and manner Circuit, did the Eleventh but, as here, on the issue the restrictions prevailed.plaintiff The court held that because Glik recorded the police country in the at a distanceoldest parks from away of the the from one well within rights he was to record,arrest, his and by deterring him rights. violated his from recording, the officers to the Massachusetts wiretap statute and two other state offenses. All offenses. state other and two wiretap statute Massachusetts the to charges were and Glik file dismissed, officers for violations of his First and Fourth First and his of Amendmentofficers for violations rights. access given to the press is equal to that provided to private citizens. 16. (1st Cir. 2011). F.3d 81 78, 655 Cunniffe, Glik v. 1128 violation civil rights under a liable be held cannot officers they unless warninghave fair that violatedtheir actions a particular constitutional right. [11] COMMENT R here, the First Circuit analogized a private citizen's right to record to that provided to news reporters. Circuit dealt with the issue of qualified immunity. In was walking he when in Commons, was police Boston saw several the officers arrest The plaintiff,a young man. Glik, and other bystanders so were using, officers the about worry the of force began to amount When the arrest. recording cell phone and began his Glik pulled out asked him, Glik confronted doing, they was what officers noticed audio recording, using whether he was United States Court of Appeals for the question and throughoutothers "answer that their circuit within the unambiguously in the affirmative." district court claim denied the defendants' of qualified immunity, for appealed. which the defendants the of violation in Glik put supposedly what is 18. recording audio of use The statutes. wiretap Massachusetts 42275-mcr_71-4 Sheet No. 113 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 113 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 114 Side A 05/29/2020 07:30:56 28 26 where it it where decided in in decided 25 , 27 , 1129 1129 Gericke v. BeginGericke 32 31 ) 5/20/2020) 8:34 AM record was clearly record was established. ELETE involved a woman and her friends driving in a a in driving friends her and woman a involved The district court, failing to recognize D 34 OT N ACLU of Illinois v. Alvarez of ACLU O Gericke Id. CP (D This statute in no way restrictedthe visual 29 ECORD R , ACLU wiretapping the statute the state's challenged RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT at 2–5. 2–5. at IGHT TO TO IGHT The ACLU challenged the law ACLU tolaw challenged The applied as it the their , 679 F.3d at 586. Under the statute, recording private citizens without without citizens private recording statute, 586. Under the at F.3d , 679 30 Id. Id. to show that to show the to right at 4–5. at Alvarez at 586. at at 586–88. at at 595. at Glik 33 . Id. . Id. . Alvarez . Id. . Id. . Id. . Id. . Id. 26 29 30 31 32 33 34 The Illinois ACLU'sThe Illinois police accountability program to record sought Next, the United States Court of Appeals for the Seventh Circuit Circuit Seventh the for Court of Appeals States United the Next, Concerned the potential with backlash, before initiated it the The wiretapping laws not only made it a felony to audio record police police officers as they performed their duties at expressive events. events. at expressive duties their performed as they officers police involving or demonstrations would events include protests These ACLU would then The groups. or other ACLU the members of either other through and media electronic online recordings these display would be recordings during these received the audio None of forms. thewith consent, officers' but the ACLU to only record intended speech audiblewhich was to a regular bystander. joined the discussion with which established a class one felony for any audio recordinglaw any audio of a classfor one felony which established officers. enforcement 2012. In 25. Cir. 2014). 1 (1st 753 F.3d 2020] 2020] affirmed later years ruling several in this [11] COMMENT R two-car caravan. An officer pulled over her friend's car and asked Gericke to leave. leave. to Gericke asked and car friend's her over pulled officer An caravan. two-car to (unbeknownst phone her up held and lot parking nearby a to over drove she Instead theofficer, it was not actually recording).The officers arrested Gericke for violations to her on succeeded later she and overturned, was arrest Her laws. wiretapping state's the claim.§ 1983 27. 2012). (7th Cir. 679 F.3d 583 28. 720 Ill. Comp. 5/14-1, Stat. 2, 4 (2019). program, the ACLU and a preliminary sought declaratory judgement Attorney, Anita to bar Cook County1983 the State under §injunction Alvarez, from prosecuting its members under state's the wiretapping laws. recording of officers, but as soon as audio was initiated, as was audio but was a felony soon recordingas officers, of committed. their consent only constituted a class four felony, and nothing in the statute prevented prevented statute the in nothing and felony, four class a constituted only consent their officers. of video silent recording a First Amendment right to audio record and seeing this statute as upcoming police accountability program. used used officers performing their duties, but outlawed recording performing their the but outlawed officers duties, of all audio during any oral communication. 42275-mcr_71-4 Sheet No. 114 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 114 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 114 Side B 05/29/2020 07:30:56 42 The 38 47 And third, 40 [Vol. 71 71 [Vol. The court emphasized the the court emphasized The 44 The circuit court vehemently court vehemently circuit The ) 5/20/2020) 8:34 AM 35 ELETE D 36 OT N O CP (D MERCER LAW REVIEW LAW MERCER For this, the circuit reversed court and remanded, ECORD R 46 The court held that while this The court while this a violationstatute held that was 41 43 IGHT TO TO IGHT Second, the court stated that First Amendment Freedom of Freedom Amendment First court that the Second, stated 39 By failing to recognize that the ACLU had a cognizable First at 608. 608. at at 586. at at 600–01. at at 595–96. at at 592. at at 601 n.10. 601 n.10. at at 595. at at 606. at at 597 (quoting Ariz. Free Enter. Club's Freedom Fund PAC v. Bennett, 131 S. S. 131 608. at Bennett, v. PAC Fund Freedom Club's Enter. Free Ariz. (quoting 597 at at 586. at The court held that, first, the First Amendment protects not 45 37 . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. 35 36 37 38 39 40 41 42 43 44 45 46 47 Given that the right was established, the circuit court then looked to The circuit court determinedThe circuit of the despite the conclusions that court likened the process of recording to painting that of or taking notes at events, activities which found protections in prior Seventh Circuit precedent. instructing district the court enter the to preliminary injunction. of First Amendment rights, it was even more so because it prevented prevented it Amendment because rights, was so even more of First it the ACLU from recording public officials. Amendment claim, the district court and State Attorney committed a injustice. flagrant "practically universal agreement of the First that a major purpose of governmental free discussion the protect to 'was Amendment affairs.'" whether the wiretap statute could survive First Amendment could survive scrutiny. statute wiretap the whether Speech includes the right to receive the speech of others. Because the the Because others. of speech the receive to right the includes Speech ACLU had hear, the others to in a way for speaking officers would be asjust much right to receive as that speech else. anyone The court determined that it could not, because by banning all end the failed to serve it private, not intended as even those recordings, goal of privacy. disagreed with the district the with disagreed court. 1130 constitutional, dismissed ACLU'sthe complaint for failure to state a cognizable First Amendment injury. [11] COMMENT R district court, there was, fact, in a First Amendment right to audio record. only direct speech, but the processes thatresults in that speech. the court highlighted that the First and Eleventh Circuits agree that the rightexists. Ct. (2011)). 2806, 2828 42275-mcr_71-4 Sheet No. 114 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 114 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 115 Side A 05/29/2020 07:30:56 Fields 56 54 The circuit The 51 Id. 1131 1131 Fields v. City of discussed that recordings not only only not recordings that discussed However, the court did not the court did not However, 52 PhillipTurner was taking ) 5/20/2020) 8:34 AM Turner Turner 49 , ELETE D charge Turner with and released him. and released charge Turner with OT N O CP (D ECORD R Turner v.Turner Driver that while not clearly established at the time, a First RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT 55 , IGHT TO TO IGHT , in The 848 F.3d court at 689. In 48 at 358. at at 683–84. at at 687. at and that it can help citizens and that policeand the force, itself. . Id. . Id. . Id. . Id. . Turner 53 50 56 50 51 52 54 The United States Courts of Appeals for the Third Circuit came to a The district court found that the First Amendment right to record Thereafter, it took five more took it another for circuitThereafter, court years to jump 55. (3d Cir. 2017). 862 F.3d 353 stop at qualified immunity in this case, it instead to recognizewent on the First Amendment right for court thewith future. The agreed that facts the and reiterated the courts mentioned of the above several of information, protects it gathering the that protects Amendment First film, Turner subsequently filed a § 1983 claim against officers andthe Turner subsequently the filed a § city. photographs of the Fort photographs Worth, policeTexas station from the sidewalk across his phonethe street. for with Two officers saw him and asked identification. heWhen placed to offer it, he refused was the back in of a turned conditioning rolled up and the air the windows car with patrol Lieutenant outside. waited officers the sun, Texas while hot off in the Driver arrived and spoke to andTurner officers. the He determined to anything they did not have Amendment right to record the police certainly existed. very similar conclusion that same year holding, in Philadelphia 48. Turner687–88F. 678, 3d Driver, 848 Cir. 2017). (5th v. 49. 848 F. 3d 678. 2020] 2020] [11] COMMENT R court held that due to a lack of precedent, either mandatory or mandatory either of precedent, a lack due to court held that whichpersuasive, could place the question beyond debate, the court could right. not find a clearly established 53. 688 (1959). U.S.N.Y., 360 of ofof State Univ. Regents 684, v. Pictures Corp. Kingsley Int'l was not clearlywas established, and the circuit court agreed. into the ring. Finally,into the in 2017 StatesCourt for the United of Appeals the Fifth Circuit held thatthe right to record was not clearly established at the time ofthe incident but preserved the right for future decisions. keep officers accountable to citizens but can also help the officers by corroborating the the corroborating by officers the help also can but citizens to accountable officers keep officer's story inorder exonerate to or him hercharged from wrongdoing. involved two separate instances involved two separate of citizens recording officers. First, they arrested a as Amanda Geraci was prevented police from recording nor arrested neither was She during an anti-fracking event. protestor 42275-mcr_71-4 Sheet No. 115 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 115 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 115 Side B 05/29/2020 07:30:56 The 63 The court 62 65 no longer have a a have no longer [Vol. 71 71 [Vol. Second, Richard Fields 57 The court held that despite 66 police departments, and that The district court refused to share their videos or photographs. photographs. or videos their share 59 llar so she could ) 5/20/2020) 8:34 AM had a policynot that explicitly said had a ll in gaps of areas where the officers officers in gaps where the of areas ll a party while hea party while walking home. was the First Amendment because their ELETE D OT N O Not only does bystander filming serve the only does bystander the filming Not serve 60 64 CP (D MERCER LAW REVIEW LAW MERCER 58 ECORD R The court instead held that the matter should not rest on court held that rest The matter instead not the should IGHT TO TO IGHT 61 at 356. at at 359. 359. at Neither Geraci nor Fields planned to to planned Fields nor Geraci Neither at 356–57. at at 358. at at 359–60. at at 360. at . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. 60 58 59 57 61 62 63 64 65 66 Although the Philadelphia Police The circuit court did not agree limitations with the placed by the Although the court recognized recording police was a vital right,Although the court recognizedwas recording police create a First Amendment protection when the act of recording officers officers of recording act the when protection Amendment a First create purpose. had no expressive to intrude a private citizen'son right to record the district court officers, granted summary judgement in findingtheir favor, that the plaintiffs' actions were not protected under expressive. sufficiently were not acts the expressive nature of the content, but on the information gathering information gathering of but on the nature the content, expressive the which the First purpose, Amendment also stands to protect. court detailed that bystander recordings of the police offer so much courtdetailed that bystander much offer so recordingsof the police more than a police-dashcam. It stated that bystander videos show the and fi from a new perspective scene court or are film The also where they did not footage. withholding than can even faster be disseminated recordings how these explained traditional media outlets. 1132 but cited, pushed was she against a pi [11] COMMENT R point fromvantage which to record the arrest. went on to highlight just why this protection is so important. happened upon police breaking up police breaking upon happened phone. officers his When with incident the photograph to He stopped He was and his arrested, he refused. scene, he leave the demanded searched. phone was lower court. the police policy and the recognition of the right in other opinions public, but it can the serve well. The police court force as highlighted that the films help departments identify problem officers, aid in the Department of Justice's work with local better policing. encourages of being recorded knowledge the subject only to reasonable time, place, did and manner restrictions, it not find that it was violated in this case. 42275-mcr_71-4 Sheet No. 115 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 115 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 116 Side A 05/29/2020 07:30:56 70 . What Smith 1133 1133 , and The district court 72 Glik , property, but finding the y were not doing anything were not doing anything y coming from idling cars the Alvarez CBP that required members of op, took his camera, and deleted ) 5/20/2020) 8:34 AM clearly established at the time of argued that the area around the area around the the argued that ting the compelling government ting the compelling government ELETE D OT N this area private O CP (D AskinsUnited v. States Department of Homeland ECORD 71 R RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT Second, Christian Ramirez was taking pictures from the IGHT TO TO IGHT the Ninth Circuit, questioned when whether First 69 at 362. 362. at at 1046. 1046. at 68 at 1038–39. at at 1043. at For this reason,entitled For this were the officers to qualified . at 1039–40.. at , 67 . Id. . Id. . Id. . Id . Id. . Id. . Id. 67 69 70 71 72 The facts here two involved separate incidents. First, Ray Askins was By the time the United States Court of Appeals for the Ninth Circuit This case differed it from because some decided ones of the previously this court had to decide differently was whether the rule applied to States port of entries.United border entry Calexico the West at photographs from taking stopped photos the park. from a nearby He took the out of concern for emissions of the impact environmental and Border Customs photographing, As he was inspection. for waiting Protection (CBP) officers told him to st pictures. his tended to agree, not finding reasonablerestrictions for protec immunity and notimmunity liable to the plaintiffs, a blow to this case, but a boost for futureAmendment First claims. a First Amendment faced with an was was the decision recording case, make. one to In easy Security Amendment protection to record government officials performing their officials record government to protection Amendment in public duties existed, simply cited to Both men challenged the of the policies media, though they were even the news civilians, both to receive of entry. ports the at information before collecting advance permission bans were overly broad and violated argued these They their First Amendment rights. San Ysidro port. He noticed that the CBP officers were only stopping only stopping were He noticed that the CBP officers port. San Ysidro ensurefemale travelers and wanted to the were deleted. photos and his stop, to also asked He was inappropriate. wasn't about whether the right existed, but whether it existed in but whether existed existed, the right it the whether about wasn't government The ports. area of the CBP. owned by the property, private was ports 2020] 2020] within the circuit, the right was not have officer should whether an unclear the incident it was because known that there was a FirstAmendment right absent expressive intent. [11] COMMENT R 68. 2018). (9th Cir. 899 F.3d 1035 42275-mcr_71-4 Sheet No. 116 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 116 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 116 Side B 05/29/2020 07:30:56 AKE AKE Beyond , 51 W , 51 . 1897, 1899 ES Instead of 75 W. R ASE [Vol. 71 71 [Vol. . 445, 446 (2019); Gregory T. .T. 446 (2019); 445, Gregory , 64 C EV .L.R the United States Court of Court United States the There, the plaintiffs, who There, the plaintiffs, 76 , 77 ) 5/20/2020) 8:34 AM OLUM t right exists, but because some circuit courtThe struck both down t split has ramifications for lower ELETE 73 D , 119 C OT Filming The Police: An Interference Or A Public Public Or A Interference An Police: The Filming N O the right is demonstrated thatso theright is books, in the Qualified Immunity Formalism: "Clearly Established Law" CP (D MERCER LAW REVIEW LAW MERCER ECORD L. Comment, Butterfield, E. (2016); Kayleigh 146 145, J. R What is andWhat Should What is Never Be: ExaminingThe Artificial S ' ARY While the case was remanded was proceedings the case further for While IGHT TO TO IGHT 74 . (2016). 1203, 1203 .M T EV Tyler Finn, Note, Note, Finn, Tyler at 989. at at 1045. at at 1045–46. at L. R McCormick v. City of Lawrence , 48 S . Id. . Id. . Id. . See 77 73 74 75 In From the above cases, it is clearis that the cases, it above the From right police to record courts the not because is exists a circuit split reason main The OREST and The Right to Record Police Activity Police Record to Right The and The First Amendment: Broader ProtectionsFor a Citizen's Right to Record 76. 130 F. App'x. 987 (10th Cir. 2005). courts within within courts the circuits. determining issues of First Amendment protections, the next courts courts next the protections, Amendment First of issues determining claimshave dismissed the on grounds such as immunity.qualified Nonetheless, this artificial circui identified themselves as, "constitutional rights activists and vocal of thecritics Lawrence, KS police department," filed claims under against1983 the Lawrence Police Department alleged retaliation for § against for verbal protests—two them were The recorded. of which (2014); Aracely Rodman, Comment, Service F 1134 of "territorialinterest integrity." [11] COMMENT R arguments, holding that the government failed to prove the rule's rule's the prove to failed government the that holding arguments, assertion a general beyond of nationalpurpose security, and finding publicthat the streets and walkways used by the plaintiffs were typical fora. public regarding the plaintiffs' whether actions met any other restrictions,it nonetheless stands as a recognition in circuit this of the importance of the First Amendment right to record. officers has manyimplications for both individuals and groups. not Although all courts the found in favor of the plaintiffs, the courts nonetheless ensured that futurecourts may find that the First Amendment right to record police clearly established.is B. Circuits that have not a RightRecognized disagree that the First Amendmen havecourts avoided that determination altogether. For this reason, this split has been coined an "artificial circuit split." Frohman, Comment, Comment, Frohman, Circuit "Split"on CitizensRecording Official Police Action Appeals for the Tenth Circuit affirmed the lower court's dismissal of the plaintiffs' First Amendment claims. 42275-mcr_71-4 Sheet No. 116 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 116 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 117 Side A 05/29/2020 07:30:56 Szymecki v. at 1198. In fact, 1198. In fact, at Id. Id. 1135 1135 did consider not Mocek v. City of 78 83 —and other cases —and other cases The court did not 85 Pringle v. Court of Common Common of Court v. Pringle Mocek, videos was not a clearly see McCormick ad a right to record the officers, to recordad a right officers, the 80 ) 5/20/2020) 8:34 AM to record officers enforcement in at 1200–01; at ELETE The court, in Id. Id. D 82 OT N two-page unpublished decision, the court the decision, unpublished two-page O CP (D and that the destruction of ECORD 79 R it cited to its opinion in it RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT , 130 F., App'x. at 988. 130 per curiam 81 IGHT TO TO IGHT , in a In the first recorded incident, a traffic stop, it was alleged Plaintiff McCormick McCormick Plaintiff alleged was it stop, traffic a incident, recorded first the In at 930–32. at 931. at at 853. at at 988. at 84 , . McCormick . Id. . Id. . Id. . Id. . Id. . Id. . Id. 80 82 83 85 78 79 Instead of finding that the plaintiffs h findingInstead of that the plaintiffs The Tenth Circuit, later,furthered this rule. In The United States Court of Appeals for the Circuit Fourth has Pleas, 604 F. Supp. 623, 626 (M.D. Pa. 1985); Woodward v. Gray, 241 Ga. App. 847, 527 App. 847, 527 241 Ga. Pa. 626 (M.D.F.Pleas, v. Gray, 1985); Woodward Supp. 623, 604 254, Pa. S.E.2d 489 Mastrangelo, v. 2000); App. 595, 599–600 Ct. Commonwealth (Ga. App.Hubbard, 255, 52 Ohio 2d of v. Springdale 414 A.2d City 54, 55–56, (Pa. 1980); 58 369 N.E.2d 808, 810–12 (1977). public existed, because arrest, the existed, influenced while public possibly plaintiffs' by retaliation, was by other probablesupported cause. whether a First Amendment right it was the district court that had several cases for McCormick, ones which said his use of of use his said which ones McCormick, for cases several had that court district the it was speech. protected not is expletives such 81. 2015). (10th Cir. 813 F.3d 912 84. 353 F. App'x. 2009). Cir. 852 (4th 2020] 2020] that argued because recordings, and protests of the plaintiffs these arrest them with officers threatened criminaland charges and searched audio and video their and destroyed recording devices. [11] COMMENT R even bother with the facts of the case and dispensed with oral with case and dispensed of the facts the with even bother shouted, "Hey f *** er! Leave her the f*** alone! Leave the out-of-towners alone! Way to to Way alone! out-of-towners the Leave alone! f*** the her Leave er! *** f "Hey shouted, welcomethem Lawrence!" to and later "Mother*** F ers," "F*** heads," "F *** ingpigs," "Hey name?," your what's chubby, "Hey chubby?," track, the around run you don't "Why fatty," "Hey fat a**," "Leave and her f*** the alone." McCormickv. City Lawrence, of 325 check, it sobriety a incident, second the in 2d 1191, 1196–97 2004). And F. Supp. Kan. (D. protected That's that? How's you! "F*** shouted, McCormick Plaintiff alleged was like." you'd if you to case a quote can I Amendment. First expression. affirmed court's that the district decision the "First Amendment right to record police not clearly activities" was established that and the were entitled to qualifieddefendants immunity. the circuit court affirmed the lower court in finding that the plaintiffs the that courtin finding court affirmedthe circuit the lower use of their because protections Amendment First to entitled were not of "fighting words" Albuquerque where no clearly established rule was found—to where no clearly hold rule was plaintiff's that the established within while recording arrested was when he were not violated rights an airport—a forum. nonpublic established First Amendment violation. First established probably dismissed the issue faster than than court. any other issue faster the dismissed In probably Houck 42275-mcr_71-4 Sheet No. 117 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 117 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 117 Side B 05/29/2020 07:30:56 87 . 89 In case, this 91 rs did not have ICK suits for retaliatory P While this case does does case this While 88 [Vol. 71 71 [Vol. CE at 1720. 1720. at I Id. Id. HE —T The Ninth reversed, Circuit ve that the office ve 94 93 ) 5/20/2020) 8:34 AM OURT ELETE C , 145 F., 145 Supp. 3d Md. 492 (D. v. 2015); J.A. D . t courts are clearly eager for guidance. OT N O the Court ruled that in UPREME CP (D S 90 , MERCER LAW REVIEW LAW MERCER HE (May 31,PM) 2019, 3:13 https://slate. T ECORD The Supreme Court Just Made It Easier for Police to Arrest You You Arrest to Police for Easier It Made Just Court Supreme The R festivalin Paxson, Alaska. While Bartlett disagreed III. SLATE 92 IGHT TO TO IGHT . The . The Circuit hasFourth published not on an opinion this , 1715. Ct. 139 S. 86 Garcia v. Montgomery Cty v. Montgomery Garcia at 1724. at at 1720–21. at at 1721. at Nieves v. Bartlett . Nieves . Id. . See . Id. . Id. . Id. 88 86 87 91 93 94 At the district court level, the court sided with the officers, granting These are the only circuit courts that have wrestled with the issue, issue, the with wrestled have only that the are courts circuit These In In its latest Term, the Supreme Court of the United States added States United the Supreme Court of the Term, latest In its Miranda, No. Sept.LEXIS 16-3953, Md. U.S.Miranda, 1, 2017). PX (D. 141643 Dist. 2017 Frazelle, Brian 89. for Filming Them, not deal directly with the First Amendment right to record the police, it havemay nonetheless ramifications in this area of the law. com/news-and-politics/2019/05/supreme-court-nieves-police-abuse-case.html summary judgment in their and finding favor, that the existence of probable cause for making the arrest precluded Bartlett's First Amendment retaliatory arrest claim. Bartlett was for arrested conduct arrest and resisting disorderly during the Artic Man but district courts around the country need their guidance when guidance when courtsbut district their around the country need it handling themselves. issueThis becomes more even challenging with the new in the court, explained developments below. highest 90. 139 S. 1715. Ct. 1136 arguments [11] COMMENT R matter, even though the distric even though matter, drinking. excessive and parties, loud sports, extreme for 92. known Alaska, in town in a small sports festival winter Man is a weeklong Artic arrest, the plaintiff must claim pro and probable cause making for the arrest and instead conducted the arrest in retaliation for some protected action. constitutionally with the officers' the Officer Nieves and Trooper claimed stories, with Weight other to spoke they while them at after he yelled Bartlett arrested they festival goers, and that Bartlett Weight shoved to when asked leave. The officers also claimed that Bartlett resisted arrest by moving slowly to handcuff attempted him. when they A. The Recent OpinionA. new case law in the area of the First Amendment. 42275-mcr_71-4 Sheet No. 117 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 117 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 118 Side A 05/29/2020 07:30:56 103 In In 104 . Because 97 101 1137 1137 ass, given the numerous 96 ) 5/20/2020) 8:34 AM may of many friends of the court. ELETE Lozman v. City of Rivera Beach D OT N As in those times when officers have the have As in when officers times those O 99 CP (D The officers filed a petition of writ of certiorari writ of a petition officers filed The 95 ECORD R RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT IGHT TO TO IGHT Part III. The example provided jaywalking, a by the Court was 102 at 1723. at Brief of the First Amendment Foundation and Fane Lozman as Amici Curiae Curiae as Amici Lozman Fane and Foundation Amendment First of the Brief at 1727. at 100 . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Infra . See The Court stated that plaintiffs can of overcome plaintiffs that existence Court the The stated 95 96 97 98 99 This new decision cameThis at the dis While this decision does not directly affect the right to record not directly thisdoes decision While the In the Supreme Court opinion, authored by ChiefJustice Roberts, 98 100 101 102 103 B. Prior PrecedentB. Prior with the Supremewith the Court, granted. which was violation of the law for which very few people are arrested. few people violation of the law for which very police, place it does a on new caveat this action. Bystanders and protesters whoare participating in their First Amendment right be can thwarted through arrest. halt would An arrest further them from recording, long as there some is and as probable to make cause the arrest, no recoursethe injured against party has the officers. These implications will be further in the Analysis discussed section of this Comment. Just last term, the court decided 2020] 2020] holding probable that cause not the was basis of theinstead and claim, that the plaintiff must simply show "(1) that the officer's conductwould from Amendment'" firmness of ordinary a person 'chill First [their] actions and the (2) officers desire to chill these actions was the but-for arrest. of the cause [11] COMMENT R in Support of Respondent, Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (No.of S. Ct. v. Bartlett, 1715 (2019) Respondent, 17-1174); Nieves in Support 139 of Brief Bartlett, v. Nieves of Respondent, Support in Curiae Amici as Activists Individual Three probable cause by showing that the officers did not arrest other other not arrest officers did the by showing cause that probable similarly situatedcitizens. this burden may be a high bar to surp country, Court the in this placed a qualifier upon arrestable offenses it. authority to make an arrest,but usually use their discretion to abstain. the Court reversed the Ninth Circuit's decision and instead agreed with the district court, when a plaintiff claims that holding retaliatory arrest in violation of a constitutionally protected right, the plaintiff must "plead and prove" probable of a lack cause to make the arrest. 42275-mcr_71-4 Sheet No. 118 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 118 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 118 Side B 05/29/2020 07:30:56 109 . Although 110 , on the other hand, hand, other , on the [Vol. 71 71 [Vol. Hartman v. Moore 107 There, Lozman was arrested Hartman 105 ) 5/20/2020) 8:34 AM 111 ELETE D There, the Court held that a plaintiff OT Mt. Healthy City Board of Education v. v. of Education Board Mt. Healthy City N 112 O Framework, government the court finds CP (D 106 , 547 U.S. at 265–66). U.S. , 547 at MERCER LAW REVIEW LAW MERCER , 429 U.S. at 287; Brief of the First Amendment Foundation, First Foundation, Amendment the of Brief 287; U.S. at , 429 ECORD R Hartman Mt.Healthy , 138 S. Ct. at 1952. , at 1952. Ct. 138 S. IGHT TO TO IGHT involved a civil, wrongful termination claim, has it since (citing (citing at 1950. at at 1949. at Ford v. City of Yakima, 706 F.3d 1188, F.3d 1194–95 Yakima, of 706 Cir. v. City Ctr. 2013); for Ford (9th controlled, with went while the city If the court finds there If the was the plaintiff cause, probable , the issue was identical to the one here: whether probable here: one probable was whether , the issue to identical the 113 108 note 103, at 3. 103, at 3. note . Id. . See . SeeHealthy Mt. . Id. . Id. . Lozman . Id. . Id. . Id. . Id. Lozman filed a § 1983 claim against the city, citing multiple Lozman filed a § The two sides in this case argued for two different Supreme Court Court Supreme in casedifferent sides argued for two two this The 107 111 110 113 112 106 105 supra supra 108. (1977). 429 U.S. 274 109. (2006). 547 U.S. 250 Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir. 2007); Gullick 2007); Gullick (6th Cir. of City Springboro, F.3d 807, 821 Bio-Ethical Inc. v. Reform, 477 Wis. (W.D. F. Supp. 2d 1063, 2007).v. 1069 517 Ott, been adoptedmatters. criminal for during a city council meeting. Over the years, he had attended many of of many city council meeting.during a had attended he Over the years, domain use the of eminent city's against out to meetings speak these to city The development. for private waterfront the along homes seize council claimed Lozman for violatingwas arrested rules regarding its meetings; Lozman claimed arrested he was in retaliation public of his ofcriticism the officials. Under the Under the 139 S. Ct. 1715 (2019) (No. 17-1174); Brief for of Institute Free the Speech as Amici Curiaeof Support Respondent, in Nieves (2019) (No. Bartlett, v. Ct. 139 S. 1715 17-1174); of in Support Curiae Amici as al. et Association Photographers Press National the of Brief Respondent, S.Nieves 1715 (2019) (No. Ct. 17-1174). 139 v. Bartlett, 104. 138 S. 1945 (2018). Ct. 1138 Lozman can bar cause a retaliatory claim. arrest [11] COMMENT R arguing a retaliatory prosecution must first a lack probable of show cause. incidents of harassment. The jury found for the city on all such claims. such the city on all incidents of harassment. for jury found The Circuit Eleventh a causeThe probable defeated that affirmed, holding First Amendment claim for retaliatory arrest. Mt. Healthy arose in a criminal setting. precedents. Lozman argued Lozman precedents. Doyle defendants liabledefendants for violatingthe First Amendment if it concludes that the defendants would not have taken action against the plaintiff "but or suppress protectedfor" their intent to punish expression. 42275-mcr_71-4 Sheet No. 118 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 118 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 119 Side A 05/29/2020 07:30:56 , 119 For , but Nieves 116 Nieves was joined, joined, was Mt. Healthy tomayor, who 1139 1139 Mt.Healthy Nieves note 103, at 4 (citing briefs of note 103, at 24. at 24. 103, note 121 , and Justice So 117 supra whether it applied to a city's whether it applied ) 5/20/2020) 8:34 AM supra supra 115 ELETE D OT Other Justices added their own opinions, opinions, added their Other Justices own N O 122 ). camp, applying the retaliatory prosecution rule CP (D framework. ECORD R Amici Curiae RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT Instead of listening to these pleas, the Court, in Court, the pleas, these to of listening Instead Hartman The amici noted that the Ninth The amici noted that rule Circuit this follows IGHT TO TO IGHT 120 at 1730–42. at 1730–42. note 103. note , 139 S. Ct. at 1725. , at Ct. 139 S. Mt. Healthy 118 123 at 1719. 1719. at at 1955. at Brief of Three Individual Activists, Activists, Individual Three of Brief at 1954. at If the court If the finds thereno probable cause, then was the court 114 . See id. . Id. . Id. . Nieves . See . Supra . Supra . Id. . Id. . Id. . Id. Given the opportunity to address retaliatory to address the in arrests Given the opportunity The disproval of the new opinion came not only from disproval the outsideThe but Faced with these two options, the Court chose . . . Court neither. The . . chose Court the options, withtwo these Faced 123 122 121 119 118 114 115 116 117 120. Brief of Press National Photographers, petitioners and their their and petitioners applies the the applies case, many amici curiaecase, urged the courtto extend the framework. Additionally, they urged that the framework better protects constitutional rights by not tipping the scales in favor of the government. 2020] 2020] loses. [11] COMMENT R this reason, the courtthis not was tasked with which determining framework best fits in retaliatory arrest claims. The Court remanded the case and instructed the Court of Appeals to apply determining of only in the context retaliatory policy, not a retaliatory arrest. in full, by Justices Breyer, Kagan, Alito, and Kavanaugh and in all but Thomas. by Justice one part dissented. to include, Justice Gorsuch, who concurred in part and dissented in concurred Gorsuch, and dissented who include, Justice to in part part, Justice Ginsburg, who same did the went with the the with went and has not experienced an influx of frivolous retaliation claims. an influx of frivolous experienced not and has C. Disagreement in the Court from inside well. The majority opinion in the court as stated that Lozman's claim did not represent typicalthe retaliatory suing but the city. the officers, claim wasn't he arrest because to retaliatory arrests and forcing plaintiffs to make a threshold showing of no probable cause to further their claim. 42275-mcr_71-4 Sheet No. 119 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 119 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 119 Side B 05/29/2020 07:30:56 133 in the 130 Instead, he 125 While some of the of the some While [Vol. 71 71 [Vol. 127 He found, as he believed the He found, as he believed ) 5/20/2020) 8:34 AM red by Thomas, he sought himself, 129 , the Court held that to prove ELETE ly common sense and understanding D In his opinion, which found most of its of its most found opinion, which In his United States v. Armstrong OT 124 N dment precedents. dment O in defeating a retaliatoryin defeating arrest claim. He Although Gorsuch agreed that questions Although Gorsuch agreed still Armstrong CP (D 132 MERCER LAW REVIEW LAW MERCER and its application, he believed that the majority's ECORD He found the majority's allowance of a similarly R at 469 n.3. at 126 or admissions by the prosecutors regarding a prosecutors by the or admissions IGHT TO TO IGHT , 139 S. Ct. at 1733. , at Ct. 139 S. 131 Armstrong but see id. see but at 1733 (Gorsuch, J., concurring in part and dissenting in part). in dissenting part and 1733 (Gorsuch, in J.,at concurring at 1730. 1730. at at 1729. at at 1728–29.at , at 1728 (Thomas, J., concurring). J., 1728 (Thomas, concurring). at . at 465. . at 128 . Id. . Id . Nieves . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. Despite this optimism, this the Despite of Justice Gorsuch still voiced one Justice Thomas's concurrence creates actually harshera than rule Justice in the majority's Gorsuch found optimism opinion, hoping 132 131 133 129 128 127 124 125 126 130. (1996). 517 U.S. 456 retaliatory prosecution, the plaintiff, in a racially the plaintiff, prosecution, powered claim, is retaliatory required clear to show evidence through discrimination, of "similarly equally of who were not individuals race" a different situated prosecuted majority's opinion. In discriminatory purpose. discriminatory greatest concerns within concerns greatest new this ruling: citations from earlier opinions autho from earlier citations people. situated of similarly defense the with do away to 1140 [11] COMMENT R situated exception, as an "untethered" approach not rooted in approach rooted not the an "untethered" as exception, situated Amen or First common-law that proposed by the majority. surround surround nod to this precedent showed willingness its to admit evidence beyond similarly situated peoples to defeat of probable the existence cause. believed that retaliatory arrests of this kind should be treated just like like just be treated should kind of this arrests retaliatory that believed law their common imprisonment,torts of false malicious arrest, and malicious prosecution, which require each a mere showing of probable deflect. to cause that would app courts the lower a similar issue. when faced with majority hinted at, that probable cause is not an absolute requirement, nor an absolute defense of reference the pointed to other Justices opinionmajority worried that the would increase Justice Amendment, First of the and the suppression arrests retaliatory Thomas felt this ruling "derail[s] our retaliation jurisprudence in to opposed as law enforcement," ways," and will "chill[] several citizens. 42275-mcr_71-4 Sheet No. 119 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 119 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 120 Side A 05/29/2020 07:30:56 Mt. Mt. Healthy not arrested? 1141 1141 136 To illustrate this rule's 134 137 ) 5/20/2020) 8:34 AM te[s] a rule that will leave press would better protect journalists, ELETE his advice and insteadhis refuseto admit D The The of shiftingburden structure situated onlookers were OT 135 139 N O CP (D ECORD R RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT IGHT TO TO IGHT If the officers arrest If the officers this citizen she required journalist, is to at 1735 (Ginsburg, J., concurring in the judgment in part and dissenting in in dissenting and part in the judgment in J., (Ginsburg, concurring at 1735 at 1741. 1741. at at 1740. 1740. at at 1730. at (Sotomayor, J., dissenting). dissenting). J., (Sotomayor, , JusticeGinsburg iterated, 138 In our own time and place, criminal laws have grown so exuberantly exuberantly so grown have laws criminal place, and time own In our and come cover to previously so much conduct innocent that almost anyonearrested be something. for can use If the state could these who voice those silence purposes but to intended their for laws not Amendment First of our left be would little ideas, unpopular of the past the tyrannies us from separate would little and liberties, age. own our of fiefdoms malignant the or . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. Justice Sotomayor, the only fullhearted dissenter, was also the only also the was dissenter, only fullhearted the Justice Sotomayor, If the lower courts do not heed do not heed If the lower courts While While Justice Ginsburg the rulingconcurred with to as Sergeant 139 135 136 137 138 134 part). part). shortcomings, she painted a story of a police painted who sees story she a passerby shortcomings, arresting a man front in of a home out a camera and pulls record to the officers. Healthy protestors, and citizensprotestors, from retaliatory baseless, protect better arrests; them than "this thin case [that] sta members First and others exercising Amendment little rights with protection against of their speech." police suppression 2020] 2020] [11] COMMENT R Justice who mentioned the topic at issue in this in this issue at topic First the Comment—the who mentioned Justice Amendmentright to record the police. Justice Sotomayor fervently protested the "similarly situated" rule established by the majority as it had no grounding in American law. show proof that other similarly How will she accomplish if this she was inalone her actions? And will the court make the captured decision? recording Justice irrelevant in its of case kind this conclusion by the troubled deeply seemed Sotomayor would come to, and like Gorsuch, lower urged the courts useto common sense when applying this rule. evidence thin requirement the beyond of similarly situated, this and fiefdomsof tyrannies doomsday view may becomevery well a reality. in Weight, and presented towards Trooper that dissented she Nieves, an idea that directly coincided with the amici: the command.Framework should 42275-mcr_71-4 Sheet No. 120 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 120 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 120 Side B 05/29/2020 07:30:56 , She We've UARDIAN 140 G 144 ). As Justice HE , T UTCOME O 141 [Vol. 71 71 [Vol. framework the most is McCormick ETTER B HE not yet made a determination a yet made not on —T ) 5/20/2020) 8:34 AM Castile, Alton Sterling, but what Mt. Healthy ELETE D OT NALYSIS N O &A Therefore, whenever someone is arrested for is arrested someone whenever Therefore, , that the 142 CP (D MERCER LAW REVIEW LAW MERCER without ever mentioning the right to record or this to recordor this the right ever mentioning without ECORD maintains a record of American citizens who have amici has completely chilled any further development completely development any further chilled has R 143 Nieves, MPLICATIONS MPLICATIONS IGHT TO TO IGHT I Nieves at 1730 (Gorsuch, J., concurring in part and dissenting in part). in dissenting part and 1730 (Gorsuch, in J.,at concurring at 1742. at IV. . The PeopleCounted: Killed by Police in the US . . Id. . Id. . Id. . Id. . Id. This Comment does not seek to take sides on the current artificial on the artificial current sides take to not seek does Comment This Furthermore, Sotomayor Justice the takes same position Justice as The Guardian 143 141 142 140 144 towards the split. Courts, which have whether the right exists, will never get the opportunity, because the stringent the will not be able overcome plaintiffs to probable-cause-similarly-situated rule (such a result was already case, Circuit Tenth in the above demonstrated Gorsuch said, "criminal laws have grown so exuberantly and come to and come to exuberantly "criminal have grown so laws Gorsuch said, innocent conductalmost that cover much previously so anyone can be for something."arrested circuit circuit split because, in the Author, Court's the Supreme opinion of this opinion in heard a few of these names, Philando names, heard a few of these about the 1,091 others? Most likely, those others did not have bystander recordings like Castile or Sterling. Without those recordings, the on who was decision for at fault killing comes the the officer's down to may time be the at body camera. videos these or his While story recent killing the enough, for example in of Jefferson, Atatiana citizen- is case.an Without that the not alternative, overwhelmingly, driven option, the full truth in all its angles may never be revealed. 1142 [11] COMMENT R https://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police- Sep. 2019). 28, (last visited killings-us-database been killed by the police. For 2016, that number 1,093.was described the majority rule as one that "constrain[s] a person's liberty" liberty" a person's "constrain[s] majority rule as one that the described forefathers our of wisdom the denies and convenience" for a "marginal Amendment. First of the protections the who created appropriate for First rule Amendment retaliation claims. Ginsburg and the Ginsburg filming the police, there will surely be some attenable probable cause. The ruling in circuit split, has put an end to the discussion and possibly to the use of paramountthis right. Citizen Why Do We Need A. Recordings? 42275-mcr_71-4 Sheet No. 120 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 120 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 121 Side A 05/29/2020 07:30:56 ], 148 And 147 ATABASE 1143 1143 (Oct. 14, 2019), 146 sponding to a nonemergency sponding to a nonemergency , NPR Secondly, citizens can't always , NCSL [hereinafter NCSL D ) 5/20/2020) 8:34 AM 149 rdings. Whilerdings. Connecticut, Nevada, On the evening of October 12, 2019, 2019, October 12, evening of On the ELETE D ATABASE 145 OT D N O AWS L Former Fort Worth Officer Charged With Murder In Fatal Fatal In Murder With Charged Officer Worth Fort Former CP (D ECORD AMERA R C RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT ORN IGHT TO TO IGHT W ODY . Id. With police equipped with their own recording devices, why is it so it is why devices, own recording their police equipped with With 1. Use of Body Cameras Body 1. Use of our modern a proliferation use times of cell in the have seen While 146 even in these states, there are limits to who is required wear them to who is to are limits there states, even in these https://www.npr.org/2019/10/14/770179241/former-ft-worth-officer-charged-with-murder- in-fatal-shooting-of-woman-in-her-ho. B 147. important that we protect a citizen's right record?to Well, first, only requirefive states that law enforcement officers wear body cameras: South Carolina, Nevada, California, Florida, and Connecticut. http://www.ncsl.org/ http://www.ncsl.org/ research/civil-and-criminal-justice/body-worn-cameras-interactive-graphic.aspx#/ (last and when the officers can get them. can get officers and when the acted erratically, acted erratically, and illegally. irresponsibly, He promptly resigned from the murder. force charged with was and something in the the in outsomething back window. He yells and up" "[p]ut your hands window. availability in the The figure the at shoots milliseconds within Shooting OfIn Woman Her Home 28,visited 2019). Sep. 148. public. the with interact routinely who officers only Typically, 149. federal grants. on state funding and are Contingencies based 145. Bates, Karen Grigsby 2020] 2020] go to ability not are their while and perfect, videos citizen always While numerous implications they has are nonetheless bad), (good and "viral" in accountabilityvital ensuring integrity and in the police force. been an increase has there capabilities, built-in recording phones with in another recording police device: cameras. body In some instances, cameras is served. are justice For are all ensure these that to needed of Atatiana shooting recent body camthe from example, the footage Jefferson in Fort Worth, Texas. [11] COMMENT R of this body cam video left no doubt in anyone's mind that Officer Dean Officer Dean no doubt in anyone's mind that body cam video left of this Ms. Jefferson was playinga video game with her nephew, was when she shot and killed by Officer re Dean who was footage, cam officer's body he and a In the door. for an open check safety do home. They Jefferson's around Ms. walking seen can be officer fellow officers The announce themselves. they do not any doors; knock on not to responds Dean circle to backof the home, where Officer the get access to the body camera reco North Dakota, Oklahoma, treatand Texas the recordings like public records, they each have their own exclusions and standards that allow 42275-mcr_71-4 Sheet No. 121 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 121 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 121 Side B 05/29/2020 07:30:56 ATIONAL ATIONAL Florida, , N 150 151 https://www.aclu. https://www.aclu. [Vol. 71 71 [Vol. are all benefitspotential of meras being and operated worn ) 5/20/2020) 8:34 AM they may providethey may appear it if you ELETE an be withshared their and superiors D Surveillance, ACLU,Surveillance, OT N O note 147. note 147. is anyone ever not under surveillance? With With under surveillance? is anyone ever not note 147. CP (D 154 MERCER LAW REVIEW LAW MERCER Body-Worn Camera: What the Evidence Tells Us Tells Evidence the What Camera: Body-Worn Yet, this concern is addressed by the fact that the supra supra supra , , there are numerous reasons to believe that having that believe to reasons are numerous there ECORD 153 R (Nov.2018),14, https://nij.ojp.gov/topics 152 ATABASE ATABASE IGHT TO TO IGHT USTICE D J Mapp v. Ohio, 367 U.S. 643 (1961); Katz v. United States, 389 U.S. 347 U.S. 347 389 v. United States, (1961); U.S. Katz 643 Ohio, 367 v. Mapp . See . Video Public with Wrong What's Clearly, body ca are not enough there 2. Improving Policing of body cameras on behavior is police effects of the evidence While Nevertheless, there arealso possible drawbacks of citizens recording 153 154 NSTITUTE OF 152. Brett Chapman, Chapman, Brett 152. 151. NCSL 151. right to record only extends to officers conducting their duties in public. their duties to officers conducting extends right to recordonly lens for anyone's it can do they see, to eyes anyone's can doIf they for it well. A second concern as to see may be that recording can lead to distractions. If an officer is worried about the camera in his face and not the assailant he'strying to arrest, it may cause problems. However, patterns fact in the seen as who record the police, bystanders most someone no one likes third, And action. the from away do so above, over their shoulder do looking job. as they their However, video cameras now, ubiquitous are so org/other/whats-wrong-public-video-surveillance (last visited Sept. 30, 2019). 30, Sept. visited (last org/other/whats-wrong-public-video-surveillance I 150. NCSL D 150. 1144 videos. of kinds redact,some withhold, obscure or to them [11] COMMENT R to make them a legitimate substitute cell for phone recordings. And, if a little use at all. theare of they citizen can't recordings, access even still inconclusive, the police. First, it may encroach privacy, the officer's on and the right for to and protect one which people fighting gain privacy is to have been of years. hundreds citizens recordingcitizens officers. If officers are aware that a camera is on them and that all their actions c the public, it's certain they'll behave better. an eye pointed right backan eye pointed right on big brother is beneficial. Civility, lower incidences of brutality, and accountability Georgia, Oregon,and South Carolina do not provide body camera open recordsfootage in requests, but in the recording interest. serve the public would if it or /articles/body-worn-cameras-what-evidence-tells-us. /articles/body-worn-cameras-what-evidence-tells-us. (1967); 381 U.S. Wade, Griswold 479 (1965); Roe Connecticut, v. 410 v. U.S. 113 (1973); few. (1975); a 420 U.S. name to just 469 v. Cohn, Cox Corp. Broadcasting all the possible complaints officers could bring, always there is a counterattack. Overall, the right to record us all, benefits citizen and is a rightofficer, and it that must be protected. 42275-mcr_71-4 Sheet No. 121 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 121 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 122 Side A 05/29/2020 07:30:56 (Aug. 6, 6, (Aug. interest and , WTOC, 1145 1145 The video depicts a depicts video The 155 156 rk so much rk so much 158 approaches and attempts to (Aug. 24, 2019, 1:39 AM), ) 5/20/2020) 8:34 AM woman attempting to scratch at the began with the woman fleeing after began with the woman fleeing after ELETE D OT N O ACEBOOK CP (D ECORD R Tybee Island Mayor Responds to Viral Arrest Video Arrest Viral to Responds Mayor Island Tybee RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT Oncethe Tybee Island city and police leaders learned of IGHT TO TO IGHT 157 When a Facebook video is shared, it is viewable by all the Facebook Friends of of Friends Facebook by all the is viewable it is shared, video a Facebook When . Id. . Id. This story illustrates the point that citizen recordings are only one As an example, in early August of 2019, a video of 2019, a in early August As an example, arrest of an made on 3. Power Viral of the Video citizen recordings that One reason spa The video, posted on Facebook by a bystander not familiar with the with familiar not by a bystander Facebook on video, posted The 156 157 thatprofile holder.Those friends can turn in shareprofile, on it own their making it is there shares, 1,700 have to claims video original the While Friends. their to available reached. really that eyes many how no telling Evans, Sean 158. angle, but so are police body cameras. The more angles thatcan be decried city the be. While will picture the more complete the obtained, the video, they were quick to speak out. The mayor stated that the video that video mayorthe stated The out. speak were quick to video, they the was officers of force by the and use the out of context, was taken appropriate. For this reason, he and posted police department the the and the police on Facebook, so police report body camera footage full show full footage could learn the the to alleges The everyone story. man the violently with officers: being the suspects two aggressive pulling at the officer's and the vest led that into the facts the police report goes officer's face. Additionally, to the original arrest: the incident attempting to use a fake I.D. enter a bar. to https://www.facebook.com/lance.bazemore.3/videos/10157506995859104/. 155. Lance 155. Bazemore, F 2020] 2020] [11] COMMENT R outrage is due to their ability to go viral. Recordings can go viral. Recordings is due to be to on outrage their ability shared a multitude of social media sites for and an infinite amount of times. This shareability can lead to further exposure, is not it but its faults. without a Saturday night in Tybee viral. Island, GA went large pressing male officer a small blond woman against the ground and attempting to handcuff her. Another man pull the officer off, and the two have an altercation. While citizen the While have an altercation. two and the officer off, the pull cameraman's view is blocked a truck, by the woman lets out a loud thebackup arrives, and the officer's woman is Thereafter, screech. the man be handcuffed. The backup officer enough to engages subdued drags the firstwho tried to pull aggressively officer away. The officer the man to the ground, but the man refuses to go down easily. The man tased toand then agrees is be handcuffed. entire altercation, During the bystandersare loudly screaming at the officers. 2019, 3:52 AM) https://www.wtoc.com/2019/08/05/tybee-island-mayor-comments-viral-AM) 2019, 3:52 arrest-video/. arrestees, was shared over a thousand times, making its truereach unknowable. 42275-mcr_71-4 Sheet No. 122 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 122 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 122 Side B 05/29/2020 07:30:56 , Mt. Hartman framework may be an Clearly, the 160 said the majority majority said the Nieves began as wrongful wrongful began as opinion may greatly opinion may greatly [Vol. 71 71 [Vol. Mt. Healthy , it notis a far stretch that Nieves Yet, Justice Sotomayor was And then, Justice Thomas Justice And then, 161 end. First, the divergent views 162 Nieves ) 5/20/2020) 8:34 AM for if this had if this for actual been police Ninth Circuit has shown that the Mt. Healthy Justice Gorsuch ELETE D OT framework. Although this rule came from N O was a retaliatory prosecution. retaliatory a was CP (D MERCER LAW REVIEW LAW MERCER ECORD R Mt. Healthy , 429 U.S., 274. 429 Second, the Ninth Circuit currently uses the currently Second, uses the Ninth Circuit Hartman 163 IGHT TO TO IGHT 159 , 139 S. Ct. at 1733 (Gorsuch, J. concurring opinion) (discussing opinion) (discussing concurring J. at 1733 (Gorsuch, Ct. , 139 S. , 139 S. Ct. at 1734. , at Ct. 139 S. at 1728–29.at at 1740–41. at framework for retaliatory arrests. Meaning, thecourts that lie . Id. . Id. . Mt. Healthy . Mt. . Nieves . Nieves As mentioned above, the result of the rule of the the from mentioned above, result As This This impediment may not yet be the 1. The Correct Framework1. The Correct plaintiffsWhen bring forward retaliatory arrest claims for violations 162 163 159 160 161 1146 Facebook a few with issue remedied the quickly they video, here, the posts and news stories. The remedy (if long legal battle a no citizen recordingbrutality with have been could murder accused an unsolved (if the or force) excessive denies officer the mortally over either is perpetrator injured). a post any I'd take option day. B. Ramifications of v. BartlettNieves [11] COMMENT R this rule may apply otherwise. apply otherwise. rule may this 547 U.S. 250). ever-unresolved circuit split. When plaintiffs bring a § 1983 claim ever-unresolved circuit split. When plaintiffs bring a § praying for the court to recognizea First Amendment right to record may of probable they police, struck be down by the existence swiftly the not all right Although cause. to record stem cases from a retaliatory arrest actions, which was the issue in providedJustices in the by the various courts are notcourts afraid to adapt these rules to new realms. not as hopeful in her interpretation. in her hopeful not as thought the majority was too lenient and would too was majority implement the an even thought stricter rule. Healthy new circuit on this in the largest may holding and find back push It courts know is for interpretation. room the to too greater what soon will do. is one clear rights, there rule Amendment court their to First the should apply, the termination. affect how it appliesaffect how it in the future. space may have left open forms of to use multiple courts for lower cause. evidence when finding probable rule can seamlessly fit into either domain. The a civil and not a criminal issue, the 42275-mcr_71-4 Sheet No. 122 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 122 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 123 Side A 05/29/2020 07:30:56 RIME (Apr. C If the 164 ROGRESS IGHT ON P , R 1147 1147 MERICAN A it also leans more in al rights, they also are 165 ENTER FOR , C ) 5/20/2020) 8:34 AM de without the protected behavior, behavior, protected the de without Perhaps this is in response to the the to response in is this Perhaps ELETE rule. D ONCLUSION 166 C OT N ), they win.framework The would lead to O V. Nieves CP (D . This opinion makes it exponentially easier for easier exponentially makes it opinion . This rule, that common sense mayrule, more be partisan The Conservative Case for Policing Reforms Policing for Case Conservative The er government and person ECORD R Conservative Court Packing Court Conservative Nieves , 429 U.S., at 287. 429 RIGHT TO RECORD THE POLICE THE RECORD TO RIGHT Nieves IGHT TO TO IGHT framework, the plaintiff has the has the burden the plaintiff framework, the that showing of . Mt. Healthy . Mt. In conclusion, the Supreme Court of the United States got it wrong it got States United the Court of Supreme the In conclusion, 2. The Changing Court2. The Changing cop-friendly future, these we proceed into the As be may opinions 164 favor of law enforcement. Although conservatives and the right wing right and the conservatives Although enforcement. favor of law tend to favor small more likely to "back the blue." when it decided decided when it the police to arrest someone for exercising their constitutional rights, their constitutional the police exercising to arrest for someone simply by claiming probable cause. This threatens opinion to put an end in the right to recordto any further development the police. By creating opportunity will have the rule, fewer courts a stringent such address to plaintiff does so, then the burden is on the government defendant to defendant to government on the the so, then burden is does plaintiff ma would have been arrest the show awhich includes showing of probable cause.plaintiff from The benefits the cause; probable of defense by the defeated being immediately not police because benefit as long as they can made they would have show doingwas officer the (so behavior protected the even without arrest the jobhis instead of retaliating the most honest results and do a far better job at protecting the truth the thandoes and justice, more and more likely. As courts the federal lean further right, as the current administration is assuring happens, 3, 2019, 9:01 AM), https://www.americanprogress.org /issues/democracy/news/2019/04/03/468234/conservative-court. Petersen, Randy 166. 165. Sam Berger, Sam 165. (Feb. 23, 2018) http://rightoncrime.com/2018/02/the-conservative-case-for-policing- conservative the of characteristic proud a is officers police our for ("Support reforms/ . . . ."). movement 2020] 2020] plaintiff greatestand the to deference the Under the the police. affords Mt. Healthy but-for the was of or action cause arrest. speech the protected [11] COMMENT R increase in moreincrease liberal led like Black protests, Lives Matter or the of this affiliations political is because or perhaps March; Women's of the most this officers. While unclear, what clear that is is is while when sense" "common use to the lower courts urge Justices numerous applying the than some would like. people 42275-mcr_71-4 Sheet No. 123 Side A 05/29/2020 07:30:56 Side A 05/29/2020 Sheet No. 123 42275-mcr_71-4 42275-mcr_71-4 Sheet No. 123 Side B 05/29/2020 07:30:56 [Vol. 71 71 [Vol. rule, but because the Nieves cessary protection, we can hope cessary protection, we can hope ellate courts a have made hard ) 5/20/2020) 8:34 AM ELETE D OT N O Christina Murray Murray Christina CP (D MERCER LAW REVIEW LAW MERCER ECORD R IGHT TO TO IGHT swing right, we can predict right, swing that more like opinions are on the way. this Supreme Court and lower federal app 1148 step. cause probable at the halted be will plaintiff's because right, the a ne the right to record such Because is will apply prudently lower courts this [11] COMMENT R 42275-mcr_71-4 Sheet No. 123 Side B 05/29/2020 07:30:56 Side B 05/29/2020 Sheet No. 123 42275-mcr_71-4