E.D.Cal.: Police deleting ptf’s computer file of police searching probationer’s home violates First Amendment

A police officer violated plaintiff’s First Amendment rights when he took her computer while she was recording their search of her house. No qualified immunity: If a citizen has a right to record the police in public, they sure do in their own house. Crago v. Leonard, 2:13-cv-531-TLN-EFB PS (E.D. Cal. August 5, 2014) (R&R):

The complaint alleges that defendant violated plaintiff’s rights under the First Amendment when he took her laptop away after she informed him that she was recording the search of her residence. ECF No. at 2. As early as 1995, the Ninth Circuit has recognized a “First Amendment right to film matters of public interest.”4 Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). Other circuits have similarly held that the First Amendment protects an individual’s right to record police officers in the course of carrying out their duties. See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2001) (“The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [the First Amendment].”); Gilles v. Davis, 427 F.3d 197, 212 n.14 (3rd Cir. 2005) (“[V]ideotaping or photographing the police in the performance of their duties on public property may be protected activit[ies]”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property,” including the right “to photograph or videotape police conduct.”).

4 The Ninth Circuit, in an unpublished case, has also held that there is a clearly established
constitutional right to photograph an accident scene during a police investigation. Adkins v.
Limtiaco, 537 F. App’x. 721, 722 (9th Cir. 2013) (citing City of Houston v. Hill, 482 U.S. 451,
461 (1987); Fordyce, 55 F.3d at 439).

Defendant argues, however, that there is a split in authority which demonstrates that the right to record a police officer conducting official business is not a clearly established right under the First Amendment. ECF No. 35-1 at 6. Relying on Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010) and Szymecki v. Houck, 353 F. App’x. 852 (4th Cir. 2009) (per curiam), defendant argues that there is “conflict and ambiguity amongst the Court of Appeals” and therefore defendant is entitled to qualified immunity.

The cases cited by defendant run against the majority of circuit authority, as well as the weight of district-court decisions. See Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 601 n. 10 (7th Cir. 2012) (finding that the First Circuit’s decision in Glik aligns with authority from other circuits). Furthermore, and more importantly, the law in this circuit has been well established for several years that there is a “First Amendment right to film matters of public interest.” Fordyce, 55 F.3d at 439. The Ninth Circuit’s more recent unpublished case, relying in part on Fordyce, recognized the breadth of that ruling by finding that the law clearly established
as to the constitutional right to photograph an accident scene during a public investigation.
Adkins v. Limtiaco, 537 F. App’x. 721, 722 (9th Cir. 2013) (citing City of Houston v. Hill, 482
U.S. 451, 461 (1987) and Fordyce, 55 F.3d at 439). For similar reasons, the court finds that under
the law of this circuit there is and was on December 7, 2012, a clearly established right to record
police officers carrying out their official duties.

Defendant attempts to narrowly define the issue in this case for purposes of the immunity analysis. He argues that there are no cases holding that a probationer, such as plaintiff, has a clearly established First Amendment right to record a search of her residence conducted pursuant to her searchable probation status. According to defendant, all relevant case law, including the cases previously discussed, only establish the right to record a police officer in public.5 ECF No. 35-1 at 5-6. While the distinction is noted, it is one lacking any meaningful difference here. The location of where the video recording was being made was plaintiff’s place of residence. If a plaintiff has a clearly established constitutional right to record from a public place where the plaintiff has the lawful right to be, a plaintiff surely has such a right in his or her home. There simply is no principled bases upon which to find that although the right to record officers conducting their official duties only extends to duties performed in public, the right does not extend to those performed in a private residence. The public’s interest in ensuring that police officers properly carry out their duties and do not abuse the authority bestowed on them by society does not cease once they enter the private residence of a citizen. To the contrary, there appears to be an even greater interest for such recordings when a police officer’s actions are shielded from the public’s view. Further, there is no reason to believe that plaintiff’s status as a probationer would diminish the public’s interest in how police exercise their authority in a private citizen’s homes.