Cops Caught Covering or Disabling Surveillance Cameras | Is that Legal?

Two days ago, I took the deposition of two police officers in a civil federal rights lawsuit (section 1983 case) involving an allegation that my client’s exterior home surveillance camera was disabled by the officers. They both pled the Fifth Amendment. Here’s a photo of the actual disabled camera:

This is from the “Creepy Cops Search Case,” which if you’ve been following my work, you’re well-aware-of. But what about situations where they don’t destroy anything, but just cover or move the camera?

I came across some recent unrelated footage of police officers covering, concealing, or otherwise redirecting, a home’s surveillance cameras. When this hit the interwebs, it of course immediately sparked discussion. Police officers defended the footage, claiming officer safety reasons to do this, with some claiming that they always do this as a matter of policy. Is this legal? Is this a Fourth Amendment violation? Is it a First Amendment violation? Is this a crime?

There are a few issues with this. Are we talking about doing this pursuant to the execution of a search warrant for the subject residence. And if so, does the search warrant specifically authorize the seizure of surveillance cameras themselves, rather than the footage?

My Client Films Officer Appearing to Overdose After Suspect Allegedly Throws Narcotics

It hit the news yesterday that several Oak Hill, West Virginia police officers had supposedly overdosed after narcotics were thrown at them by a suspect they were attempting to arrest. I was already looking into the science behind these claims when I found out that a client of mine actually witnessed what happened, and began filming with his cell phone.

“Sheriff’s Office: Two officers in Oak Hill overdose after suspect throws drugs at them” was the headline. Here’s the media report:

What were the chances that a client of mine just happened to be driving by when it happened? Compare the footage with the press release and let me know your thoughts on the matter. I have some initial thoughts, but want to look into it some more.

Here’s the statement issued by the sheriff’s department:

Here’s the footage:

Police Caught on Doorbell Video Removing FJB Flag

A video went viral on Tik Tok showing Ring doorbell camera footage of a police officer removing a family’s “F” Joe Biden flag from its display on the front of the home. The homeowner explained in a subsequent video that he had been previously threatened with arrest for good ‘ole disorderly conduct if he continued to display the flag. Is this a violation of the First Amendment? What about the Fourth Amendment?

Back in February, I discussed the “F” the police T-shirt case out of Ohio, where the 6th Circuit issued an opinion denying qualified immunity to police officers sued for arresting a man for “disorderly conduct” for wearing a shirt containing protected First Amendment speech. In that case, the Court made very clear that police academies have to stop teaching young officers that any use of profanity is disorderly conduct. To the contrary, the law is clear that the First Amendment protects the use of profanity, so long as it’s unaccompanied by other conduct that could be construed as disorderly. Thus, the use of the “F word” in and of itself cannot be criminal conduct.

“It is well-established that ‘absent a more particularized and compelling reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, make the simple public display of a four-letter expletive a criminal offense.’”

Cohen v. california scotus 1971

Not only can the “F word” be used, but it can be used to verbally criticize the police. Or, in this case, Joe Biden. As the U.S. Supreme Court has held, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state….”

Moreover, expressing criticism of a sitting U.S. President, via use of a flag, is pure First Amendment protected activity. The homeowner mentions in his follow up video that he had researched the town ordinances, and none were applicable, but rather that the mayor lived down the street and held an opposing political ideology. I’ll note that, even if there were a town ordinance, it would be unconstitutional, as a violation of the First Amendment. Now an HOA would be another matter, potentially. Why? Because that’s a private organization, and therefore cannot violate the First Amendment.

Also, what about the Fourth Amendment? As I’ve explained numerous times, the front porch of your home, which would include a flag sticking out of it, is considered part of your home – your castle – for Fourth Amendment purposes. If a police officer walks up and seizes a part of your home – something off of it – is that a seizure? You better believe it. Is it illegal? Illegal in this context means “unreasonable.” Unreasonable, when it comes to your home, is defined with a question: was there a warrant? No, then it’s illegal as a violation of the Fourth Amendment.

Federal lawsuit filed against Parkersburg Police officers caught on video setting up a false arrest

Recently we filed a federal civil rights lawsuit in federal court, alleging that Parkersburg, West Virginia police officers were caught on video setting up the false arrest of a man for allegedly committing battery on a police officer. Fortunately there was surveillance footage, which was shown at the man’s jury trial, resulting in his acquittal. Warrantless arrests require the existence of probable cause. If no probable cause exists, for instance in the event that the arresting officers themselves create the alleged nonexistent crime, the Fourth Amendment is violated. “False arrest” is basically a type of unreasonable search and seizure.

Here’s the complaint, and the video will follow shortly:

Federal Lawsuit Filed in the Creepy Cops Caught on Video Case

The lawsuit was filed today on behalf of Dustin Elswick, against Putnam County, West Virginia, along with four police officers involved in the infamous “Special Enforcement Unit.” These are the cops who were caught on hidden camera searching the inside of Dustin’s home. Although they cut the wire on an outside surveillance camera, they were apparently unaware of the cameras inside the home.

This is a federal “Section 1983” lawsuit alleging the violation of federal constitutional rights; namely, the Fourth Amendment right to be free from unreasonable search and seizure. A warrantless search of your home is automatically unconstitutional in the absence of one of two exceptions: consent, or exigent circumstances (emergency), neither of which apply here. Two prior federal lawsuits have already been filed against the SEU thus far for similar allegations in the Johnson case, as well as the Dillon case. The remedy is an award of money damages, along with reasonable attorney fees and expenses.

There was an internal investigation, as the news reported, but we never received information about the outcome. That sheriff has since been replaced.

Here’s the Complaint:

Here’s the original video:

Here’s the update video:

Does the First Amendment Only Apply to Media? Is There a Right to Record?

Do you have to be a journalist to have First Amendment protections to film in public? Is there a right to record police or other government officials in public? Let me tell you what the federal courts have said…..

To record what there is for the eye to see, or the ear to hear, corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public. See PG Publ’g. Co. v. Aichele, 705 F.3d 91, 99 (3d Cir. 2013); Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (quoting Fields v. City of Phila., 862 F.3d 353, 359 (3rd Cir. 2017)).

Under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas. Fields v. City of Phila., 862 F.3d 353, 360 (3rd Cir. 2017) (“The First Amendment protects actual photos, videos, and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material.” (citation omitted)); See also ACLU v. Alvarez, 679 F.3d 583, 599–600 (7th Cir.), cert. denied, ––– U.S. ––––, 133 S.Ct. 651, 184 L.Ed.2d 459 (2012) (holding that an Illinois eavesdropping statute did not protect police officers from a civilian openly recording them with a cell phone); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017) (“[T]he First Amendment protects the act of making film, as there is no fixed First Amendment line between the act of creating speech and the speech itself.” (quotation omitted); W. Watersheds Project v. Michael, 869 F.3d 1189 (10th Cir. 2017) (agreeing with several sister circuits that recording the conduct of officials in general is protected First Amendment speech); Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir.2011) (holding there is an “unambiguous[ ]” constitutionally protected right to videotape police carrying out their duties in public); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (finding plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing plaintiff’s videotaping of police officers as a “First Amendment right to film matters of public interest”). 

Furthermore, there can be no doubt that the public has the right to record police officers and government officials from the vantage point of standing on their own private property – and indeed, standing in their own front yard, or within their home.

Can the recordings then be seized by police?

Recently, the Fourth Circuit observed in the context of a claim of seizure of cell phone video footage by law enforcement, that we live “[i]n an era in which cell phones are increasingly used to capture much of what happens in daily life” and that such recordings are protected from seizure by law enforcement under the Fourth Amendment. Hupp v. State Trooper Seth Cook, 931 F.3d 307, 329 (4th Cir. 2019).

But, keep in mind, they could still be subject to seizure without a warrant under the exigent circumstances doctrine…..