Recording Others

DOJ's Public Statements Provide a Road Map for Citizens to Sue in Cop Recording Cases

Qualified immunity for police might be a thing of the past

In May 2010, Christopher Sharp used his cell phone to record video of his friend being arrested by the Baltimore Police at the Preakness Stakes. The police demanded that Sharp surrender his phone, stating that the contents might be evidence; when the phone was returned, Sharp discovered that the video he had made, plus a number of other unrelated videos, had been deleted.

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Citizen Counter-Surveillance of the Police? There's an App For That.

Herbert George Ponting and telephoto apparatus, Antarctica, January 1912 Despite the welcome 7th Circuit decision in ACLU v.

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The Score in Illinois: First Amendment 2, Eavesdropping Law 1

Once again, the CMLP is pleased to report that the First Amendment has scored an important victory in a case involving the recording of police officers in public. Last summer saw the strong pro-First Amendment decision from the U.S. Court of Appeals for the First Circuit in Glik v.

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The Wasted Effort of Connecticut's Feeble Cop-Recording Bill

Connecticut, like most states these days it seems, has been having a problem with cops interfering with people photographing or filming them. Members of the Connecticut legislature are concerned about citizens being harassed for filming cops, and are working on passing a bill, No.

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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.

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Privacy v. Public Access in the Emerald City

For the past few years here in Seattle, a fascinating debate has been brewing about the balance between government transparency and citizens' privacy, particularly at the intersection of the state Public Records Act and the state Privacy Act.

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Suffolk County Police Department v. Datz

Date: 

07/29/2011

Threat Type: 

Police Activity

Party Receiving Legal Threat: 

Philip Datz

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, Eastern District of New York

Legal Counsel: 

Robert Balin, Samuel Bayard, and Alison Schary, Davis Wright Tremaine LLP; Corey Stoughton, New York Civil Liberties Union; Mickey Osterreicher, National Press Photographers Association (Of Counsel)

Publication Medium: 

Broadcast

Relevant Documents: 

Status: 

Pending

Description: 

According to CBS, on July 29, 2011, Philip Datz ("Datz") was in Bohemia, New York filming police activity following a car chase as a videographer for the Stringer News Service. During the course of his filming, Suffolk County Police Sergeant Michael Milton ("Milton") approached and ordered him to leave. Datz moved approximately a block from where he was initially located and continued to film the police activity. Milton approached Datz a second time, arrested him, and seized his camera and videotape. (Datz's recording of the encounter can be viewed here.)

Datz was charged with obstructing governmental administration, N.Y. Penal Law § 195.05. The charge was later dismissed.

On April 11, 2012, Datz filed a lawsuit in the United States District Court in the Eastern District of New York against Milton and Suffolk County, alleging that the police violated Datz's rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution, Article I, Sections 8 and 12 of the New York State Constitution, as well as the Privacy Protection Act (42 U.S.C. § 2000aa). The complaint also contains claims of false arrest, assault, and battery. According to the complaint, Suffolk County Police seized the videotape from his camera as evidence and held it until one hour after his release that evening.

The complaint also makes several allegations  in support for its demand for injunctive relief against Suffolk County barring the county from obstructing journalists and members of the public who are recording police activity in public places. These allegations include several other incidents where Suffolk County police and firemen ordered Datz to stop filming police activity from public property, and some instances the police deliberately expanded crime scene perimeters to keep the press from filming crime scenes. 

Sergeant Michael Milton answered the complaint on May 2, 2012.

The case is currently in discovery. As of February 2014, dispositive motions are due March 24, 2014.

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Tell Us, Judge Posner, Who Watches the Watchmen?

In what is now their widely publicized exchange, U

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A Victory for Recording in Public!

My apologies to Justin Silverman for bumping the second half of his excellent blog post about the BART phone blackout with this breaking news -- I urge you to read Justin's posts as well. 

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Recording Police and Defining 'Plain Sight'

As bicyclist Eli Damon tells the story, a police officer pulled him over on March 20 as he rode his bike in Hadley, Massachusetts.

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Does This Look Infected to You? Government Virus as Counter-Proposal to FBI's URL Demands

So here is a nice and scary development. It appears that the FBI wants Internet Service Providers (ISPs) to keep a log of the url's visited by consumers. Wait it gets better.

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The Free Citizen as a Nuisance

"I'm willing to admit that the policeman has a difficult job, a very hard job. But it's the essence of our society that the policeman's job should be hard. He's there to protect, protect the free citizen, not to chase criminals, that's an incidental part of his job. The free citizen is always more of a nuisance to the policeman than the criminal. He knows what to do about the criminal." - Orson Welles

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Massachusetts v. Peyton

Date: 

12/01/2007

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Emily Petyon

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Legal Counsel: 

American Civil Liberties Union

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In December 2007, Massachusetts authorities charged documentary filmmaker and citizen journalist Emily Peyton with violating Massachusetts wiretapping law after she videoptaped police arresting an antiwar protester in Greenfield, Massachusetts. The ACLU represented Ms. Peyton, and the charges against her were dropped because her recording had not been secretive.

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I Can Clearly See You’re Nuts: ACORN’s Insane Civil Suit

I'm pretty sure I can struggle my way out. First I'll just reach in and pull my legs out, now I'll pull my arms out with my face. – Homer J. Simpson, The Simpsons, Bart Gets An Elephant, 1F15

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ACORN v. O'Keefe

Date: 

09/17/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

James O'Keefe; Hannah Giles; Breitbart.com LLC

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Circuit Court for Baltimore City

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The Association of Community Organizations for Reform Now (ACORN) sued James O'Keefe, Hannah Giles, and Breitbart.com LLC for allegedly violating Maryland surveillance and wiretapping law by making and disseminating a hidden-camera video of ACORN employees Shera Williams and Tonja Thompson giving tax advice to O'Keefe and Giles, who were posing as a pimp and prostitute.  The video, which appeared on BigGovernment.com and YouTube, has led to considerable public controversy.

According to the Washington Post:

"The video and audio footage was taken without the knowledge of Williams and/or Thompson and in violation of Maryland's Courts and Judicial Proceedings Code §§ 10-402(a) and 10-410, which requires two party consent to all electronic surveillance. Violation of the law is a felony, and entitles parties whose rights were violated to sue," ACORN said in a statement announcing the suit.

ACORN filed suit in Circuit Court for Baltimore City.  It seeks damages and a preliminary and permanent injunction against further dissemination fo the video. 

Update:

03/11/10 - Ben Sheffner reports that the court has dismissed the case after ACORN failed to serve the complaint on the defendants within Maryland's 120-day limit.

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The Flipside of 1984: The Public Watching Big Brother

A recent post on Prawfs Blawg by Professor Howard Wasserman further explores some of the questions raised in my post, Searching for Both Sides of Body Slam Video, where I discuss some of the problems with videos that document forceful arrests. Prof.

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Miami Judge Drops Hammer on Photojournalist Who Took Cops' Picture

“Photography is not a crime, it’s a First Amendment right,” proclaims the title of photojournalist Carlos Miller’s blog.  Nonetheless, a jury found Miller guilty of obstructing traffic and resisting arrest without violence during his encounter last year with five Miami police officers that he photographed on a public street.  As a result, Miami County Court Judge Jose Fernandez sentenced him to one year of probation,100 hours of community service, anger management lessons, and over $500 in court fees, well in excess of the three months

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Lifestyle Lift Holding, Inc. v. NBC 10

Date: 

09/26/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

NBC-Subsidiary (WCAU-TV) (a.k.a. NBC 10); NBC Stations Management II, Inc.; NBC Stations Management, Inc.; NBC Universal, Inc.; Lu Ann Cahn; Dr. Louis Bucky; John Doe 1 and 2

Type of Party: 

Organization

Type of Party: 

Individual
Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Michigan, Southern Division

Case Number: 

2:06-cv-14312

Legal Counsel: 

Julie Rikelman

Publication Medium: 

Broadcast
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Lifestyle Lift Holding, Inc. and LL NJ, Inc. are in the business of performing facelifts and other cosmetic surgery. In September 2006, they sued NBC-Subsidiary (WCAU-TV) (a.k.a. NBC 10), NBC Universal and certain of its affiliates, NBC reporter Lu Ann Cahn, and Dr. Louis Bucky over a television news report about the "Lifestyle Lift" cosmetic surgery procedure that appeared on NBC 10 in Philadelphia. In preparing the news report, the NBC defendants allegedly sent two individuals in an undercover capacity to LL NJ's offices to gather information and secretly videotape events on the premises. The news report itself was critical of the Lifestyle Lift procedure and included negative statements by former patients and Dr. Bucky, NBC10's hired expert. A copy of the news program was posted on the NBC10's website, but later removed, and a nearly verbatim transcript of the broadcast was originally posted on various local NBC websites.

The complaint, filed in federal court in Michigan, included claims for violation of the New Jersey wiretapping statute, trespass to land, false advertising under the Lanham Act, and defamation. In November 2006, the defendants moved to dismiss the case, and the court dismissed the false advertising and wiretapping claims, and dismissed Dr. Bucky from the suit altogether for lack of personal jurisdiction over him. Later, the remaining defendants moved for summary judgment on the trespass and defamation claims. On April 28, 2008, the court denied the motion, holding that the defamation claim could go to trial. The court dismissed the trespass claim without prejudice, holding that a New Jersey court should decide that claim.

UPDATE:

On 7/14/2008 the court issued an order of referral to facilitative mediation. On 8/21/08, the court issued an order dimissing the case.

 

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CMLP Notes: 

avm -6-15-09 update on mediation and dismissal

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