Smile, You’re on Camera: The First Amendment Protects Recording the Police

On Monday, July 11th, the Tenth Circuit Court of Appeals denied qualified immunity to an officer sued for First Amendment retaliation based on allegations that the officer obstructed the filming of a traffic stop by standing in front of the plaintiff and shining his flashlight into the camera. Irizarry v. Yehia, No. 21-1247, 2022 WL 2659462 fn. 10 (10th Cir. July 11, 2022). The appellate court recognized a constitutional right to photograph and video record police officers performing their duties, which including the Ninth Circuit, brings a total of seven circuits holding an officer’s violation of this right could result in liability under 42 U.S.C. § 1983.

The Tenth Circuit held that the creation of speech, including photographing and filming, is just as protected under the First Amendment as the dissemination of free speech. Irizarry 2022 WL 2659462 at *3. A major purpose of the First Amendment is to protect open conversation about politics and public affairs. Therefore, the First Amendment also protects news gathering through any lawful means. Considering these priorities, the Court concluded that “[f]ilming the police and other public officials as they perform their official duties acts as ‘a watchdog of government activity’” and is a constitutional right. Id. (quoting Leathers v. Medlock, 499 U.S. 439 (1991).

Under the Tenth Circuit’s recent holding, an officer violates a person’s First Amendment right to film if he or she retaliates by “chill[ing] a person of ordinary firmness from continuing to film.” Id. at *6. “Physical and verbal intimidation can chill speech.” Id. In Irizarry, YouTube journalist Irizarry was filming a DUI traffic stop when Officer Yehia stood in front of Irizarry and shined a flashlight into his camera to obstruct his view. This act alone was a violation of Irizarry’s First Amendment right because such an action “would chill a person…from continuing to film the traffic stop.” Id. Officer Yehia then drove his police cruiser directly toward Irizarry and his colleague, “gunning” at him. Physically hindering filming and driving directly at the two men served no law enforcement purpose. It was obvious that these acts were a retaliation against Irizarry, and therefore, Officer Yehia is not entitled to qualified immunity under § 1983. Id. at *12.

The Ninth Circuit determined this constitutional question back in 1995 with the Fordyce decision. In Fordyce, the Ninth Circuit reversed the lower court’s summary judgment due to evidence of an assault by an officer who tried to dissuade a man from exercising his First Amendment right. Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). The officer tried to prevent the man from filming officers who were controlling a protest. The officer smashed the front of the man’s camera. Due to this evidence, the Court reversed summary judgment and remanded the §1983 claim for trial. Id. at 443. The Ninth Circuit also held and reiterated in several decisions that “[t]he First Amendment protects the right to photograph and record matters of public interest. This includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018).

There are two general exceptions to this rule. First, a person does not have a right to photograph or film if it impedes officers from performing their duties. See Irizarry v. Yehia, No. 21-1247, 2022 WL 2659462 fn. 10 (10th Cir. July 11, 2022). Second, there is no constitutional right to film police activity in a private forum; for example, there is no right to record in a sheriff’s office within a courthouse. Anthony v. Oliva, No. ED CV 12-1369-FMO SH, 2013 WL 1127104 (C.D. Cal. Jan. 29, 2013).

The takeaway from these decisions is this: officers performing their duties in public should not threaten or intimidate anyone photographing or filming them. Expect to be filmed! Unless the situation falls into one of the two exceptions, our best advice to clients is to ignore people who have their phones or cameras out and to maintain a professional demeanor.

New SCOTUS Decision Protects Police From Civil Liability For Miranda Violations

    According to the recent United States Supreme Court decision, criminal suspects cannot sue police officers who fail to give Miranda warnings before custodial interrogations. Vega v. Tekoh, No. 21-499, 2022 WL 2251304 (U.S. June 23, 2022). SCOTUS reversed the Ninth Circuit’s decision, maintaining the standard that a violation of Miranda is not necessarily a violation of the Fifth Amendment.

    Terence Tekoh, a medical worker accused of sexually assaulting a patient, signed a confession during an interrogation conducted by LA County Sheriff’s Deputy Carlos Vega. Vega did not inform Tekoh of his rights under Miranda v. Arizona, 384 U.S. 436. During Tekoh’s trial, his signed confession was admitted against him, but the jury returned a verdict of not guilty. Tekoh then sued Deputy Vega under 42 U.S.C. § 1983 for violating his constitutional rights.

    42 U.S.C. § 1983 states that a person acting under color of state law who “subjects… any citizen of the United States… to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law…” Tekoh argued that a violation of Miranda constituted a violation of the Fifth Amendment right against compelled self-incrimination. In agreement with Tekoh, the Ninth Circuit held that the use of an un-Mirandized statement in a criminal proceeding may support a § 1983 claim against the officer who obtained the statement. However, the United States Supreme Court disagreed and reversed the Ninth Circuit’s ruling.

    In the years following the Miranda decision, the Court has characterized Miranda rules as “prophylactic,” meaning that they are a tool used to safeguard a person’s constitutional Fifth Amendment right. The Miranda rules are not themselves a constitutional right. “Miranda did not hold that a violation of the rules it established necessarily constitute a Fifth Amendment violation. That makes sense, as an un-Mirandized suspect in custody may make self-incriminating statements without any hint of compulsion.” Id. at *1.

    Failing to provide a Miranda admonishment legally differs from violating the Fifth Amendment. The biggest difference between treatment of Miranda violations and Fifth Amendment violations are that the Miranda cases involve a cost-benefit analysis to define the scope of Miranda. For example, an un-Mirandized statement can be used to impeach a defendant’s testimony, but an involuntary statement in violation of the Fifth Amendment cannot. Harris v. New York, 401 U.S. 222, 224-226 (1971). Similarly, an error in administering Miranda is not “irremediable” in the same way that police infringement of the Fifth Amendment is. Oregon v. Elstad, 470 U.S. 298, 309 (1985) (holding that the Fifth Amendment does not require the suppression of a confession made after Miranda warnings, solely because the police had obtained an earlier unwarned admission). The cost-benefit analysis also determines the limit of the Miranda rules’ scope. For instance, courts do not allow post-warning silence as evidence against defendants who invoke their Fifth Amendment rights. Overall, suppression of evidence due to violations of Miranda should occur only when its benefits outweigh its costs, whereas suppression of evidence due to violations of the Fifth Amendment always applies.

    The Court found that the benefit of allowing Miranda claims under § 1983 does not outweigh the substantial costs. Such claims would impair judicial economy because it would require a federal judge to determine whether there was a Miranda violation after a state court had already determined that fact. This type of double-adjudication would also create procedural issues between federal and state court systems. Therefore, the negative impact to the court system is too great to justify the extra civil proceedings.

    “Because a violation of Miranda is not itself a violation of the Fifth Amendment, and because we see no justification for expanding Miranda to confer a right to sue under § 1983, the judgment of the [Ninth Circuit] Court of Appeals is reversed.” Vega 2022 WL 2251304 at *10. Thus, police officers are not civilly liable for damages that criminal suspects sustain due to Miranda violations.

Watch David E. Mastagni Testify Against S.B. 505 (Strict Liability & Insurance for Firearms) on Behalf of PORAC & CAHP

   On June 28, 2022, David E. Mastagni testified on behalf of PORAC and CAHP against S.B. 505 (Skinner) which if enacted would erect new barrios for the exercise of Californians' Second Amendment rights.  Watch his testimony below.

 

           The bill would make a person who owns a firearm strictly civilly liable for each incidence of property damage, bodily injury, or death resulting from the use of their firearm unless the owner of the firearm has reported their firearm to local law enforcement as lost or stolen prior to the damage, injury, or death. Additionally, S.B. 505 would require a person who owns a firearm to obtain and continuously maintain a homeowner's, renter's, auto, or gun liability insurance policy specifically covering losses or damages resulting from any negligent or accidental use of that firearm, including but not limited to, death, injury, or property damage.

 

            David testified that his law enforcement clients understand first-hand the scourge of gun violence.  Unfortunately, S.B. 505 will have little impact on individuals who commit crimes with guns, but will impose significant burdens on the Constitutional rights of law-abiding citizens. SB 505 cannot withstand the standard set forth in New York State Rifle & Pistol Ass'n, Inc. v. Bruen (June 23, 2022) 2022 WL 2251305, which held: 

“To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."

 

            He explained that the bill unconstitutionally imposes strict liability on the exercise of the Second Amendment, a restriction for which no historical tradition exists.  To the contrary, California courts have consistently rejected the strict liability standard for the lawful use of firearms. Further, our Supreme Court has held the First Amendment precludes application of strict liability to defamation claims.  As the Supreme Court held the Second Amendment standard mirrors the First Amendment, strict liability is not an available policy option. 

 

Additionally, strict liability on the use of a firearm necessarily extends strict liability to the justified use of a firearm in self-defense.  This violates both the inherent right to self-defense in the US Constitution and the express right in the California Constitution. ("Self-defense 'is one of the inalienable rights guaranteed by the constitution of the state." People v. McDonnell (1917) 32 Cal.App. 694; Cal Cont. Art. 1, §1. "Central to the rights guaranteed by the Second Amendment is "the inherent right of self-defense." United States v. Torres (9th Cir. 2019) 911 F.3d 1253, 1257.) 

 

Finally, requiring insurance is plainly unconstitutional because no historical tradition exists for this first in the nation regulation.  The financial and regulatory burden will discriminate against the less affluent, who will not be able to afford or obtain insurance, and have a disparate impact on underrepresented and vulnerable populations.    

 

 David urged the Committee to reconsider firearm legislation in light of this new standard, rather than invite an immediately legal challenge. The Legislature should focus on gun legislation expressly permitted by the U.S. Supreme Court, keeping guns out of the hands of prohibited persons and imposing consequences on individuals who commit crimes with guns.

 

Undaunted, the Assembly Judiciary Committee voted 8 to 3 to move the bill forward.  This bill poses a significant liability risk when Californians use a firearm in self-defense as it imposes strict liability for any "bodily injury, or death resulting from the use of a firearm", without any exception of justified use of a firearm in self-defense.  If signed into law, an immediate Second Amendment challenge is likely to follow.  If upheld as Constitutional, this bill will greatly expand the liability faced by peace officers for simply performing their duties, as well as citizens who exercise their Constitutional rights.  Peace officer unions should also consider negotiating employer provided insurance coverage for all their members' firearms, including those personally owned.

 

 The full hearing can be viewed below.

 

U.S. Supreme Court's New Second Amendment Ruling Effectively Overturns Ninth Circuit Ruling Against Peace Officer Self-Defense Rights

This past week, the U.S. Supreme Court released several new opinions with immense impacts – one of which changes the game for California public safety officers’ right to use firearms for self-defense. In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court held that the Second and Fourteenth Amendments protect a person’s right to carry a handgun for self-defense outside the home. New York State Rifle & Pistol Association, Inc. v. Bruen (U.S., June 23, 2022, No. 20-843) 2022 WL 2251305. In analyzing self-defense rights, the Court held that circuit courts had been using an improper legal test. Through the Court’s new finding, several cases that support strict firearm regulations have now been overturned. One in particular is a Ninth Circuit case regarding police use of force policies.

Previously, several circuits applied two Supreme Court cases, Heller and McDonald, to justify a two-step test to determine whether a law infringed on Second Amendment rights. At the first step, the court asks whether the law burdens conduct protected by the Second Amendment. To answer, the court considers the history of firearm regulation. Some laws are supported by a long history of lawful regulation, like prohibitions on the possession of firearms by felons. Such laws do not burden conduct protected by the Second Amendment. However, if there is no analogous, historical firearm regulation, the new law burdens conduct protected by the Second Amendment. At the second step, the courts balanced safety with the costs and benefits of firearms restrictions. The courts also gave deference to the legislature’s governmental interests.

            The Ninth Circuit used this two-step test to justify their decision in Mahoney, in which Seattle police officers challenged a Use of Force Policy (“UOF Policy”) that applied to the use of firearms. Mahoney v. Sessions, 871 F.3d 873 (9th Cir. 2017). The UOF Policy provided a set of factors to determine whether use of a firearm was reasonable, necessary, and proportional to the threat at issue. However, the UOF Policy also required the police officers to use de-escalation tactics and to consider the firearm factors only when safe under the totality of circumstances. Although the Seattle police officers argued the UOF Policy was unconstitutional under the Second Amendment, the Ninth Circuit disagreed. Even though the Ninth Circuit reasoned that the UOF Policy burdened police officers’ self-defense conduct protected by the Second Amendment, the court found that the safety and benefits of the firearm restrictions outweighed the violation of police officers’ self-defense rights. Therefore, the Ninth Circuit upheld the UOF Policy because it passed at step two, regardless of the fact that it failed at step one.

However, in the recent New York State Rifle & Pistol Ass’n opinion, the Supreme Court found that Heller and McDonald do not support a two-step test. Heller and McDonald only support the first step: whether the law burdens conduct protected by the Second Amendment. Because Mahoney failed at step one (i.e., Seattle’s UOF Policy inhibited police officers’ Second Amendment rights to self-defense), the UOF Policy and every use of force policy that burdens conduct protected by the Second Amendment is unconstitutional. Now, the courts and legislature must only consider whether modern and historical regulations impose a comparable burden on the right of armed self-defense. A cost-benefit analysis of firearms restrictions and deference to government interests are no longer a judicial priority in analyzing violations of the Second Amendment.

The Supreme Court decision eliminates step two because the Second Amendment “‘is the very product of an interest balancing by the people,’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.” New York State Rifle & Pistol Ass'n, Inc. 2022 WL 2251305 at *2 (quoting D.C. v. Heller, 554 U.S. 570, 635 (2008)). 

The Court stated, “Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.’” Id at *8.

David E. Mastagni will be testifying at the Assembly Judiciary Committee on June 28, 2022, against S.B. 505, which almost certainly runs afoul of this holding. S.B. 505 would make a person who owns a firearm strictly civilly liable for each incidence of property damage, bodily injury, or death resulting from the use of their firearm unless the owner of the firearm has reported their firearm to local law enforcement as lost or stolen prior to the damage, injury, or death. Additionally, S.B. 505 would require a person who owns a firearm to obtain and continuously maintain a homeowner's, renter's, auto, or gun liability insurance policy specifically covering losses or damages resulting from any negligent or accidental use of that firearm, including but not limited to, death, injury, or property damage.

Although intended to provide a means of recovery for victims of gun crimes, this bill is likely unconstitutional, only burdens the Constitutional rights of law-abiding citizens, and will have a discriminatory impact. First, the bill imposes strict liability on the exercise of a Constitutional right. As strict liability for the lawful use of firearms has never been permitted, it is not consistent with the historical traditional of firearm regulation. New York State Rifle & Pistol Ass'n, Inc. v. Bruen. Strict liability is not an available policy choice because it infringes on the Second Amendment. Second, strict liability on the use of a firearm necessarily extends strict liability to the lawful and justified use of a firearm in self-defense in violation of the California Constitution. Self-defense "is one of the inalienable rights guaranteed by the constitution of the state." People v. McDonnell (1917) 32 Cal.App. 694; Cal Cont. Art. 1, §1. Just as the state may not burden the exercise of the First Amendment with strict liability, California can't infringe the right of self-defense. "Central to the rights guaranteed by the Second Amendment is "the inherent right of self-defense." United States v. Torres (9th Cir. 2019) 911 F.3d 1253, 1257.

S.B. 505 will have little impact on individuals who commit crimes with firearms and will unlawfully discriminate against those of modest means who will not be able to obtain or afford insurance as a precondition to the exercise of their Constitutional rights. The exercise of a Constitutional right cannot be conditioned upon a financial cost. Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 571. Furthermore, New York State Rifle & Pistol Ass'n, Inc. v. Bruen precludes the imposition of an insurance requirement on the exercise of Second Amendment rights, as such a precondition is not consistent with the historical tradition of firearm regulation.

"The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant's right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense." New York State Rifle & Pistol Ass'n, Inc. v. Bruen at *34.