If you can get arrested for recording a police officer conducting public business in public, who isn’t off limits? To her credit, Florida appellate Judge Martha C. Warner made it clear this week in a strongly written judicial smackdown that videotaping the police is not only legal but essential. While two of her colleagues on the 4th District Court of Appeal took a pass on the taping issue, she penned the legal equivalent of “Are you kidding me?”
Before we get to Warner’s dissent, some quick background. In 2009, Tasha Ford came to a movie theater where Boynton Beach officers were questioning her son about sneaking in without paying. She pulled out a camera to record the interaction. The police warned her that it was illegal to tape them without their consent and eventually arrested her for obstruction and videotaping, in effect, accusing her of an illegal wiretap and of violating their privacy. Charges were dropped, but she sued the city — and lost on appeal this week. The two concurring judges said there was probable cause to arrest Ford on the obstruction charge, so they did not need to address the taping charge. To put it mildly, Judge Warner disagreed.
Excerpts of her dissent.
This appeal arises out of a familiar scene on the news at night: the videotaping of the police during an arrest. ... The alleged violations occurred when (the boy’s mother, Tasha Ford) was videotaping the officers as they were detaining her son. ... The officers had no reasonable subjective expectation of privacy when they were conducting the detention, so they did not have probable cause to arrest her for violating the wiretap statute. And, (the mother) did not physically obstruct the officers but only asked questions, which did not provide probable cause to arrest her for obstruction.
I would hold that a law enforcement officer has no reasonable subjective expectation of privacy in conversations he has with the public or the arrestee in the performance of the officer’s duties in public places. They are performing a public duty at the time, and the public has a right to hear their words. This is as true today as it was in 2009. A rule otherwise would mean that everyone who pulls out a cell phone to record an interaction with police, whether as a bystander, a witness, or a suspect, is committing a crime.
Given how important cell phone 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. If that were the case, then had the individual who recorded George Floyd saying to the officers “I can’t breathe” been in Florida, (she) would have been guilty of a crime.
The facts of this case seem to be only too similar to so many police encounters caught on video or cell phones. The officers had no reasonable expectation of privacy in their conversations while performing their public duties, particularly in public spaces. Given the prevalence of small video cameras and cell phones 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.
Judge Warner gets it exactly right. Cameras are everywhere. Police wear them, and smart phones have them. They can give a fuller picture of what the police do — both to clear them of wrongdoing and to hold them up for appropriate public scrutiny. Just think how different the Derek Chauvin murder trial in Minneapolis would have been under a pinched understanding of the public’s right to record.
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