Watching the Watchers: Monitoring Police Performance as Public Servants

By Karl T. Muth & Nancy Jack

Introduction

If a picture is worth a 1,000 words, what is a video worth? Apparently, quite a bit more.

The proliferation of cell phone cameras has raised a new debate: whether people can record the activities and conduct of police in public areas. Several cases are making their way through the courts in which police officers arrested people for video recording police officers or for refusing to stop recording when asked. Courts have struggled with the appropriate framework to analyze the issue, with no clear consensus.1

However, the employment relationship is rarely, if ever, explored as a remedy to this jurisprudential confusion. Here, we argue that if employers may record their employees, then people, as employers of the police, likewise should be able to record the police when in public.

History

The importance of such a right by the public should not be understated. As recognized by our Supreme Court:

[E]xposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the [citizen]’s fear that, if he [or she] does not cooperate, he [or she] will be subjected to abuse.2

Monitoring police activity is nothing new. From the earliest days of our colonial history, monitoring police activity has been a concern. The Third Amendment addresses, primarily, records kept in Massachusetts and else­where, where colonists could register complaints against occupying British officers (similar to today’s military police forces), who were enjoying the services of inns and places of hospitality while refusing to compensate innkeepers and landlords.3 The colonial policemen, particularly in the port of Boston, were known for their corruption, violence, and disregard for colonists’ safety.4 This same misuse of power existed in England, despite training manu­als and written orders demanding something substantially different. Consider, for instance, the ideals expressed in the Constables’ Manual for His Majesty’s London Metropolitan Police Service:

There is no qualification more indispensable to a Police Officer than a perfect command of temper, never suffering himself to be moved in the slightest degree, by any language or threats that may be used; if he does his duty in a quiet and determined manner, such conduct will probably induce welldisposed [sic] by-standers to assist him should he require it.5

For years, the conversation attempting to reconcile the formal orders to police with the frequently ugly reality of imposing law on the streets sat dormant. The monitoring of police was thought at one time to be expensive, technologically infeasible, and inviting of hearsay. Today, monitoring police activity is cheaper, and feasible, due to the advent of inexpensive audio record­ing equipment, video cameras, high-resolution photography,6 and (eventually) cameras attached to telephones,7 lamp posts, taxicabs, stairwells,8 police cars,9 restaurants,10 and automatic teller machines.

George Holliday’s now-famous videotape in 199111 only began to restart this conversation in a modern context. Holliday observed and recorded, as Rodney King, an African-American taxi driver, was beaten by eight police officers armed with tasers and batons. The then-year-old organization “Copwatch” (sometimes spelled “Cop Watch” or “CopWatch”) of Berkeley, California used the incident to encourage citizens to videotape, photograph, and otherwise make records of police misconduct.

It is notable that, at the time of the famous trial, there is no record of any attorney questioning Mr. Holliday’s right to film the events, the public street, or the police officers involved. To be clear, though evidentiary arguments were raised as to the film’s admissibility as evidence, no record exists of arguments made at trial as to the (im)propriety of the recording itself as an activity.

Ten years after the Holliday tape, the Supreme Court noted the useful­ness of videotapes of alleged police brutality incidents in Saucier v. Katz.12 In that case,13 plaintiff’s recollection of which officers pushed or shoved him was supported by a television newscast’s footage, which included video of the police loading the suspect Katz into the vehicle. The videotape showed that the officer on the passenger side of the van used force, not the officer on the driver’s side of the van. The court stated:

Katz’s reluctance directly to charge Saucier with pushing or shoving is under­standable in view of a television news videotape of the episode Katz presented as an exhibit to his complaint. The videotape shows that the shove, described by Katz as gratuitously violent, came from the officer on the right side of the police van, not from the officer positioned on the left side. It is undisputed that the officer on the right is Parker, the officer on the left, Saucier.”14

The value of recording police activity is indisputable. Not only can it protect the public by indelibly documenting police behavior, it can likewise protect the police from exaggerated, fabricated, or unfounded claims of police brutality.

Explanation of analytical framework

The prevailing framework that we propose for citizens interacting with the police is rooted not in civil rights law, but in the employment relationship. It is here that we find the most compelling argument for citizen surveillance of the police.This is not a matter of whether citizens can engage in surveillance of the police force; it is a matter of whether police, as employees, can be held accountable by their employers (the citizenry).

Police are employees of the taxpayers; the streets they patrol are work­places furnished by the taxpayers. The weapons, walkie-talkies, flashlights, and vehicles they use are assets purchased by the taxpayers. These taxpayers should be able to monitor the behavior (or misbehavior) of these employees, the events (ordinary and extraordinary) occurring in the police workplace, and the use (or misuse) of these assets. The citizen can observe his or her other employees—the man collecting the garbage in the alleyway, the woman collecting the tolls at the bridge, the politician explaining why he should be re-elected. It is unclear at best why police officers should be treated differently from the taxpayer’s other employees or why the citizen’s right to supervise (or scrutinize) the work being done on his or her behalf should be diminished in the presence of one particular type of public employee.15

While we recognize that the role of police as investigators and (occasionally) adversaries of their employers is unusual, it is not sui generis. Other actors drawing remuneration from the public purse (Federal Bureau of Investigation agents, federal and state prosecutors, building inspectors, Internal Revenue Service auditors, patent examiners, and so forth) successfully reconcile their occasionally-adversarial position to the citizens who employ them while em­bracing processes allowing accountability, appeal, review, and transparency.

A circuit split in the making: pedigree and problems

While no circuit court has held that there is no right to photograph or record police officers as they go about their duties, some have ruled the right is not clearly established. This is problematic, in that unless the right to record the police is clearly clearly established,16 the police violating this right are entitled to qualified immunity protection and hence cannot be sued.17 The right to record the police in such jurisdictions becomes toothless, as Judge Gerald A. McHugh writes in Gaymon: “Suffice it to say that dismissing this Complaint at the pleading stage given the record before me would risk rendering the Bill of Rights meaningless.”18

The Third Circuit is likely to be the next battleground for the question of a right to record police officers as they go about their business. In July 2015, a district court judge19 in Philadelphia ruled a case could move forward involving the arrest of a bystander because she recorded police activities in the absence of guidance from the Third Circuit on the issue.20 While the courts provide “breathing room” for officers to make “reasonable but mistaken judgments” about legal questions, the reasonableness of these mistakes is a valid ques­tion.21 Video footage and other evidence may help clarify the reasonableness of officers’ actions and give context to officers’ decisions.22

The District Court in Pennsylvania appeared to root its decision in a theory similar to our own, that auditing the performance of police officers as public employees and public servants is central to the role of the citizen, even in the context of an adversarial scenario between a citizen and police, such as an arrest.23 Citing Losch, that court notes police use of “a criminal action to penalize the exercise of one’s First Amendment rights is a [Constitutional] deprivation.”24 Regarding the importance of video recordings of police ac­tivities, the District Court in Pennsylvania noted, “Videotapes by citizens have proven to be indispensable in bringing to light instances where police unfortunately misused their power.”25 At oral argument in Gaymon, defense counsel (representing the police officers who arrested Gaymon and Purnell for videotaping and insisting that they had the right to videotape) struggled to defend the officers’ actions and did not invoke any arguments as to the officers’ privacy interests while performing their duties:26

The Court: And you would agree with me that standing inside on one’s porch simply videotaping, that could not be considered disorderly conduct by any reasonable definition, could it, sir?

[Defense Counsel]: If [a person is] standing inside [his or her] home and vid­eotaping outside, no, I don’t think so… 26

But the locus of the porch, though helpful to plaintiff Gaymon and fre­quently referenced by Judge McHugh, is not a necessary ingredient to reach this result. The Third Circuit dealt with the pertinent question, albeit in a slightly different context, years ago in Kelly v. Borough of Carlisle.27 We call attention to the fact that, in that case, the Third Circuit, referencing Pennsylvania law, noted that even covert recordings of police officers would be allowable.28 However, this change in interpretation is rapid: At least one judge has found the right to record police officers’ activities in public was not clearly established as recently as 2011.29

Meanwhile, the Second Circuit’s silence on this issue forced District Court judges in New York to decide, with little applicable precedent, whether it was permissible for a mix of professional and amateur videographers to create vid­eos of police activity during the Occupy Wall Street protests. Judge P. Kevin Castel30 ruled that a right to record police exists as they perform their duties.31 He invoked a First Amendment framework, concluding, “a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.”32

Particularly interesting is the intersection of the heightened privacy interest in the plaintiff’s home with the question of whether there is a right to record police activity as in Gaymon. Results alternative to the one in Gaymon would lead to a special status for police officers – when a police officer wandered into a home security camera’s view and objected to its presence, the homeowner would potentially be in violation of the law (even if the camera had existed for years and even if the homeowner didn’t intend to film police activity). Judge McHugh goes further than to point out this single unusual outcome, asserting, “officials can still be on notice that their conduct violates established law . . . in [new] factual circumstances [whether or not their behavior or misbehavior is being recorded].”33

When a person arrested for videotaping counters that the arrest itself is illegal, thus insisting the videotaping was not illegal, the police officers cannot make an arrest on other grounds (such as disorderly conduct) simply because the officers dislike the arrestee’s observation.34 A citizen’s observation that a police officer’s conduct is improper cannot itself be disorderly conduct or interference with police operations.35 Nor can a bystander recording an arrest be detained for offering commentary on the police activities, police procedural errors, or police violence he or she witnesses while recording.36 Simply because the statements or opinions offered by the person videotap­ing may annoy or perturb the officers is not sufficient to make voicing those statements or opinions a crime.37

The current state of affairs is that videotaping or otherwise recording police activities remains a risky activity in some jurisdictions, particularly those where a savvy officer may recognize no clearly-established right to record has been found (and hence qualified immunity holds38).39

The framework in theory and as applied

Rather than adopting First Amendment40 or Due Process41 arguments for the right of citizens to record the behavior of police officers for later scrutiny, we adopt a theory finding this right in the employment relationship. Citizens employ the police and provide the vehicles, firearms, computers, and handcuffs that allow the police to do their work. Citizens also provide more pedestrian support for police work, from laundering soiled police uniforms to paying for the email systems and websites police officers use to communicate with the community.

While this employment framework is a somewhat novel argument in the context of modern American jurisprudence, it is hardly without precedent. Its patrilineage can be traced to Juvenal’s most famous quotation (Quis custodiet ipsos custodes?), Plato’s comments on the duties of the citizen, and Cicero’s concerns as to the monopoly on violence. Taking these in turn, Juvenal’s oft-quoted passage (originally applied to guarding the purity and monogamy of wives),42 taken to its logical end, suggests that a person’s actions (or restraints from action) must be governed by his or her own compass rather than by others. Plato’s Republic suggests at several points that the misuse of power against the citizen is one of the evils against which society must stand watch43—this threat of tyranny risks harm to an “upright citizen” who must both endure and subsidize scrutiny. Cicero commented often on the dangers of delegating a right to violence to the police and the failure of restraint where violence is available.44

In Plato’s vision of the ideal society, the Guardians (who protect society) are employees of the citizenry and hence accountable to them – yet, the Guardians are also empowered to exert power over the citizens, even using violence. In the United States, there is no question that the police are the employees, directly or indirectly, of the taxpayer. This alloys with Plato’s concept but stands in contrast to Sir Robert Peel’s ideal45 in which the citizens are the police (in essence, the citizens police each other with no delegation of the right to violence). And, in the United States, employers enjoy broad rights in monitoring and controlling how employees use the assets provided to them. Misuse, when identified, can be recorded by the employer for later use in human resources disputes,46 civil litigation,47 or even as evidence in a criminal matter.48

Courts have consistently held that employers enjoy broad latitude in investi­gating the misuse of resources by their employees. By analogy, citizens should enjoy similarly broad latitude in investigating the performance (or non-perfor­mance or mis-performance) of duties by their employees in the police force.

Most police officers are not stealing from the public purse, but the of­fense need not rise to the level of embezzlement for employer investigation of employees to be appropriate and allowable. The law allows for substantial and invasive investigation of the employer’s concerns of employee misuse of resources.49 For thirty years, it has been established that public employees (and police officers are public employees) enjoy only a limited expectation of privacy when they are going about their duties—this includes when securing, or investigating improper use of, state property.50 A police officer’s improper or unnecessary use of force against suspects, unwarranted searches, or harass­ment of civilians often involves state property – a firearm, a Taser,51 a motor vehicle, a flashlight, a melee weapon,52 and so on. This is not to mention the taxpayers’ purchase of the officer’s badge itself, entitling the officer to act properly (or improperly) with the authority of the State. In investigating the use (or misuse) of state property, the observation of, recording of, and audit of a police officer’s use of state property is proper. Citizens should feel free to – and empowered to – monitor police behavior (or misbehavior) to ensure police personnel and property are used appropriately.

This right to observe, monitor, and audit the police as employees of the citizenry is especially important when police officers are in public, in uni­form, representing the government. The courts have long recognized that interactions between police and the citizenry often happen in public view.53 To the extent that police interact with the public in plain view of onlookers, the police cannot argue the street suddenly becomes the police officer’s “of­fice” or place with an expectation of privacy.54 If a court were to hold55 that a police officer can suddenly expect his or her conduct to be private on the street, when no civilian on the same street moments earlier could invoke or assert an expectation of privacy, it would be counterintuitive at best and would seem to run counter to an overarching cultural expectation that the street is a public place subject to observation.56

There is no doubt or question as to whether a citizen has the ability and right to observe the public way (for which he or she paid) and to record (through writing, photography, film, or even poetry) the things he or she observes in plain sight, even crimes.57 No interpretation – whether rooted in the Fourth Amendment or other frameworks – adopted by the courts suggests a person, police officer or not, has a heightened expectation of privacy working in the street, moving upon the public way, or in view of bystanders who can spec­tate without trespassing.58 Even things on private land, beyond the bounds of the public way, are vulnerable to the citizen’s wandering eye and casual scrutiny. One may walk down the sidewalk while noticing his neighbor’s new automobile parked in a private drive or examine the home next door’s lawn and compare its greenness to her own lawn’s without offense or tort or crime. Similarly, a citizen should be able to observe police roving around the neigh­borhood, performing their duties, or interacting with his or her fellow citizens.

To reach any other conclusion, one must adopt the view that a citizen’s ability to observe and record his or her surroundings is limited by the mere presence of a police officer. If true, the operative mechanism would be sui generis in U.S. law. If, when a police officer is nearby, a citizen enjoys fewer rights to observe (and make records of observations about) his or her sur­roundings, then how would a citizen monitor and audit the performance of the police as his or her employees?59

Proposal to avert a circuit split

Although police officers may enjoy some (very limited) expectation of privacy when performing tasks in their offices,60 this reasonable expectation of privacy diminishes to zero when the police officers venture into the street. The matter to be resolved by the Circuits—and perhaps even the Supreme Court—in the coming years can be bifurcated into two fundamental ques­tions. First, whether a police officer should be able to command a citizen to stop recording or photographing the police officer’s conduct of his or her du­ties. Second, whether, if the citizen does not comply, the police officer can reasonably use force (or threat of force or arrest) to interrupt the recording and detain the citizen.

We suggest, as to the first issue, that a police officer may state his or her preference for a citizen to cease recording or photographing just as a police officer may ask a citizen to talk a bit more loudly or softly or clearly during a non-custodial or pre-custodial61 interaction. However, as to the second issue, just as the citizen’s failure to adjust the volume or enuncia­tion62 of his or her speaking would not itself be grounds for an arrest for disorderly conduct, the citizen’s continued recording or photography is not itself disorderly.

The attitude of police officers around cameras—or belligerence when confronted with cameras, in some cases—may intimidate some videographers and photographers who may discontinue recording, feeling threatened with violence or arrest. This kind of intimidation can be thought of as having a “chilling effect”63 on listening, rather than on speaking.64 For instance, in a 2013 incident in Charlotte, North Carolina, a man was videotaping police as they performed their duties at a public campground.65 A Darlington County deputy approached the civilian observer and asked, “Do you want to go to jail?” Whether the deputy was actually intending to affect an arrest is irrel­evant; as the Court memorably observed in NAACP v. Button that “the threat of sanctions may deter . . . almost as potently as the actual application of sanc­tions . . . .”66 Then, without further warning, the deputy reportedly ripped the camera out of the bystander’s hands and shoved the bystander to the ground. This kind of harassment, intimidation, and unprofessional behavior may not always be prevented by the presence of a camera, but the utility of a recording after the fact cannot be overstated.

Conclusion

We urge the adoption of a sweeping right—rather than limited privilege —to record police as they go about their duties in public places or in public view. We further urge the creation of a right to record police on the recorder’s private property or on other private property visible from the public way without trespass. We ask that courts find this right not in the First or Fourth Amendments, though both lineages of jurisprudence inform questions as to recording, but in the unique employment relationship between members of the public and the police force.

This approach would lead to the same result in the Gaymon and Higgin­botham cases, but would both unify and simplify the logic applied in those cases and in other similar fact patterns. Further, it would root the right to record police operations in the oversight of the police by the public rather than framing the recording of police as an exercise of First Amendment rights to film in public. While we believe that the recordings at issue in Gaymon and Higginbotham and other similar cases are protected by the First Amendment, the issue of recording police officers on duty embraces a loftier goal of public servant accountability. It would also elevate the activity of recording police officers from an annoyance about which officers can complain to a mechanism for public examination of police activity; in other words, police should no more be able to complain about being recorded than they should be able to complain about having their marksmanship or physical fitness scrutinized.

The police officers and their equipment are public employees and public property, respectively. They are all funded by the public purse. For citizens to produce and share photographic, cinematic, and other records of their (and fellow citizens’) interactions with their employees and public servants should not only be permissible, but encouraged. As citizens do not directly manage the police force, they enjoy power over elected law enforcement officials (and, by extension, their many subordinates). As the recent high-profile events in Ferguson, Missouri illustrate, people can – and will – take action to pres­sure these managerial intermediaries to alter the behavior, composition, and procedures of the police force.

In sum, we urge that courts to recognize that employers (citizens) have the right to make records to assist in affirmatively discouraging or subsequently investigating the misconduct of their employees (police officers), the misuse of their property (police cars, firearms, etc.), and the risk that the enterprise in which they have invested (the police department) may fall into disrepute. It is fascinating and tragic that this employment relationship – one that has existed for thousands of years in a multitude of societies – is, in America, among the hardest to manage. We suggest finding a right, and perhaps even a responsibility, to monitor police in this employment relationship clarifies and simplifies the relationship between citizen and officer and recognizes the citizen as a stakeholder in the business of policing the community while offering a consistent and easier-to-apply framework to judges faced with an ever-more-diverse range of fact patterns.

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NOTES

  1. Compare Gaymon v. Borough of Collingdale, No. 14-5454, 2015 U.S. Dist. LEXIS 93014 (E.D. Pa. July 17, 2015), with In re Sharp v. Baltimore City Police Dep’t, No. CCB-11-2888, 2013 U.S. Dist. LEXIS 58111 (D. Md. Mar. 1, 2013).
  2. J. Marshall, writing for the majority in Berkemer v. McCarthy, 468 U.S. 420 (1985).Berkemer v. McCarty, 468 U.S. 420, 438 (1984).
  3. For perhaps the most famous account of brash mistreatment of a landlord by George III’s troops, see account of King George’s troops’ treatment of the landlord character in Noyes’s The Highwayman. Alfred Noyes, The Highwayman, in Forty Singing Seamen and Other Poems (1907) 35 (Kessinger Publishing 2010) (1907) (“They said no word to the landlord. They drank his ale instead. But they gagged his daughter, and bound her, to the foot of her narrow bed … They had tied her up to attention, with many a sniggering jest … ‘Now, keep good watch!’ and they kissed her.”).
  4. Distrust of the police, particularly in Boston’s North End, has existed since colonial times and endured into the Twentieth Century. See William Foote Whyte, Street Corner Society: The Social Structure of an Italian Slum 202-35 (University of Chicago Press 1993) (1943).
  5. London Metropolitan Police Service, Constables’ Manual (London, Clerkenwell Publishing, 1st ed. 1829) (on file with the Social Sciences Library of the London School of Economics).
  6. See, e.g., Morgan Leigh Manning, Less Than Picture Perfect: The Legal Relationship Between Photographers’ Rights and Law Enforcement, 78 Tenn. L. Rev. 105 (2010).
  7. See, e.g., today’s camera phones feature video, photography, and audio recording capabili­ties.
  8. See, e.g., Ming v. A.E.G. Mgmt., No. 15-CV-643 (E.D.N.Y. Aug. 26, 2015), available at http://cases.justia.com/federal/district-courts/new-york/nyedce/1:2015cv00643/366017/16/0.pdf?ts=1440689747.
  9. See, e.g., dashboard cameras are used by a variety of police departments and other agencies.
  10. See, e.g., McGowan v. Miller, 109 F.3d 1168 (7th Cir. 1997).
  11. George Holliday created video footage of the Rodney King incident using a home cam­corder.
  12. Saucier v. Katz, 533 U.S. 194, 211-12 (2001).
  13. Importantly, this case is cited here only for its fact pattern. For context as to its jurispru­dential lineage, see Pearson v. Callahan, 555 U.S. 223 (2009); see also Morse v. Frederick, 551 U.S. 393 (2007).
  14. Saucier, 533 U.S. at 212 (internal citations omitted).
  15. The Department of Justice seems to agree. See Statement of Interest of the United States at 2, Sharp v. Baltimore City Police Dept. et al., No. 1:11-cv-02888-BEL (D. Md. Jan. 10, 2012) (“[T]he United States has a strong interest in ensuring that citizens’ rights under the First, Fourth, and Fourteenth Amendments are not diminished when they record police carrying out their duties in a public setting.”).
  16. “Clearly established” is, in this context, a term of art drawn from Bivens and clarified in Harlow. Compare Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) with Harlow v. Fitzgerald, 457 U.S. 800 (1982).
  17. In this calculation, a judge properly accepts all plaintiff factual allegations as true and draws all reasonable inferences in plaintiff’s favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
  18. Gaymon v. Borough of Collingdale, No. 14-5454, 2015 U.S. Dist. LEXIS 93014, at *2 (E.D. Pa. July 17, 2015).
  19. Gaymon v. Borough of Collingdale, No. 14-5454, 2015 U.S. Dist. LEXIS 93014 (E.D. Pa. July 17, 2015).
  20. Id.
  21. See George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013).
  22. See, e.g., Wayne Drash, The Killing of Laquand McDonald: The Dashcam Video vs. Police Accounts, CNN (Dec. 19, 2015, 12:32 AM), http://www.cnn.com/2015/12/17/us/laquan-mcdonald-video-records-comparison/.
  23. A suspect’s decision to raise questions as to the propriety of his or her own detention is not, in itself, a criminal act. See Norwell v. City of Cincinnati, 414 U.S. 14, 16 (1973).
  24. Gaymon, 2015 U.S. Dist. LEXIS 93014, at *10 (citing Losch v. Borough of Parkesburg, Pennsylvania, 736 F.2d 903, 907-08 (3d Cir. 1984)).
  25. Gaymon, 2015 U.S. Dist. LEXIS 93014, at *1 (emphasis added).
  26. Transcript of Oral Argument at 9, Gaymon v. Borough of Collingdale, No. 14-5454, 2015 U.S. Dist. LEXIS 93014, at *2 (E.D. Pa. Apr. 10, 2015).
  27. See generally Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010); id. at 258.
  28. “Allowable” here means not in violation of the applicable Wiretap Act.
  29. See Montgomery v. Killingsworth, No. 13-256, 2015 WL 289934 (E.D. Pa. Jan. 22, 2015).
  30. Marom v. City of New York, No. 15-cv-2017, 2016 U.S. Dist. LEXIS 28466 (S.D.N.Y. Mar. 7, 2016).
  31. See, accord, Robinson v. Fetterman, 378 F. Supp. 2d 534, 538-42 (E.D. Pa. 2005) (finding right to videotape police in First Amendment). Specifically, the Robinson court discussed that “[i]n sum, there can be no doubt that the free speech clause of the Constitution pro­tected [a citizen] as he videotaped the [police] on October 23, 2002.” Id. at 541.
  32. Higginbotham v. City of New York, 105 F. Supp. 3d 369, 381 (S.D.N.Y. 2015).
  33. Gaymon, 2015 U.S. Dist. LEXIS 93014, at *6 (quoting Hope v. Pelzer, 536 U.S. 730 (2002)).
  34. See, e.g., in the Gaymon case, after police officers asserted to a citizen, Ms. Purnell, that videotaping the police was a violation of the Wiretap Act, Ms. Purnell replied that she did not believe videotaping the police from inside her home violated that statute. Gaymon, 2015 U.S. Dist. LEXIS 93014, at *2. Ms. Purnell, along with her daughter and husband, politely told the policeman he was incorrect and that Ms. Purnell had a right to record. Id. at *3. Police then argued that Ms. Purnell’s statement that the police acted incorrectly as a matter of law was, in itself, disorderly conduct. See id. at *3. The police threatened both she and her daughter with their Tasers (which they did not activate) and then arrested both women for disorderly conduct. Id. at *4.
  35. For examples of charges often used to discourage or intimidate those recording police operations, see Buehler v. City of Austin et al., No. A-13-CV-1100-ML (W.D. Tex. Feb. 20, 2015), available at http://cases.justia.com/federal/district-courts/texas/txwdce/1:2013cv01100/668231/120/0.pdf?ts=1424546473 (“On January 1, 2012, a magistrate for the Municipal Court of Travis County, Austin, Texas issued an arrest warrant finding probable cause to arrest Buehler for third-degree felony harassment of a public servant, in viola­tion of [felony statute]. During the January 2013 term, a grand jury no-billed the charge for felony harassment of a public servant, and indicted Buehler for the lesser charge of knowing failure to obey a lawful order of a peace officer, a [misdemeanour], in violation of [misdemeanor statute], for failing to put his hand behind his back. In October 2014, a jury trial was held on the charge of failure to comply with a lawful order of a peace officer. On October 23, 2014, the jury found Buehler not guilty of the charge.” (internal citations omitted)).
  36. See Norwell v. City of Cincinnati, 414 U.S. 14, 16 (1973) (per curiam) (“Surely, one is not to be punished for non[-]provocatively voicing his [or her] objection to what he [or she] obviously felt was a highly questionable detention by a police officer.”).
  37. Colten v. Kentucky, 407 U.S. 104, 111 (1972) (White, J. and Marshall, J. dissenting) (ad­dressing an unrelated procedural issue (Id. at 122)).
  38. Unfortunately, qualified immunity holds even in jurisdictions where filming is protected but where an officer makes a genuine mistake of law or fact as to the filming. See Butz v. Economou, 438 U.S. 478, 507 (1978) (noting qualified immunity includes “mere mistakes in judgment, whether the mistake is one of fact or one of law”).
  39. It will no doubt be tempting for courts considering these issues to perform a “merger” of issues as identified (and unwound on ultimate appeal) in Saucier v. Katz, 533 U.S. 194 (2001). Instead, we suggest the qualified immunity issue must be examined in isolation from the recording or filming issue, just as it was examined properly separately from the excessive force issue in Saucier.
  40. See Glik v. Cunniffe, 655 F.3d 78, 85-87 (1st Cir. 2011).
  41. See G.H. Reynolds & J.A. Steakley, A Due Process Right to Record the Police, 89 Wash. U. L. Rev. 1203 (2012).
  42. Juvenal, Satire VI lns. 347-48 (date disputed).
  43. Perhaps most notably, Plato, Republic Book VIII, 565c (380 BCE) (“This and no other is the root from which a tyrant springs; when he first appears he is a protector.”).
  44. See, e.g., Marcus Tullius Cicero, Pro Milone Ch. IV, § 11 (52 BCE) (“Justice stands mute in the midst of arms.”).
  45. See Joseph Goldstein & J. David Goodman, A London Guide for 1 Police Plaza, N.Y. Times (Apr. 15, 2014), http://www.nytimes.com/2014/04/16/nyregion/alondon-guide-for-1-police-plaza.html.
  46. See Rachid v. Jack In the Box, Inc., 376 F.3d 305 (5th Cir. 2004) (employer monitored employee email messages and discovered message it believed violated company policy, leading to human resources process through which employee in question was replaced).
  47. See Intel v. Hamidi, 71 P.3d 296 (Cal. 2003) (employer maintained records of employee’s misuse of company email system for subsequent trespass-to-chattel claim).
  48. For information as to how and why this does not violate the Wiretap Act, see Jarrod J. White, E-Mail @Work.com: Employer Monitoring of Employee E-Mail, 48 Ala. L. Rev. 1079, 1083 (1997); accord United States v. Steiger, 318 F.3d 1039 (11th Cir. 2003); see generally Wiretap Act, 18 U.S.C. § 2515 (1968 and as subsequently amended); see also 18 U.S.C. § 2701 (1986 and as amended).
  49. See, e.g., United States v. Forcelle, 86 F.3d 838 (8th Cir. 1996) (Cretex, the employer, noticed and made records of employee’s misuse of company funds; this was later used as evidence in the criminal prosecution of the same employee).
  50. See, e.g., Chenkin v. Bellevue Hospital Center, New York City Health & Hospitals Corp., 479 F. Supp. 207 (S.D.N.Y. 1979) (checking bags and parcels carried by employees to re­duce theft of hospital supplies); cf. O’Connor v. Ortega, 480 U.S. 709 (1987) (search and seizure of items from employee’s desk and office).
  51. TASER, Taser, TASER CEW, TASER Conducted Electrical Weapon (CEW), and related marks are all trademarks of Taser International Inc.
  52. “Melee” weapons include “Billy” clubs, batons, riot shields, bats and bars of various types, and so forth.
  53. See fact patterns central to Carroll v. United States, 267 U.S. 132 (1925) and its progeny.
  54. Cf. Katz v. United States, 389 U. S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protec­tion.”).
  55. The authors failed to find any court that has held such.
  56. See Oliver v. United States, 466 U.S. 170, 178 n.8 (1984) (Expectations of privacy at home and at work are both “based upon societal expectations [or norms.]”).
  57. For a graphic anthropological example, see Philippe Bourgois & Jeffrey Schonberg, Righteous Dopefiend (2009) (recording, through writing and photographs, habits and identities of people using illicit intravenous drugs in public places).
  58. See Beck v. Ohio, 379 U.S. 89 (1964); Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959); United States v. Di Re, 332 U.S. 581 (1948); Carroll v. United States, 267 U.S. 132 (1925).
  59. For particularly compelling examples of police performance being successfully monitored by cameras, and audited by citizens and media after the fact, see videos of incidents in­volving Walter Scott, who was shot by an officer in Charleston, South Carolina in 2015; Jecque Howard, who was beaten by an officer in Chicago, Illinois in 2015; an unnamed minor, who was allegedly assaulted by Officer Ben Fields in a classroom at Spring Valley High School in Columbia, South Carolina in 2015; Karolina Obrycka, who was beaten by an off-duty officer in Chicago, Illinois in 2007. Videos of these incidents are available free of charge on YouTube.com and on websites of numerous news agencies.
  60. For a detailed account of precisely what expectations of privacy apply in public or gov­ernment settings, see the New Jersey v. T.L.O.’s predecessors in jurisprudence. See New Jersey v. T.L.O., 469 U.S. 325, 334-35 (1985) (as to school officials); Camara v. Municipal Court, 387 U.S. 523, 528 (1967) (as to building inspectors); Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-13 (1978) (as to OSHA inspectors).
  61. See Florida v. Bostick, 501 U.S. 429, 434 (1991).
  62. This is a common fact pattern. See, e.g., Terry v. Ohio, 392 U.S. 1, 7, 33 (1968) (“McFad­den asked Terry his name, to which Terry ‘mumbled something.’ Whereupon McFadden, without asking Terry to speak louder and without giving him any chance to explain his presence or his actions, forcibly frisked him.”).
  63. See “chilling effect” lineage of First Amendment jurisprudence, e.g., NAACP v. Button, 371 U.S. 415, 432-33 (1963); cf. Baggett v. Bullitt, 377 U.S. 360, 378-79 (1964); Bush v. Orleans School Board, 194 F. Supp. 182, 185 (1961), aff’d sub nom, Tugwell v. Bush, 367 U.S. 907 (1961); Gremillion v. United States, 368 U.S. 11 (1961).
  64. The later broadcast of relevant footage would, however, be speech. Footage never captured due to police intimidation, or aborted by police intervention, would essentially be speech chilled ex ante.
  65. See Man Files Complaint After Darlington Country Deputy Snatches Camera Threatens Arrest, wistv.com, http://www.wistv.com/story/22670489/wis-investigates-man-files-complaint-after-darlington-county-deputy-snatches-camera-threatens-arrest (last visited Sept. 12, 2015).
  66. NAACP v. Button, 371 U.S. 415, 433 (1963).

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Karl T. Muth is a Lecturer at Pritzker School of Law, Northwestern University. In addition to teaching law, he also teaches Economics, Organizational Behavior, Public Policy, and Statistics at Northwestern. This paper focuses on an issue raised in a lecture Prof. Muth delivered in 2014 on competing methodologies and theories of oversight for law enforcement officers (including cameraphones). Nancy Jack is a judicial law clerk at the Illinois Supreme Court from 2013 to present. She was also a law clerk at the Illinois Appellate Court from 2000—2013. The authors would like to thank colleagues from a variety of law schools faculties for their input, suggestions, and thoughts regarding earlier drafts.

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