Maybe you have seen Exit Through the Gift Shop, a delightful documentary about a French guy trying to make a documentary about the street art movement. There are several scenes in which police officers try to thwart the artists/hooligans' attempts to leave their marks on buildings. The aforementioned French guy caught the interactions on tape.
Cop-recording can be controversial. Most police officers don't want bystanders to tape them while they're working, and some cops will intimidate or arrest people who try to film them with their cellphones. Citizens who try to record the police -- like the Frenchman in the film -- are often told to shut off their cameras.
The Supreme Court, however, doesn't seem to have a problem with permitting the public to record the police. This week, the Court declined to review a Seventh Circuit decision finding that such recordings are protected under the First Amendment.
The case in question challenged the Illinois Eavesdropping Act, which bans audio recording police officers in public places. The Seventh Circuit Court of Appeals enjoined enforcement of the eavesdropping law in a 2-1 decision in May, ruling that the law "likely violates" the First Amendment, reports the Chicago Tribune.
The Seventh Circuit majority found that the Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. In particular, the court noted that the statute restricts far more speech than necessary to protect legitimate privacy interests. As such, the law is subject to heightened scrutiny, though the court declined to impose strict scrutiny.
The Seventh Circuit isn't the only court to reach that conclusion.
The First Circuit Court of Appeals issued a similar ruling in August 2011, finding that Boston cops were not protected by qualified immunity after they arrested Massachusetts attorney Simon Glik for openly recording what he thought was excessive force against a suspect. The First Circuit held, "A citizen's right to film government officials ... in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."
If you have a client who has been arrested or harassed for recording the police, get your civil rights suit ready. Now that the Supreme Court has declined to hear the matter, it's unlikely that qualified immunity would prevent your case from moving forward.
- Supreme Court Refuses To Hear Case On Taping Police Officers (NPR)
- Recording Police v. Recording Citizens Debated in Courts, IL Legislature (FindLaw's Seventh Circuit Blog)
- No Qualified Immunity: Citizens Have Right to Record Police (FindLaw's First Circuit Blog)