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.