FOURTH CIRCUIT DECLARES RIGHT TO LIVESTREAM POLICE

[delaware_export]

Nevada officer slams student recording police, kneels on him

LAS VEGAS (AP) — A school police officer in Las Vegas was captured on cellphone video last week slamming a […] The post Nevada officer slams student recording police, kneels on him appeared first on TheGrio.

news.yahoo.com

 

[Afrikeber]

Didn’t speed cameras open this can of worms?

 

[pcfixer]

This is where it gets very complicated.

You can blame the Doctrine of Qualified Immunity for what seems obvious about our Constitutional rights, but isn’t in a court of law.

From the reason.com article:

”Under the doctrine of qualified immunity, police officers are only open to individual liability if they violate a clearly established right that is protected by the Constitution.”

The key phrase here is “clearly established.”

If the U.S. Supreme Court hasn’t already ruled as such, appellate judges in the Federal Circuits determine when a Constitutional right becomes “clearly established” in their Circuit, and only declare this finding in a case before them.

Some Constitutional rights are “clearly established” in some Federal Circuits, but not in others.

Without such a case that specifically asserts a violation of that particular right, that judicial declaration isn’t made; once made, that declaration becomes binding Constitutional precedent in that Circuit.

If police officers (and other public officials with QI) then violate that “clearly established“ Constitutional right in that Circuit, they can lose their QI and are individually liable for a civil suit.

In other words, arguably (IANAL) to successfully sue the cops for violating your Constitutional right(s) the Federal Circuit Court of Appeals for your state must have DECLARED in a PUBLISHED opinion that a particular Constitutional right has been found to be a “clearly established” right.

Who knew? Not me.

Deep Lurker, @Stoveman @swinokur @teratos

The key phrase here is “clearly established.”

If the U.S. Supreme Court hasn’t already ruled as such, appellate judges in the Federal Circuits determine when a Constitutional right becomes “clearly established” in their Circuit, and only declare this finding in a case before them.

Some Constitutional rights are “clearly established” in some Federal Circuits, but not in others.

HUH!?
Bill of Rights are "Codified" Rights.
Bill of Rights, First 10 amendments to the Constitution of the United States, adopted as a group in 1791. They are a collection of guarantees of individual rights and of limitations on federal and state governments that derived from popular dissatisfaction with the limited guarantees of the Constitution. The first Congress submitted 12 amendments (drafted by James Madison) to the states, 10 of which were ratified.

Qualified Immunity

Overview of qualified immunity doctrine and recent state actions to create civil claims and limit immunity defenses.

www.ncsl.org

Question? What is a misnomer?

 

[paxfish]

Liberty can be scary sometimes.

I prefer it.

 

[Harrys]

The other thing I have seen and have an issue with is that people pick and choose what they want to video. Often, it is only a snapshot of what has happened and provides a false narrative of the issues in its entirety.

 

[Afrikeber]

Yup, I’m all for livestream, bodycams, etc.

DC police release bodycam footage of shooting in Anacostia

DC police release bodycam footage of shooting in Anacostia - WTOP News

D.C. police released a bodycam footage of an officer shooting Steven Shaw, an unarmed Black man, on the morning of Feb. 10 in Southeast D.C.

wtop.com

 

[Bertfish]

The other thing I have seen and have an issue with is that people pick and choose what they want to video. Often, it is only a snapshot of what has happened and provides a false narrative of the issues in its entirety.

For sure. Happens all the time.

 

[joppaj]

Unfortunately, a lot of young Officers are more scared of receiving a civilian complaint from a habitual felon or having some cell phone video taken out of context by their Chief / Commissioner / Superintendent, than being shot in the head and immediately become supine in the face of a smart phone pointed in their direction. For every Officer you have smashing some motorist's phone while yelling racial slurs, you have about 10,000 other Officers who would rather allow criminals brandishing cell phones to run riot than risk being accused of interfering with "protected 1st amendment activity."

What "Livestreaming" really means is telling whoever is watching to come to wherever you have them stopped as quick as possible to try and remove evidence, help them escape or otherwise obstruct and hinder. This is routine and if you can't get adequate back up or any back up at all you're in trouble. I've been surrounded by crowds summoned via "live stream" telling me that if I don't release their friend, let them take his money / drugs / gun / unregistered vehicle / [insert contraband or evidence of a crime here] that they're going to beat me to death or shoot me with my own gun. These people aren't posturing - they're serious and if they sense that they can get over on you, you're as good as dead.

For the people bringing these lawsuits, this is exactly what they want. They do not want you doing your job comfortably and would vastly prefer if you weren't there at all. It's that spot where leftists and libertarians overlap that neither of them wants active police. The left doesn't per se want crime, but they don't want their loved ones being arrested. The libertarian dream is to arm up and handle it themselves. The police response to this has been to step back and show up after the fact to write reports for the victims.

 

[Deep Lurker]

The issue isn't the Officer having "enemies." The issue is that the vast majority of the people "livestreaming" Police, in my experience, are criminals. Just so we're perfectly clear, by "criminals" I'm not referring to people engaged in traffic infractions like speeding; I'm talking about drug dealers, burglars, car thieves and murderers. Normal people don't generally record their encounters with Police. The people I deal with on a daily basis record Officers in an effort to throw them off balance so they can escape, destroy evidence or assault the Officer. Unfortunately, a lot of young Officers are more scared of receiving a civilian complaint from a habitual felon or having some cell phone video taken out of context by their Chief / Commissioner / Superintendent, than being shot in the head and immediately become supine in the face of a smart phone pointed in their direction. For every Officer you have smashing some motorist's phone while yelling racial slurs, you have about 10,000 other Officers who would rather allow criminals brandishing cell phones to run riot than risk being accused of interfering with "protected 1st amendment activity."

What "Livestreaming" really means is telling whoever is watching to come to wherever you have them stopped as quick as possible to try and remove evidence, help them escape or otherwise obstruct and hinder. This is routine and if you can't get adequate back up or any back up at all you're in trouble. I've been surrounded by crowds summoned via "live stream" telling me that if I don't release their friend, let them take his money / drugs / gun / unregistered vehicle / [insert contraband or evidence of a crime here] that they're going to beat me to death or shoot me with my own gun. These people aren't posturing - they're serious and if they sense that they can get over on you, you're as good as dead.

I can see this issue going all the way to the Supreme Court and, honestly, I don't know how they would rule if it does. We'll have to cross that bridge when we come to it.

I'll also address the issue of public surveillance. If it were up to me, it would be illegal to have surveillance cameras, whether owned by government or private citizens, recording public spaces. If you want to have CCTV on your property or in your home or business - fine, but the camera can't capture anything over your property line and/or outside the building. The benefits that we get from CCTV as far as crime solving are significant. That being being said, those benefits are far outweighed, in my mind, by the dangers posed by government, either alone or in conjunction with big business, being able to effectively monitor everyone's movements and whereabouts all the time.

Thank you for this.

 

[Deep Lurker]

If the U.S. Supreme Court hasn’t already ruled as such, appellate judges in the Federal Circuits determine [when analyzing claims in a case implicating qualified immunity] when a Constitutional right becomes “clearly established” in their Circuit, and only declare this finding in a [QI] case before them.

Some Constitutional rights are [declared] “clearly established” [the concept which determines if qualified immunity protection is lost] in some Federal Circuits, but not in others.

Without such a case that specifically asserts a violation of that particular right, that judicial declaration isn’t made; once made, that declaration becomes binding Constitutional precedent [with respect to the doctrine of qualified immunity and the protection it affords police and other covered government agents, authorities and officials from individual liability] in that Circuit.

If police officers (and other public officials with QI) then violate that “clearly established“ Constitutional right in that Circuit, they can lose their QI and are individually liable for a civil suit.

In other words, arguably (IANAL) to successfully sue the cops [or other public employees such as firefighters, paramedics, and social workers] for violating your Constitutional right(s) the Federal Circuit Court of Appeals for your state must have DECLARED in a PUBLISHED opinion that a particular Constitutional right has been found to be a “clearly established” right [before a covered official loses their immunity from civil liability].

Who knew? Not me.

I’ve added language above [in brackets] and in bold font to my previous explanation in the hopes of clarifying how the term “clearly established” is specifically applied to Constitutional rights when analyzing claims under the doctrine of qualified immunity.

 

[Abuck]

If you can livestream it, then you can also record it. So the 4th joins the 5th, the 1st and 7th also.

Filming the Police

Federal appellate courts have ruled that people have a First Amendment right to film police interactions with citizens.

www.mtsu.edu

Don’t forget that prior restraint governs conduct of them trying to interfere with you recording. In CA they actually have The Bane Act to help protect rights. Just intentionally blinding the camera and cameraman with their bright flashlights can be considered a violation of that. Not sure about other states.

But LEO training (especially in those circuits listed above) best include some guidelines on how to handle citizens filming and/or live-streaming.

Some have recognized it a long time already, others have not and paid hefty settlements. This link relates to Baltimore PD, way back in 2014.

New policy says public has right to film Md. officers

The Baltimore Police Department has instituted a new policy that prohibits officers from stopping people from taping or photographing police actions

www.police1.com

Plausible deniability is getting to be less and less of an excuse to violate our civil rights. It’s a failure of the individual LEO, those assisting on the call for not speaking out and letting illegal arrests happen, their superiors for not having them better trained, and on municipalities for not policing their own ranks, or employing rogue officers that have multiple violations, but are allowed to resign and pop up in another department.

“In City of Tahlequah v. Bond, the Supreme Court reminds us that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

2 New Supreme Court Rulings on Qualified Immunity - Lexipol

With two new rulings, the Supreme Court repeated previous guidance to keep qualified immunity decisions specific to the facts of each case.

www.lexipol.com

Qualified immunity for constitutional rights violations is rapidly going away. As it should be. I often hear that ignorance is no excuse for the law, and that needs to work both ways.

As far as Livestreams being dangerous for officer safety, what about a simple cell call? Someone could use that nefariously. Should we not allow cell phone usage at all within a “safe zone?”

 

[fabsroman]

The issue isn't the Officer having "enemies." The issue is that the vast majority of the people "livestreaming" Police, in my experience, are criminals. Just so we're perfectly clear, by "criminals" I'm not referring to people engaged in traffic infractions like speeding; I'm talking about drug dealers, burglars, car thieves and murderers. Normal people don't generally record their encounters with Police. The people I deal with on a daily basis record Officers in an effort to throw them off balance so they can escape, destroy evidence or assault the Officer. Unfortunately, a lot of young Officers are more scared of receiving a civilian complaint from a habitual felon or having some cell phone video taken out of context by their Chief / Commissioner / Superintendent, than being shot in the head and immediately become supine in the face of a smart phone pointed in their direction. For every Officer you have smashing some motorist's phone while yelling racial slurs, you have about 10,000 other Officers who would rather allow criminals brandishing cell phones to run riot than risk being accused of interfering with "protected 1st amendment activity."

What "Livestreaming" really means is telling whoever is watching to come to wherever you have them stopped as quick as possible to try and remove evidence, help them escape or otherwise obstruct and hinder. This is routine and if you can't get adequate back up or any back up at all you're in trouble. I've been surrounded by crowds summoned via "live stream" telling me that if I don't release their friend, let them take his money / drugs / gun / unregistered vehicle / [insert contraband or evidence of a crime here] that they're going to beat me to death or shoot me with my own gun. These people aren't posturing - they're serious and if they sense that they can get over on you, you're as good as dead.

I can see this issue going all the way to the Supreme Court and, honestly, I don't know how they would rule if it does. We'll have to cross that bridge when we come to it.

I'll also address the issue of public surveillance. If it were up to me, it would be illegal to have surveillance cameras, whether owned by government or private citizens, recording public spaces. If you want to have CCTV on your property or in your home or business - fine, but the camera can't capture anything over your property line and/or outside the building. The benefits that we get from CCTV as far as crime solving are significant. That being being said, those benefits are far outweighed, in my mind, by the dangers posed by government, either alone or in conjunction with big business, being able to effectively monitor everyone's movements and whereabouts all the time.

I miss reading your posts. Probably don't see you much because I tend to stay away from this forum nowadays.

What you wrote makes sense. If I remember correctly, you are in Baltimore City. I view Baltimore City as a complete lost cause. Should just get rid of the police and let them do whatever they want to do until they either kill off everybody or they come to their senses.

Never even crossed my mind that criminals would be calling for their own backup by livestreaming a traffic stop, etc.

By the way, I have a phone mount on my windshield and would record any interaction with an LEO during a traffic stop. I think it would keep both of us on our best behavior. Then again, I guess the LEO could shoot me dead, take my phone, and delete the video unless I was uploading it to the cloud.

There is a lot to discuss here.

What happens if I am at a park recording video of my children and I happen to record other people in the background?

I think it comes down to the expectation of privacy argument. In our homes, we can expect privacy. Out in public, not so much.

I am looking to retire on 1,000+ acres away from everybody. lol

 

[press1280]

Deep Lurker, @Stoveman @swinokur @teratos

The key phrase here is “clearly established.”

If the U.S. Supreme Court hasn’t already ruled as such, appellate judges in the Federal Circuits determine when a Constitutional right becomes “clearly established” in their Circuit, and only declare this finding in a case before them.

Some Constitutional rights are “clearly established” in some Federal Circuits, but not in others.

HUH!?
Bill of Rights are "Codified" Rights.
Bill of Rights, First 10 amendments to the Constitution of the United States, adopted as a group in 1791. They are a collection of guarantees of individual rights and of limitations on federal and state governments that derived from popular dissatisfaction with the limited guarantees of the Constitution. The first Congress submitted 12 amendments (drafted by James Madison) to the states, 10 of which were ratified.

Qualified Immunity

Overview of qualified immunity doctrine and recent state actions to create civil claims and limit immunity defenses.

www.ncsl.org

Question? What is a misnomer?

The question is whether certain actions fall under 1A protections. SCOTUS has ruled on quite a few cases but there's obviously new technologies that come along where the question hasn't been squarely answered. While it seems clear to me at least the courts would rule favorable for recording and/or livestream, the question still remains.

 

[Kman]

It's sickening to read and hear announcements that citizens NOW have the right and freedom is GRANTED to ALLOW...
Rights and freedoms just are. They can't be given.
You can only grant freedom to someone who is a slave or subject.
Let's us know our place, doesn't it.

 

[PO2012]

I miss reading your posts. Probably don't see you much because I tend to stay away from this forum nowadays.

What you wrote makes sense. If I remember correctly, you are in Baltimore City. I view Baltimore City as a complete lost cause. Should just get rid of the police and let them do whatever they want to do until they either kill off everybody or they come to their senses.

Never even crossed my mind that criminals would be calling for their own backup by livestreaming a traffic stop, etc.

By the way, I have a phone mount on my windshield and would record any interaction with an LEO during a traffic stop. I think it would keep both of us on our best behavior. Then again, I guess the LEO could shoot me dead, take my phone, and delete the video unless I was uploading it to the cloud.

There is a lot to discuss here.

What happens if I am at a park recording video of my children and I happen to record other people in the background?

I believe it was Pericles who once said that "Just because you don't take an interest in politics, doesn't mean politics won't take an interest in you." The same is true for criminals in Baltimore City. Baltimore City is, by and large, a burnt out husk. There are exceptions but that's the rule. The majority of neighborhoods are either completely destroyed or on a decidedly downward trajectory. The criminals are spreading out into the surrounding counties and overwhelming the CJ system by sheer determination and force of numbers. Maryland refuses to have a death penalty and refuses to build new prisons which are sorely needed. The People of Maryland have been allowing Baltimore City to do its own thing for decades. If they keep to that mindset, Baltimore will devour the entire State.

As far as recording your stops, that only matters if the Officer is honest. If he's a criminal with a badge he's going to destroy your phone, or kill you or both. GTTF committed a lot of crimes while wearing body cameras. They didn't care and neither will any Cop who had it in his mind to rob, rape or kill prior to turning on his overhead lights. Agencies are using body cameras the same way they've been using polygraphs, namely as a shortcut or magic bullet. Nothing substitutes for a real background check, a real pre-hire interview, a real academy and a real field training program. That's how you keep thieves, rapists and psychopaths out. Unfortunately, those things are expensive, manpower intensive and require follow through, so instead we get body cameras. Body cameras are the police integrity equivalent of trying to lose weight by taking a diet pill and not changing how you eat or actually exercising. It makes you feel better about yourself but in reality tangible progress is minimal to non-existent.

 

[Deep Lurker]

If you can livestream it, then you can also record it. So the 4th joins the 5th, the 1st and 7th also.

Filming the Police

Federal appellate courts have ruled that people have a First Amendment right to film police interactions with citizens.

www.mtsu.edu

Don’t forget that prior restraint governs conduct of them trying to interfere with you recording. In CA they actually have The Bane Act to help protect rights. Just intentionally blinding the camera and cameraman with their bright flashlights can be considered a violation of that. Not sure about other states.

But LEO training (especially in those circuits listed above) best include some guidelines on how to handle citizens filming and/or live-streaming.

Some have recognized it a long time already, others have not and paid hefty settlements. This link relates to Baltimore PD, way back in 2014.

New policy says public has right to film Md. officers

The Baltimore Police Department has instituted a new policy that prohibits officers from stopping people from taping or photographing police actions

www.police1.com

Plausible deniability is getting to be less and less of an excuse to violate our civil rights. It’s a failure of the individual LEO, those assisting on the call for not speaking out and letting illegal arrests happen, their superiors for not having them better trained, and on municipalities for not policing their own ranks, or employing rogue officers that have multiple violations, but are allowed to resign and pop up in another department.

“In City of Tahlequah v. Bond, the Supreme Court reminds us that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

2 New Supreme Court Rulings on Qualified Immunity - Lexipol

With two new rulings, the Supreme Court repeated previous guidance to keep qualified immunity decisions specific to the facts of each case.

www.lexipol.com

Qualified immunity for constitutional rights violations is rapidly going away. As it should be. I often hear that ignorance is no excuse for the law, and that needs to work both ways.

As far as Livestreams being dangerous for officer safety, what about a simple cell call? Someone could use that nefariously. Should we not allow cell phone usage at all within a “safe zone?”

Thanks for the links discussing this now rapidly-evolving aspect of the law.

Although, as you state, BPD changed their policy in 2014, the rest of Maryland and the 4th Circuit Court of Appeals find themselves literally behind the times here.

The 4th Circuit panel in this NC livestream case explicitly states (on page 14 of the opinion, below) they are nevertheless bound by the QI doctrine as it is now construed (highlighted text).

They further explain (see footnote 11) that the First Amendment “right to livestream video” cannot be combined with the “right to record video” as the same right when it comes to litigating the use of these technologies, with respect asserting claims implicating qualified immunity.

It may be revealing of their own dissatisfaction with qualified immunity jurisprudence that they also refer readers to published criticism of QI in the opinion itself (see footnote 12).

In this circumstance, an “official-capacity claim” is suing the municipality or department where the police officers were employed for a Constitutional violation.

A “personal capacity claim” is suing the individual officer(s) responsible for the violation.

 

[Blackstar65]

Anthony Graber gives a nod and a thumbs-up.

Trooper Uhler and Joe Cassilly weep into their soiled copies of the Bill of Rights.

Someone knows their history. I had to do a 5 min on this to get my job at my departments academy. This is old news in Maryland for law enforcement.

 

[OMCHamlin]

I would think that by extension (as concepts are known to stretch with time), any person that does any “for compensation labor”, could be subject to recording. Eventually, there becomes less barrier to “record everybody”.
But probably not…

 

[Abuck]

Thanks for the links discussing this now rapidly-evolving aspect of the law.

Although, as you state, BPD changed their policy in 2014, the rest of Maryland and the 4th Circuit Court of Appeals find themselves literally behind the times here.

The 4th Circuit panel in this NC livestream case explicitly states (on page 14 of the opinion, below) they are nevertheless bound by the QI doctrine as it is now construed (highlighted text).

They further explain (see footnote 11) that the First Amendment “right to livestream video” cannot be combined with the “right to record video” as the same right when it comes to litigating the use of these technologies, with respect asserting claims implicating qualified immunity.

It may be revealing of their own dissatisfaction with qualified immunity jurisprudence that they also refer readers to published criticism of QI in the opinion itself (see footnote 12).


View attachment 402370

In this circumstance, an “official-capacity claim” is suing the municipality or department where the police officers were employed for a Constitutional violation.

A “personal capacity claim” is suing the individual officer(s) responsible for the violation.

Thanks. I understand that there is a burden to get past QI. The case I posted made that even harder. Except constitutional rights violations. So if on the wrong side of LEO encounters, I posted a possible way to weaken a claim of QI. If you record them as they engage further, and continue violating your rights, oh well.

Post # 145

What are First Amendment Auditors?

Ripe for the Supremes to settle the circuit split . Is there actually a split? I can't recall similar case being decided at the Federal CA level elsewhere.

www.mdshooters.com

Most of these cases get settled, with no admission of guilt. Sometimes there are training requirements attached. It’s going to take more cases unfortunately to bring relief.

By separating live-streaming and recording, it’s going to get even more interesting with these issues.

 

[whistlersmother]

What constitutes "live" vs "recorded"?

Is a 5 minute delay the difference between "live" vs "recorded"? Is there any objective metric vetted out by the courts?

Any purposeful delay is actually a recording with later broadcast.

This whole "communication" vs "recording" sounds very subjective given current technology. Sounds like the courts are still living in an 80's technology world.