Federal Appeals Court Reaffirms Your Right To Record Cops, Including Cops At Traffic Stops. Also, Why It's Probably Wise To Do That Surreptitiously
Volokh has the decision here:
This case raises an important question about an individual's First Amendment right to film a traffic stop by a police officer. Carla Gericke attempted to film Sergeant Joseph Kelley as he was conducting a late-night traffic stop. Shortly thereafter, she was arrested and charged with several crimes, including a violation of New Hampshire's wiretapping statute. Gericke was not brought to trial. She subsequently sued the Town of Weare, its police department, and the officers who arrested and charged her, alleging in pertinent part that the wiretapping charge constituted retaliatory prosecution in violation of her First Amendment rights......Based on Gericke's version of the facts, we conclude that she was exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area...
...In Glik, we explained that gathering information about government officials in a form that can be readily disseminated "serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'" Protecting that right of information gathering "not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally." Those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is "police carrying out their duties in public." A traffic stop, no matter the additional circumstances, is inescapably a police duty carried out in public. Hence, a traffic stop does not extinguish an individual's right to film.
...Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them.
The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure -- for example, a command that bystanders disperse -- that would incidentally impact an individual's exercise of the First Amendment right to film. Such an order, even when directed at a person who is filming, may be appropriate for legitimate safety reasons.
It is especially important that we have checks on the power of the police and I urge anyone stopped by the police to record what goes on. That said, I write about this in "Good Manners For Nice People Who Sometimes Say F*ck" (in a section on where you draw the line between politeness and self-incrimination in traffic stops).
It's probably best to turn on your cell phone recorder or video camera and place it discreetly out of sight well before the officer gets to your car. Even the most fair and even-tempered officer is unlikely to be charmed and amused by the notion that he could soon go viral on YouTube.
There are a couple of smart-a -- er gentlefolk who have suggested putting a sticker on the driver's side door that reads:
Karl Lembke at May 27, 2014 8:21 AM
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