Videotaping Police — The Issue of Qualified Immunity

“May I legally record (video and audio) police in public?” Yes.

“May I continue recording, even after they order me to stop?” Yes.

“Will I be arrested and jailed if I do continue?” Yes.

“Will all charges be dropped?” Yes.

“Will I have a permanent criminal arrest record as a result?” Yes.

“Will I then be able to sue for false arrest?” No.

“So the police can arrest me, handcuff me, drag me to jail, lock me up, and give me a permanent criminal arrest record for doing something so completely legal that no prosecutor would ever file charges, and I would still have no legal recourse?” Yes, that is correct. This essay explains how justice became so strange.

The strangeness is because laws are changing due to the advent of video-recording cellphones. Laws in transition produce contradiction and mismatch between different authorities.

(Incidentally, legal authorities have contradicted each other throughout U.S. history. Readers of Backintyme’s research on the history of U.S. “racial” classification will recall that it took a century—from 1808 to 1910—for the justice system of the French-speaking Gulf Coast to accept the newfangled Yankee notion that Coloured and Negro meant the same thing. During that century, hundreds of African-American defendants were found not guilty of violating anti-Black laws because judges and juries alike consistently ruled that they were Coloured, not Negro. This was especially true before the Civil War, when Creoles of Colour were among the region’s wealthiest and most powerful slave owners. The mismatch ended with the start of Jim Crow era. See Jim Crow Triumph of the One-Drop Rule.)

Two kinds of mismatch and inconsistency appear regarding videotaping police: one between police and prosecutors, the other between state and federal laws.

Mismatch Between Police and Prosecutors

One the one hand, many if not most police officers anywhere detest being recorded when they use force. Law-abiding officers know that creative video editing can make even the most justified use of force necessary to protect the public, appear to be excessive and cruel. At the same time, thugs in blue uniforms, who rely on their lies being believed in court, will do anything to stop a video from revealing their perjury.

The easiest way for an officer in Florida to stifle video recording is by ordering the person to stop or they will be arrested for felony violation of statute 934.03 (wiretapping without both parties’ consent). Then, when the person continues recording, to arrest them for that crime, along with a list of additional bogus charges (resisting, obstructing, interfering, disobeying, etc.).

On the other hand, prosecutors are answerable to the public. Most prosecutors know that statute 934.02(2) explicitly makes it legal to record public events where no one has an expectation of privacy, and that Florida as well as Federal courts have consistently held that on-duty police officers acting in public cannot have “expectation of privacy”, no matter what they falsely claim. They also know that any prosecutor who constantly spends time and public money on illegal cases that are thrown out by judges, will likely lose his or her job. Worse yet, any prosecutor who consistently ignores or destroys evidence of police misconduct will also eventually be fired.

The result of the police-versus-prosecutor mismatch? Over the past twelve years (since 2000), many Floridians have been arrested and jailed for recording police after being ordered not to. Not one has ever been charged (See for example here, here, here, and here.) Every case was dropped by the prosecutor before charges were filed. Consequently, Florida sees a constant stream of people being arrested and jailed by police, but then being released without charge by prosecutors.

The police are happy with the situation because it achieves their goal of scaring people away from videotaping. The police can inflict expenses, pain, humiliation, loss of reputation, employment and social status, and perhaps even physical injury, on citizens brave enough to record them. Permanent criminal arrest records will then follow the videotapers for the rest of their lives. The police can do this at negligible risk to themselves.

Prosecutors are happy with the situation because they can point out that they obey the laws. It is true that it may be weeks, months or even years before they drop the “wiretapping” charges as well as the associated bogus add-ons, but they cannot be accused of prosecuting someone illegally. Eventually, the charges are always dropped.

“But wait!” you ask, “Can’t I sue them for false arrest?” No, not really. And that leads to the second mismatch: the mismatch between state and federal law.

State Law

In theory, false arrest is a civil tort under Florida law, as well as being a violation of 787.02(1)(a). According to the statute: “The term “false imprisonment” means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” This means that a person with lawful authority (such as a police officer) cannot, by definition, commit false arrest.

Also, according to Florida statute 768.28, on-the-job police officers are explicitly immune to lawsuit “unless [they] acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” In practice, it is virtually impossible to prove “malicious purpose” or “wanton and willful disregard” against an officer’s sworn statement of “good intentions”.

The mere fact that an arrest is proven to be illegal and without merit does not suffice to prove “malicious purpose” or “wanton and willful disregard”. As the Florida Third District Court of Appeals ruled in Miami-Dade vs. Asad, January 25, 2012:

Probable cause is evaluated from the viewpoint of a prudent cautious police officer on the scene at the time of the arrest. It is axiomatic that hindsight may not be employed in determining whether a prior arrest or search was made upon probable cause. Events that occur subsequent to the arrest are irrelevant in a false arrest claim because whether the plaintiff was falsely arrested turns on whether there was probable cause at the time of the arrest, and subsequent events cannot remove the probable cause that existed at the time of the arrest.

Furthermore, even if “malicious purpose” or “wanton and willful disregard” could be proven, 787.02 forbids punitive damages and sets an upper limit on actual damages that is inadequate to compensate a plaintiff’s attorneys. Consequently, suing for false arrest in a Florida court is usually a costly exercise in futility.

Federal Law

The apparent solution for the person falsely arrested is to sue under 42 USC 1983. This federal law compels a state to pay damages (regardless of the state’s own laws) when someone acting under state authority violates a citizen’s constitutional rights.

Originally passed in 1871 and dubbed “The Ku Klux Klan Act”, this law steps in when state courts fail. As the U.S. Supreme Court explained in 1961, 42 USC 1983 has three purposes: (1) “to override certain kinds of state laws” (2) to provide “a remedy where state law was inadequate”, and 3) “to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.”

Nowadays, 42 USC 1983 is often invoked to sue for damages resulting from a police officer stopping a videotaper (violation of the First Amendment) and falsely arresting one (violation of the Fourth Amendment).

There are three obstacles to suing a police officer or his agency for false arrest under 42 USC 1983. First, federal Civil Rights attorneys are in high demand and low supply. You may have to pay an advance approaching $100,000 to retain an experienced firm, with no guarantee that you will win. (Suing under 42 USC 1983 may be easier if U.S. society sees you as “Black”, because the Civil Rights Division of the U.S. Justice Department often steps in to fund lawsuits in such cases.)

Second, actual damages may be less than the cost of litigation. How much money did a day or two in jail actually cost you? Can you prove it?

Qualified Immunity

Third, police officers enjoy “qualified immunity”. This means that your federal lawsuit under 42 USC 1983 will be dismissed unless you can show that the officer violated “clearly established constitutional rights of which a reasonable person would have known.”

And so, the basic question comes down to this. Is the right to videotape police a clearly established constitutional right of which a reasonable person would have known? If so, you have a case. If not, you just spent your life savings for nothing. As it turns out, different federal circuit appeal courts have ruled differently on this.

Every federal appeals court without exception has ruled that you have a constitutionally guaranteed right under the First Amendment to videotape police in public. There is no question about this [e.g.: Smith v. Cumming (2000), Kelly v. Carlisle (2010), Glick v. Boston (2011), Abella v. Miami Lakes (2011), ACLU v, Alvarez(2012)]. In the Abella case, which is directly applicable to Florida, the court opined specifically about videotaping with audio, “That citizens may photograph police officers in public places has thus been the law in this Circuit for over 15 years.” Nevertheless, some courts have also ruled that, although it is a right clearly guaranteed by the Constitution, it is not a right that “a reasonable person would have known”, and so you cannot sue for false arrest [for example, the Kelly case].

How can a police officer become ignorant of citizens’ right to videotape, thus making himself immune to lawsuit? The most common explanation given by federal judges is that the police agency trained them wrong. In other words, an officer given improper training by his superiors has qualified immunity and cannot be sued for false arrest. [The Kelly case explains this doctrine in depth.]

It Pays for Police to Have Bad Training

Consequently, Florida is in the odd situation that a superior police officer can immunize subordinates from false arrest lawsuit under 42 USC 1983 by (wrongly) teaching them that they may arrest anyone who videotapes police against their will. The arresting officers are thus shielded by qualified immunity. The lying superiors can also claim immunity because they did not make the arrest. The dual immunity applies even if it were proven beyond doubt that the arrest was a violation of the Consitution.

This bizarre situation–that ignorant police officers are immune to false arrest lawsuit but knowledgeable ones are vulnerable–has resulted in a mad scramble by police agencies throughout the state to publish training brochures that misstate the law.

For example, “Legal Bulletin 20-12” by the Palm Beach County Sheriff’s Office was distributed to police agencies throughout Florida. It teaches officers that they are within their legal rights to arrest citizens who record them if they specifically state they do not wish to be recorded. Virtually every sentence of the bulletin is in error:

  • Bulletin: “[The videotaper] is seeking to provoke the officer into an inappropriate response.” False; the videotaper is exercising a clearly established First Amendment right, most likely recording police misconduct.
  • Bulletin: “LEO should advise the person that the recording of their conversations is a violation of state law.” False; courts have unanimously ruled that police officers acting in public cannot claim a legal right to privacy, and so videotaping them is explicitly allowed under 934.02(2).
  • Bulletin: “LEO should directly and clearly communicate that the individual does not have his/her consent to record their oral communication (thereby asserting privacy rights).” False, no matter what an officer states, police officers acting in public cannot claim a legal right to privacy as per 934.02(2).
  • Bulletin: “LEO should directly and clearly communicate that the failure to turn off the camera (or recording device) will result in a felony arrest.” False; even if the person were secretly recording an off-duty officer in the privacy of the officer’s own home (where privacy would apply), a first offense not for commercial gain is a misdemeanor per Florida statute 934.03, not a felony. And in public, such an arrest would make the officer and agency liable under 42 USC 1983.

The scramble by police agencies to train officers to be ignorant of the law, thereby immunizing them, has triggered an opposite scramble by press association lawyers to publicize the actual laws. They hope that once the general public knows the real law, police officers will find it harder to persuade judges that they were ignorant.

State attorneys have tried to tread a neutral, middle ground. On the one hand, they advise agencies not to arrest people for videotaping police in public. On the other, they teach that officers are at risk only from federal courts, not state courts, thus implying that Florida police need not follow the federal Constitution as long as they are protected by state courts.

Conclusion

Where will it all end? The national trend is moving towards videotapers. As video-recording cellphones proliferate, the number of cases where people are arrested and then turned loose is soaring. The newsmedia increasingly report court rulings that videotaping police in public is a First Amendment right. Eventually, any police officer who claims immunity from false arrest lawsuit because he or she was ignorant of this fact, will be laughed out of court.

When that happens, officers who falsely arrest people and the agencies that enable this by lying to them in training will have to pay. For a while, their insurance companies will cover their misconduct. Eventually, their insurance companies will bail out. Then for a while, their municipalities will raise taxes to cover the civil penalties. Finally, the public will lose patience with politicians who collect taxes to enable false arrests.

In the end, the baseless arrests will stop, the laws will settle into stability once again, and today’s bizarre but temporary situation–where you can be arrested, handcuffed, dragged to jail, locked up, and given a permanent criminal arrest record for doing something so completely legal that no prosecutor would ever file charges, and yet you still have no legal recourse–will fade into an unpleasant memory.

Next Time: To Notify or Not to Notify, That is the Question


NRAlogo

Frank W. Sweet is an NRA-certified firearms instructor who teaches the safe and effective use of handguns for self-defense. He was awarded an M.A. in Civil War Studies in military history from American Military University in 2001. He is the author of Legal History of the Color Line (ISBN 9780939479238), Six Gems of Forgotten Civil War History (ISBN 9780939479023), and of numerous published historical essays. To receive a schedule of his firearms training courses, email to fwsweet@ccwvslaw.org. The information above should not be construed as legal advice.


Other Backintyme sites: Essays on the U.S. Color Line Armed Citizens and the Law
Backintyme Performances YouTube Channel --

Comments are closed.