Federal Judge to Camera-Shy Austin Cops: People Have a Right to Record You. Deal With It.

As
my colleagues and
I frequently note, Americans have a well-established
constitutional right to record police officers as they publicly
perform their duties. Yet cops across the country continue to
harass and arrest people for exercising that right, using bogus
charges such as wiretapping, resisting arrest, and interfering with
police. Yesterday yet another federal judge issued a clear message
to those cops: Cut it out.

The case was brought by Antonio Buehler, an Austin, Texas,
activist who has had several run-ins with camera-shy cops. The
first incident occurred on January 1, 2012, when Buehler pulled
into a 7-11 in Austin to refuel his truck and observed a traffic
stop during which police dragged a screaming passenger from a car
and knocked her to the ground. After Buehler took out his phone and
began taking pictures of the encounter from a distance, Officer
Patrick Obosrki manhandled him and arrested him for “resisting
arrest, search, or transportation.”

Buehler filed a complaint about the incident with the Austin
Police Department but never received a satisfactory response. The
experience led him to start the Peaceful
Streets Project, which aims to help
“individuals understand their rights and hold law
enforcement officials accountable.” The
organization routinely records police encounters “to prevent and
document police brutality.” That work led to two more arrests of
Buehler, both for “interference with public duties,” on August 26,
2012, and September 21, 2012. The third arrest again involved
Oborski. On both occasions police took Buehler’s camera and never
returned it.

In response to Buehler’s federal lawsuit, Oborski
and several other officers claimed they did not realize he had a
right to record them. But according to U.S. Magistrate Judge Mark
Lane, they really should have. In yesterday’s
decision, which allowed the lawsuit to proceed, Lane cited “a
robust consensus of circuit courts of appeals”—including the 1st,
7th, 9th, 10th, and 11th—that “the First Amendment encompasses a
right to record public officials as they perform their official
duties.” He also notes two decisions in which the U.S. Court of
Appeals for the 5th Circuit, which includes Texas, “seems to
assume, without explicitly stating, that photographing a police
officer performing his official duties falls under the umbrella of
protected expression.”

This is not some newly discovered right that Oborski and
his colleagues might have understandably overlooked. To the
contrary, it rests on longstanding principles repeatedly recognized
by the Supreme Court. “If a person has the right to
assemble in a public place, receive information on a matter of
public concern, and make a record of that information for the
purpose of disseminating that information,” Kane writes, “the
ability to make photographic or video recording of that information
is simply not a new right or a revolutionary expansion of a
historical right. Instead, the photographic or video recording of
public information is only a more modern and efficient method of
exercising a clearly established right.” He therefore concludes
that Oborski et al. cannot claim qualified immunity by arguing that
the right was not clearly established at the time of Buehler’s
arrests.

In addition to
his First Amendment claims, Buehler accuses Oborski and the others
of false arrest, and Kane allowed him to pursue those claims as
well. The charge of resisting arrest—which in Buehler’s case
presumably referred to the arrest that he photographed in the first
incident, as opposed to his own arrest for resisting
arrest—involves “using force,” and Buehler claims he never did
that. “Accepting as true Buehler’s factual allegations,”
Kane writes, “Oborski and [Officer Robert] Snider did
not have probable cause to arrest Buehler on January 1, 2012 for
Resisting Arrest, Search, or Transportation.” A
charge of interference with public duties is also inconsistent with
the facts as described by Buehler, says Kane, since he claims he
was merely observing and recording, which he had a right to
do.

In addition to Oborski, Snider, and the other officers, Buehler
is suing the city of Austin and the Austin Police Department,
arguing that they had an obligation to make sure that cops
understand their constitutional obligations. This sort of decision
is important not only because it highlights a right that police are
bound to respect but because it puts them on notice that they can
be held personally liable for violating it.