FORT LAUDERDALE — Taking smartphone videos of cops in public could shine a light on police misconduct — but it also could land you behind bars.
A divided Florida appeals court ruling on Wednesday upheld the arrest of a woman who filmed officers outside a movie theater.
The decision in a Boynton Beach case comes amid the nation’s racial justice awakening, after deadly police encounters with Black citizens were caught on camera. And it leaves open the question of whether a person recording George Floyd’s murder could have been arrested in Florida.
Officers had the authority to arrest a young mother named Tasha Ford who recorded them detaining her teenage son in 2009, based on a 2-1 opinion by judges at the 4th District Court of Appeal.
“In short, she obstructed their investigation and processing of her son’s detention — a lawful execution of their duty,” Judges Melanie G. May and Edward L. Artau wrote.
Recording the cops
Ford said in sworn testimony that she brought her digital camera to pick up her son, hoping it would prevent the cops from lying about what happened that night.
“Well, as you know, I’m Black. And in our community there are a lot of things that take place. And I don’t want to be a victim of those things,” Ford explained. “I thought if I had the camera, everyone would be honest and truthful.”
But it turned into a confrontation in the parking lot. Officers said they gave repeated orders for her to stop using the camera without their permission, as it was interfering with the investigation of the teen accused of sneaking into a theater.
Lawyers for the officers argued Ford invaded their privacy, justifying the charges of intercepting oral communications and obstruction without violence.
The appellate court judges in the majority did not comment on the issues about the video recording, aside from noting that they had watched it. They noted only that the police had “probable cause” to arrest Ford on the obstruction charge.
But Judge Martha C. Warner, in a lengthy dissent, wrote that the mom did nothing wrong and police should have no “reasonable” expectation of privacy in public places.
The judge warned that shielding cops from view would mean “everyone who pulls out a cellphone to record an interaction with police, whether as a bystander, a witness, or a suspect, is committing a crime.”
Warner went further as she declined to join the ruling that favored Boynton Beach police.
“Given how important cellphone videos have been for police accountability across the nation, I do not believe that society is ready to recognize that the recording of those interactions, which include audio recordings, are somehow subject to the officer’s right of privacy,” Warner explained.
Then she added: “If that were the case, then had the individual who recorded George Floyd saying to the officers ‘I can’t breathe’ been in Florida, he would have been guilty of a crime.”
Recorded for ‘everyone to see’
It was bystander Darnella Frazier’s nearly 10-minute smartphone video of 46-year-old George Floyd pinned to the ground by Minneapolis police that sparked worldwide protests and charges for the officers in Floyd’s death.
Frazier, then 17, didn’t break any laws to record the cops. She posted on Facebook that she had no regrets: “My video went world wide for everyone to see and know !!”
Last month, a jury that watched portions of the video convicted ex-cop Derek Chauvin of second-degree unintentional murder, third-degree murder and second-degree manslaughter.
“Would Derek Chauvin have been convicted without that videotape?” asked James K. Green, a prominent civil rights lawyer from West Palm Beach.
“Citizens filming police officers is absolutely essential to transparency and accountability,” Green said. “Without being able to record law enforcement officers engaged in interactions with citizens there’s no way really to hold them accountable. It’s just their word against the citizens.”
Federal courts across the country have found the public has a constitutional right to record cops. The general rule is that recordings are allowed as long as it doesn’t interfere with police doing their jobs.
The federal appeals court whose jurisdiction includes Florida has ruled people have “a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct.”
The State Attorney’s Office declined to prosecute Ford, but she sued the cops in a false arrest claim. The litigation continued for over a decade, as a trial court judge agreed with the officers and Ford appealed.
Samuel Alexander, Ford’s attorney from DeLand, north of Orlando, said they are disappointed with Wednesday’s outcome and considering “our next steps.”
“We agree with Judge Warner’s strong dissent that under the ‘well established’ law in Florida, there was no probable cause for arrest,” Alexander wrote in a statement.
Warner concluded that Ford should not have been charged with obstruction because she did not get in the way of the officers doing their job.
“She did not stand between her child and the officers so as to physically impede their duties,” the judge wrote. “She merely passionately expressed herself as any mother might do.”
But Warner said the case is a reminder of why it’s important for people to record cops in public.
“The facts of this case seem to be only too similar to so many police encounters caught on video or cellphones,” she wrote. “Given the prevalence of small video cameras and cellphones in public spaces, society has definitively come down on the side of approving the videoing of officers in the performance of their duties as a method of accountability.”