Home video cameras are certainly handy at catching law enforcement violating your constitutional rights. Check out those prior videos if you want to hear me discuss the constitutional rights at play in those incidents. But did you know that the government is also actively using them as well? Do you have a Ring doorbell? How is the footage stored? Can the police obtain that footage against your will, even if you’ve done nothing wrong? What if I told you that Ring just might provide stored footage from cameras inside and around your home to police, even without your consent?
A guy named Michael Larkin was featured in a Politico article. His story exemplify what can happen to you if you use Ring doorbells. He’s a business owner in Hamilton, Ohio, and has a Ring doorbell camera and 20 other Ring cameras in and around his home and business. Five of those cameras surround his house, which record in 5 to 15 second bursts whenever they’re activated. He also has three cameras inside his house, as well as 13 cameras inside the store that he owns. All of these cameras are connected to his Ring account. Ring, the company, stores this footage on their servers for up to 180 days. He thought his footage was his own private footage. But he thought wrong.
One of the excessive force cases we’ve been following just settled, and you may or may not be surprised at the settlement amount. This is the one in Kentucky where a man was arrested inside his parents’ home and was beaten – not terribly – but still beaten, by two Kentucky State Troopers. Then the dad goes to get his cell phone and starts filming. The troopers then took the phone and deleted the footage. Well, as sometimes happens, the parents had interior surveillance cameras that the cops did not know about. My buddy Chris Wiest files a lawsuit against them; puts them under oath at their depositions, and asks them about it. Both troopers denied striking the guy. Unfortunately for them, they had been caught on camera.
On April 9, 2020, Kentucky State Troopers James Cameron Wright, Thomas Czartorski, and a third trooper, Kevin Dreisbach, went to the Hornbacks’ home in Shepherdsville, Kentucky, to arrest 29-year-old Alex Hornback for a missed appearance in Jefferson District Court. Hornback’s mother and father met them at the door and led Wright and Czartorski to the basement, where their son was, while Dreisbach covered the rear of the house.
Czartorski and Wright testified in their January 2021 depositions that they had a relatively calm interaction with Hornback, despite taking him to the floor, and that they didn’t use any other force or strike him.The Hornbacks’ lawyer later released a home-security video contradicting the troopers’ statements. The video showed Wright grabbing Hornback around the neck and slinging him to the floor, though Hornback was not visibly resisting. The video also showed Czartorski striking Hornback four times on the legs with his flashlight. Wright hit Hornback twice in the back with his right forearm and appeared to have his left knee on Hornback’s neck, pushing his face into the floor. Hornback did not suffer any serious injuries.
Most people understand and accept that citizens have a constitutional right to record video of interactions with police officers, at this point – in general. Law enforcement has fought that every step of the way, of course. But is there a right to “livestream” encounters with police officers? More specifically, does a passenger of a vehicle detained at a traffic stop have a constitutional right to livestream the encounter from his cell phone?
Dijon Sharpe was a passenger in a car stopped for a traffic violation in Winterville, North Carolina on October 9, 2018. WPD officers Myers Helms and William Ellis performed the stop. Sharpe began live streaming the encounter with Facebook live. Helms told Sharpe that he could record the traffic stop from inside the car during the encounter but not livestream the traffic stop from inside the car during the traffic stop.
At the beginning of the stop, while the driver and Mr. Sharpe waited for the officers to approach the vehicle, the driver called a third party on his cell phone in order to have a witness to what was happening. Meanwhile, Sharpe began live-streaming what was happening on his Facebook account. The livestream shows that, during the stop, the driver continued his conversation with the third party on his cell phone during the entire course of the stop, including while speaking with the officers. The footage shows the interaction between Mr. Sharpe – the passenger – and Officer Helms. The video shows Officer Helms asking for Mr. Sharpe’s identification and then returning to the police vehicle. During this time, the driver continued his conversation with the third party over the cell phone, explaining that police had begun following the vehicle for some time before initiating the traffic stop. He expressed concern that he had been racially profiled.
As the driver was talking to the third party on his phone, Sharpe talks into his phone, reassuring viewers on Facebook live that he was fine, advocating for his practice of recording interactions with law enforcement. According to the lawsuit he would subsequently file, Sharpe began recording because he had been the victim of a brutal beating at the hands of police officers in the nearby town of Greenville ten months earlier, during a traffic stop. That experience prompted him to ensure any future interactions he had with law enforcement would be recorded for his own protection.
After emerging from the police vehicle, Officer Helms is seen on the video approaching the car window. He says, “What have we got? Facebook Live, cous?” As soon as Mr. Sharpe responds affirmatively, Officer Helms abruptly thrusts his arm through the passenger window and attempts to seize Mr. Sharpe’s cell phone, while pulling on Sharpe’s seatbelt and shirt. During this altercation, Officer Helms tells Sharpe: “We ain’t gonna do Facebook Live, because that’s an officer safety issue.”
Shortly afterwards, following the issuance of citations to the driver, Officer Ellis states: “Facebook Live . . . we’re not gonna have that, okay, because that lets everybody y’all follow on Facebook that we’re out here…” He says that recording is fine, but if you’re live, your phone is gonna be taken. Otherwise you’re going to jail. Sharpe then asked Ellis if that was a law. Ellis responded that it was a violation of the RDO statute, which is basically North Carolina’s obstruction statute. In the end, the phone was not seized. There was no citation or arrest pertaining to the livestreaming. However, the threat was made that next time, the phone would be seized and an arrest would be made if the phone was not forfeited.
In Mr. Sharpe’s video, look how the officer is standing there watching Sharp and the driver and treating them like they’re up to no good. Yet the reason for the stop was supposedly a basic traffic violation. The officer asks for Sharp’s ID because “he likes to know” who he’s out with. Is it any wonder that police officers get the reputation they have?
Based on the incident, as well as the threat to stop livestreaming in the future, under penalty of arrest, Sharpe sued the officers and the Town of Winterville under Section 1983 for violation of the First Amendment. The district court dismissed the claims against the individual officers on qualified immunity grounds, holding that it was not clearly established in October of 2018 that a passenger in a stopped vehicle had a constitutional right to record and live broadcast the interaction. Additionally, the Court held that live-streaming by a vehicle passenger poses a “unique” threat to officer safety that mere recording does not and is therefore not clearly protected under the First Amendment.
Eleven months later, the district court dismissed the claim against the Town of Winterville on the grounds that Mr. Sharpe had no constitutional right to live broadcast at all, and that even if he did, the town’s policy of arresting traffic stop passengers for live-streaming passes constitutional review under intermediate scrutiny. The district court held that “[r]ecording a traffic stop for publication after the traffic stop versus livestreaming an ongoing traffic stop from inside the stopped car during the traffic stop are significantly different.”
“[L]ivestreaming the interaction from inside the stopped car during the traffic stop … allows … those watching, to know the location of the interaction, to comment on and discuss in real-time the interaction, and to provide the perspective from inside the stopped car,” JA81. “The perspective from inside the stopped car, for example, would allow a viewer to see weapons from inside the stopped car that an officer might not be able to see and thereby embolden a coordinated attack on the police.” Thus the Court concluded that Mr. Sharpe had no First Amendment right to live-stream.
Mr. Sharpe appealed to the Fourth Circuit. It drew significant attention from civil liberties and press advocates. Seven amicus briefs were filed in support of his claims. Here’s Sharpe’s opening brief:
Oral arguments were held last month, which involved a heated discussion between one of the federal judges on the panel and the lawyer representing Mr. Sharpe. During the oral arguments, the federal judge seemed highly concerned about the rights of police officers, as opposed to the rights of an innocent citizen being detained as a passenger in a traffic stop. Listen for yourself.
The Fourth Amendment grants no rights to officers. “The right of the PEOPLE to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …” Its purpose is to guarantee individual rights against the power of the government.
This flies in the face of actual Fourth Amendment law. They are using amorphous and general concerns over “officer safety” that are not particular to the individual they are seeking to restrict. In other words, the officers here, and those advocating for them to do so, want the officers to have the power to stop livestreaming, based only on obscure general concerns over officer safety. Theoretically, if some bad guy was watching the livestream he could find the location while the stop is in progress and theoretically harm the officers or cause some other safety issue.
They’re not saying that this particular individual should not livestream under these circumstances, because that person is a particular safety threat and those facts can be demonstrated in court or to a judge. They’re using blanket reasons. Again, that flies in the face of existing Fourth Amendment law, which requires particularity to the individual for things like frisks and searches. Blanket reasons never go well with constitutional law. Usually we’re told that law enforcement actions were justified based on the “totality of the circumstances.” Well now, because they hate video footage, we no longer look at the totality of the circumstances, but rather, at the vague concept that police officers are afraid of absolutely everything and everyone.
The fact is, freedom is scary. They need to deal with it, or get another job. We cannot and must not appease that fear.
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?
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:
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.
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:
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.
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…..