Filming the police: your First Amendment right and the qualified immunity gap

Few constitutional questions matter more to ordinary people than this one, because a phone camera is often the only neutral witness at a police encounter. The courts of appeals have mostly agreed that recording the police is protected. Yet the case law is also a running demonstration of how qualified immunity works: again and again, judges have announced the right and, in the same opinion, held that the officer who violated it cannot be made to pay.

I.The right the courts keep recognizing

The leading case is Glik v. Cunniffe. On October 1, 2007, Simon Glik, a lawyer, saw Boston police arresting a man on Boston Common. Concerned that the officers were using excessive force, he began recording on his cell phone from roughly ten feet away, without interfering. When an officer learned the recording included audio, Glik was arrested and charged with violating the Massachusetts wiretap statute, disturbing the peace, and aiding the escape of a prisoner. One charge was dropped, a Boston court dismissed the other two, and Glik sued.

In a unanimous opinion by Judge Kermit Lipez, the First Circuit held that the First Amendment protects “the filming of government officials in public spaces,” a right not limited to journalists and subject only to reasonable time, place, and manner limits, none of which applied. On the wiretap charge, the court read the Massachusetts law to reach only secret recording; Glik had filmed openly, so there was no probable cause for the arrest. Because both rights were clearly established, the court affirmed the denial of qualified immunity.

Glik is what success looks like. The rest of this story is about the circuits where it went the other way.

II.Philadelphia: the right announced, the officers excused

Fields v. City of Philadelphia combined two cases. Amanda Geraci, a legal observer at a 2012 protest, moved to get a better view of an arrest and was pinned against a pillar by an officer for a minute or more, which kept her from recording. Richard Fields, a Temple University student, photographed officers breaking up a house party from a public sidewalk in 2013. He was arrested when he refused to leave, and his phone was searched. The citation against him was withdrawn.

The Third Circuit held squarely that “the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.” It rejected the trial court’s view that a recording is protected only when it is meant to express a message. Then it granted the officers qualified immunity. Its own earlier cases had never held that the right exists, and one of them, Kelly v. Borough of Carlisle, had found no clearly established right to record during a traffic stop.

The Philadelphia Police Department’s own policies already recognized the right. The majority held that those policies did not make the law clearly established. Judge Nygaard dissented on that point, pointing to the department’s memorandum and directive, which had been read at roll call, and to the agreement among other circuits.

III.Fort Worth: the right exists, starting now

In September 2015, Phillip Turner stood on a public sidewalk and filmed the Fort Worth police station. Officers asked for his identification, and when he refused, they handcuffed him and put him in a patrol car before a lieutenant arrived and had him released.

In Turner v. Driver, the Fifth Circuit held that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” But because neither the Supreme Court nor the Fifth Circuit had said so before Turner picked up his camera, the officers received qualified immunity on his First Amendment claim. His Fourth Amendment claim about the handcuffing went forward, because refusing to give identification was not enough, on those facts, to justify an arrest. Judge Clement dissented in part, calling the majority’s First Amendment ruling dicta.

IV.Denver: trained on the right, immune anyway

In August 2014, Levi Frasier used his tablet to record Denver officers making an arrest in a parking lot, including officers striking the suspect. Afterward, according to his complaint, officers surrounded him, and one took the tablet and searched it for the video. The district court denied the officers qualified immunity on his First Amendment retaliation claim.

The Tenth Circuit reversed in Frasier v. Evans. It held that what the officers had been taught in training was irrelevant, because qualified immunity is an objective test and only judicial decisions can clearly establish the law. It counted the other circuits, found what it described as a split, and concluded that a split cannot clearly establish anything. On the question whether the right exists at all, the court wrote: “We exercise our discretion to bypass the constitutional question of whether such right even exists.”

That is the loop in its purest form. Because the court skipped the constitutional question, its own opinion did not settle the right for the next case.

V.Where the circuits stand

This table includes only cases we verified for this article. Other circuits have decisions on the issue; check your own circuit’s current case law, or ask a lawyer, before relying on any summary.

VI.Why the Supreme Court’s silence matters

The Supreme Court has never decided whether the First Amendment protects recording police. Frasier petitioned the Court to review his case (docket No. 21-57), and the question remains undecided. Under the clearly-established test, that silence has consequences. Where a circuit has ruled, officers there are on notice. Where it has not, an officer can argue that a handful of other circuits is not enough, as the Tenth Circuit accepted in Frasier.

Courts are allowed to skip the constitutional question entirely. Since Pearson v. Callahan in 2009, judges may decide the clearly-established question first and never reach whether a right exists, a history our Zorn piece traces. Each time a court takes that path, the law stays as unsettled as it was, and the next officer can make the same argument. Fields and Turner took the other path and announced the right, which should make it harder for later officers in those circuits to plead ignorance. That choice by judges, more than anything in the Constitution’s text, explains why the same act of recording can be protected in one region and unremedied in another.

Defenders of qualified immunity say this is fair: officers should not pay damages for breaking rules no court had announced where they work. The counterpoint is that a right recognized by most federal appellate courts to consider it, and written into department training, is not a secret. To learn how lawyers and courts actually search for “clearly established” law, see our guide on researching whether a right is clearly established.

VII.What the cases say about recording lawfully

This is not legal advice, and state laws differ. But the opinions themselves describe the limits courts have recognized:

• Distance. Courts describe the right as subject to reasonable time, place, and manner restrictions. Recording from a spot that does not physically obstruct officers fits the facts of the cases plaintiffs have won.
• No interference. The protected act is recording. Interfering with an arrest or ignoring a lawful order is a separate matter, and courts treat it that way.
• Open, not secret. In Glik, the Massachusetts wiretap statute mattered because it targets secret recording. Some states require consent for recording conversations, especially audio, and how those laws apply to police in public varies.
• Your phone. Fields and Frasier both involved officers searching or seizing a device. Whether that was lawful turned on the specific facts.

If you were arrested, had a device taken, or were punished for recording, filing deadlines apply. Talk to a licensed civil-rights attorney in your state promptly. If your recording led to an arrest and you want us to know about it, you can send us a case tip.

Editorial note: This analysis is built from the cited opinions, statutes, and reporting listed below. It is journalism and advocacy, not legal advice. If you believe your rights were violated, talk to a licensed civil-rights attorney in your state. Corrections: contact the editor.