Is It a Prior Restraint for Police to Delete Video of Their Conduct?

A pedicab driver was arrested in D.C. recently for pretending to record police arresting one of his passengers. He wasn’t actually filming anything – apparently he wasn’t even sure how to operate his new camera.

One would think that with all the attention this issue has received lately, we’d have seen a decrease in incidents of police arresting those filming their actions. But police officers continue to arrest journalists and other citizens for lawfully recording incidents of police activity. It happened to CMLP friend Carlos Miller (for the third time) while he was covering an Occupy Miami evacuation in February. And, as Carlos reported, to a San Diego videographer in January. And to others in Boston, Austin, and Memphis. And many other places.

It’s not like the right to record the police is a big secret anymore. The Obama Administration has stated that Baltimore city police officers infringed on an individual’s (non-journalist) First, Fourth, and Fourteenth Amendment rights when they seized his cell phone and deleted its contents (he was recording the officers arresting his friend). An Oregon jury came to the same conclusion regarding the seizure of an environmentalist’s video camera. And the First Circuit unanimously ruled in Glik v. Cunniffe that filming officers in a public space is a clearly established First Amendment right. The New York police should also understand that they are not to interfere with lawful recording: Their patrolmen’s guide explicitly states that “[m]embers of the media will not be arrested for criminal trespass unless an owner expressly indicates … that the press is not to be permitted.”

And the people who have had run-ins with the police are beginning to fight back. Simon Glik filed suit against Boston police, which resulted in the First Circuit opinion mentioned above and a $170,000 settlement with the City of Boston. Videographer Phil Datz just sued the Suffolk County (NY) Police Department for a similar incident. Carlos Miller is also fighting his most recent arrest.

Most of the lawsuits that have arisen out of these incidents are based on 42 U.S.C. § 1983, which grants individuals the right to relief when actors, acting pursuant to state authority, violate the person’s constitutional rights. (The Supreme Court established a similar cause of action against federal actors in Bivens v. Six Unknown Named Agents, 403 U.S. 338 (1971).) The First Amendment grants the right to film events occurring in a public space, as some Courts of Appeals, such as the First, Ninth and Eleventh Circuits, recognize. The Fourth Amendment protects individuals’ private property (like a camera or its contents) from seizure without a warrant or probable cause. The Fourteenth Amendment requires due process before state and local officials can seize and destroy someone’s property.

What the courts and the a</