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To Address Any Confusion as to Federal Law and Policy and Why Videoing in a Post Office is 100% Lawful and Legal

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Remember the First Amendment –
So Smile . . . You May Be on Candid Camera
Tim Miller


 

Attorney Advisor / Senior Instructor
Office of Chief Counsel / Legal Division
Federal Law Enforcement Training Center
Glynco, Georgia
The Candid Camera television program began with a little jingle, “When the least expected,
you’re elected, you’re the star today …” The program caught ordinary people on camera in
some of life’s less than ordinary, embarrassing situations. Candid Camera was funny, and the
stars seemed to take it in good fun. The same has not always been true for police officers
caught on camera by private citizens. Officers have seized recording devices and even
arrested the people recording them. But their embarrassment was not so much being caught
on the camera; it was the subsequent lawsuit for civil rights violations.1
To start, the First Amendment provides that Congress shall make no law abridging the
freedom of speech or of the press.2
Freedom of expression prohibits the government from
limiting the pot of information from which the public may draw. And anyone – a professional
journalist or a citizen journalist with no training – may add to the pot.3
Notably, the
assassination of President John F. Kennedy and the beating of Rodney King were recorded by
bystanders. More and more, scenes on the evening news are coming from people with a ready
cell phone or digital camera who just happened to be there.
The right to make audiovisual recordings of public officials is highest in public forums.
Public forums are public places like city streets, sidewalks, and parks – – places where the
people have traditionally exercised First Amendment freedoms.4
The right could be described
this way: The people have a qualified right to openly record police officers performing their
1 Constitutional tort claims may be brought against a law enforcement officer under two separate, but related,
bases. Title 42 U.S.C. § 1983 allows plaintiffs to sue public officials acting under color of state [local, territorial,
or District of Columbia] law. Section 1983 was enacted in April 1871 in the wake of the American Civil War as
part of the Civil Rights Act of that era. Noticeably absent was any mention of federal officials – acting under
color of federal law. Federal officials remained immune from suit under § 1983 until June 1971. Just a couple
of months after § 1983’s 100th Anniversary, the Supreme Court decided Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971). In Bivens, the Court created an analogy to § 1983. The so called Bivens
Analogy allows plaintiffs to sue federal officials, acting under color of federal law, for certain Constitutional
violations.
2 The First Amendment provides in part that “Congress shall make no law … abridging the freedom of speech, or
the press…” Title 42 U.S.C. § 1983 is authority to sue state and local officers for First Amendment violations.
See for example Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014)(city police officers were sued under §1983 after the
plaintiff was arrested for attempting to make an audio visual recording of a traffic stop) and Glik v. Cunniffe, 655
F.3d 78 (1st Cir. 2011)(city police officers were similarly sued after the plaintiff was arrested for recording an
officer effecting an arrest in a public park.) The Supreme Court has assumed, without deciding, that the Bivens
Analogy allows First Amendment claims against federal officers. See Wood v. Moss, 572 U.S. ___, 134 S. Ct.
2056, 2066 (2014).
3 The First Amendment extends further than the text’s proscription on laws abridging the freedom of speech, or
of the press, and encompasses a range of conduct related to the gathering and dissemination of information. See
Gericke, 753 F.3d at 7 (the Constitution protects the right of individuals to videotape police officers performing
their duties in public); ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012)(audio and audio visual recordings are
media of expression commonly used for the preservation and dissemination of information and are included
within the free speech and free press guaranty); and, Glik, 655 F.3d at 82. 4 See McCullen v. Coakley, 573 U.S. ___, 134 S. Ct. 2518 (2014).
5

duties in public forums when the officers are speaking at a volume audible to the unassisted
ear. One example might be recording a police officer effecting an arrest in a public park.
Another might be filming a traffic stop from a sidewalk.5

If someone is in a public forum, he probably has a right to record the sights and sounds
around him. That would include a citizen standing on a public sidewalk and photographing
the exterior of a government building. As a result, an officer who seizes the recording device
of a person filming the exterior of a federal courthouse may face the same predicament as
another officer who seizes the recording device of someone filming the officer.6
But I don’t like it… No doubt, the officers involved in these lawsuits did not like it, either.
Bystanders videotaping a traffic stop or arrest may be distracting. And after the bombing of
the Alfred P. Murrah Federal Building in Oklahoma City and other terrorist attacks, someone
standing on a sidewalk and photographing the bland exterior of a public building may seem
suspicious. Still, this is what separates the United States from police states. Our system of
government expects law enforcement officers to endure significant burdens caused by citizens
exercising their First Amendment rights. Even provocative and challenging speech, along
with videotaping, falls within the protection of the First Amendment. Name calling,
questioning an officer’s authority, or telling the officer, “You’ll be on the evening news” –
that all goes with the job.7

But there must be exceptions… Obviously there are – exceptions. An order to stop recording
can be constitutionally imposed when an officer can reasonably conclude that the filming is
subject to a reasonable time, place, or manner restriction. Reasonable? For one, an officer
may have a reasonable expectation of privacy in what is being said. The federal wiretap
statute for example would prohibit someone from using a sensitive audio recording device,
like a parabolic microphone, to eavesdrop on the conversation of an officer and witness after
the two separated themselves from the crowd and made other reasonable efforts to keep their
conversation private.8

Even an open recording may be subject to a reasonable restriction. Since officers can control
the movements of the occupants of a car during a traffic stop, ordering a passenger to get back
in the car may be reasonable despite the passenger’s objection that “I can’t put you on the
evening news from back there.” Some traffic stops, particularly when the detained individual
is armed, might justify a safety measure – – for example, a command that bystanders disperse.
And a preexisting statute, ordinance, or other published restriction may limit where someone
5 See Gericke, 753 F.3d 1; Glik, 655 F.3d 78; and ACLU, 679 F.3d 583. 6 See for example, Federal Protective Service Information Bulletin (Report Number HQ-IB-012-2010) dated
August 2, 2010 construing 41 C.F.R. § 102-74.420 not to prohibit individuals from photographing the exterior of
federal buildings from publicly accessible places. This article focuses on recordings made on traditional public
forums, not those made on government property. Government installations and other property that are not by
tradition or designation forums for public communication are non-public forums, and the government can
regulate speech, so long as the regulation is reasonable and not an effort to suppress expression merely because
public officials oppose the speakers’ views. See for example Greer v. Spock, 424 U.S. 828 (1976)(a military
installation is a non-public forum). 7 See Gericke, 753 F.3d at 8 (a right to film police activity carried out in public, including a traffic stop, remains
unfettered unless a reasonable restriction is imposed or in place)(citations omitted).
8 The federal government and nearly all states have statutes addressing wiretapping and eavesdropping
protecting conversational privacy. See for example the Omnibus Crime Control and Safe Streets Act of 1968,
Title 18 U.S.C.§§ 2510-2520 (2006).
6

can record. Imagine a curious onlooker who illegally parks his car beside the road and starts
filming.9
And the person photographing the federal building …? Obviously, a police officer has the
same rights as a private citizen. The officer can approach and ask questions, just like anyone
else. The officer can also effect a temporary, investigative seizure that is reasonable under the
Fourth Amendment if the officer can articulate facts that criminal activity is afoot. With
probable cause, even more intrusive measures can be taken. The suspect may be arrested and
a warrant issued to search the recording device.10
Quite simply, it is reasonableness that separates law enforcement in the United States from
law enforcement in police states. And reasonableness always depends on the officer’s ability
to articulate facts that justify the measures taken. Absent those facts, all the officer can do is
smile for the camera.

FLETC INFORMER 

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WATCH: Copwatch | Gang Unit Vehicle Stop Foot Bail | Tossed Gun | Man Tasered

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San Diego Copwatch April 10, 2018

4000 Chamoune ave. City Heights, Mid-City San Diego

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POLICE claim Man said ‘shoot me’ twice before he was shot to death by police, Audio Experts Heard Different

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Las Vegas Metro police shot and killed a 22-year-old man early Friday morning after he reached for a weapon and defied commands repeatedly, police said.

 

Officers Francisco Rivera, 28, and Padilla Mills, 23, were involved in the shooting in the 200 block of Madge Lane, near Charleston Boulevard and Sloan Lane.

Assistant Sheriff Brett Zimmerman on Monday said officers were on their way to another call when they spotted Junior David Lopez driving recklessly with two women in a blue Chrysler 300.

“Hey, what are you doing? Stay in the car man,” one of the officers yelled. “Stay in the ****ing car! Don’t move! Do not ****ing move!”

When officers stopped the vehicle, Lopez got out of the vehicle with a Smith and Wesson Bodyguard .380 firearm in his hand then tossed it on the ground, police said.

Zimmerman said Lopez defied officers’ commands to put his hands up and step away from the weapon. Instead Lopez grabbed the firearm and raised it, he said.

“Hey, get away from the gun!” officers yelled. “Do not move! Don’t reach for the gun, man. Do not reach the gun.”

Officers believe the body camera footage shows Lopez twice saying the words “shoot me.”

“I don’t know what was going through his head, but he was given ample opportunity to be taken into custody and he wasn’t,” Zimmerman said.

Officers Rivera and Mills both fired their weapons. Lopez fell to the ground and rolled over. Police say he reached for the guns once more. Officer Mills fired one more round, striking Lopez.

“We’re going to need medical for the subject,” one of the officers said, over his radio. “He’s reaching. Don’t reach for it! … His 4-13 is about one foot from his left hand. Don’t!”

Lopez was taken to Sunrise Hospital where he later died at 5:15 a.m.

The two women in the car were not injured. One was Lopez’ girlfriend and the owner of the vehicle. The other was a friend.

Both women on Monday night.

“I remember when we got pulled over they told us to get the **** out of the car, for him to get the **** out of the car. Why don’t I hear that in the video?” said Lopez’s girlfriend, Amber. “He was the best thing in my life… He said, ‘Don’t shoot me. Don’t shoot me. Don’t shoot me.’ You can’t hear the don’t, but you can hear him. ‘Don’t shoot me. Don’t shoot me.'”

Assistant Sheriff Brett Zimmerman said 22-year-old Junior Lopez told officers to shoot him, twice.

“I don’t know what was going through his head but he was given ample opportunity to be taken into custody and he wasn’t.”

Lopez’s girlfriend said he was yelling, “Don’t shoot me!”

Lopez’s girlfriend also says officers told him to get out of the car… before they yelled at him to get back in the car. She argues that the first portion was conveniently cut out of the video released today.

“Everything they said is not true,” said Jorge Luis Martinez, Lopez’s father. “The video is not complete. ”

Lopez had one prior charge for false statement to a police officer in North Las Vegas in 2016

Both officers have been employed with Metro since May 2016. They are both assigned to the Community Policing Division Northeast Area Command. They were both placed on routine paid administrative leave pending the outcome of the investigation.

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Freedom of Speech Everywhere except a Courthouse so Says the US Attorney General

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How an anti-illegal immigration YouTuber turned a $280 fine into a federal criminal trial

How an anti-illegal immigration YouTuber turned a $280 fine into a federal criminal trial

Gary Gileno

Gary Gileno is shown outside the federal courthouse on Friday before his trial. Gileno was fighting a $280 citation for failing to comply with orders while trying to bring a video camera into a L.A. County Sheriff oversight meeting in 2017. (Kent Nishimura / Los Angeles Times)

 

It began as a $280 citation for using a video camera in a courthouse.

But to Gary Gileno, at stake was much more than the couple hundred bucks he was told to pay.

An attorney for the anti-illegal immigration activist and prolific YouTuber told a judge Friday that the four-hour trial over the fine was really about preventing government abuse of power, protecting the rights of journalists and ensuring that citizens can hold public officials accountable.

“If he is convicted … it’ll chill speech, it’ll chill journalism, it’ll say the federal government has a superpower to do whatever it wants,” attorney William Becker said. “This is unprecedented. This is what we expect to see in a police state.”

A federal prosecutor dismissed the rhetoric, arguing the Class C misdemeanor charge was simply about Gileno’s refusal to follow a security officer’s orders.

The unusual legal battle came after Gileno, 32, tried to bring a video camera into a meeting of the Los Angeles County Sheriff Civilian Oversight Commission last year. California law specifically allows the public to use recording devices at such meetings, but the commission’s meeting in August was held at a federal appellate court building where filming is prohibited.

Someone just detained at federal courthouse, where public Sheriff Civilian Oversight Commission meeting takin place, 4 trying 2 take pic

The commission, a civilian panel set up to monitor the Sheriff’s Department and listen to public concerns about the agency, had been gathering in different locations around the county since it began meeting in January 2017. This was the first time commissioners had met at the 9th Circuit Court of Appeals building in Pasadena.

As Gileno entered the courthouse, deputy U.S. marshals told him he had to leave his camera in his car. Gileno insisted he had a right to record the meeting under the First Amendment and the state’s open meetings law, known as the Brown Act, and began filming the officers.

They responded by handcuffing and detaining him for about an hour.

After Gileno was cited, Robert C. Bonner, a former federal judge who chairs the commission, told The Times he wasn’t aware of certain provisions of the state’s open meetings law and relied on the county’s lawyers for legal advice.

Rather than pay the fine, Gileno opted to take his case to trial, facing a penalty of up to a $10,000 fine and 30 days in jail if found guilty.

Gileno, who began his YouTube career after showing up at his local council meeting in West Covina, said he has made a living off of his channel in recent years. His copious videos — 3,237 and counting — focus primarily on denouncing illegal immigration and promoting supporters of President Trump. His criminal case may have been a boon for his channel — a recent screed on his own prosecution was viewed more than 10,000 times.

On Friday, two court security officers who clashed with Gileno took the stand and testified that there were signs clearly posted saying photography wasn’t allowed in the courthouse. They said Gileno grew belligerent and disruptive, turning on his camera after being warned several times that it was not allowed.

Testifying in his own defense, Gileno said he was a freelance citizen journalist who has attended and filmed local government meetings and legislative town halls for about five years.

“I believe in the United States of America, you should be able to keep tabs on the government,” he said.

In more than 250 other public meetings he attended, he said, he never had an issue with bringing in his video camera. He said the security officer all of a sudden “exploded” at him, so he turned on his camera “to document what I felt was a violation of my rights at the time.”

Assistant U.S. Atty. Benedetto Lee Balding said Gileno’s disruption of security officers working at the 9th Circuit Court of Appeals was no small matter. It was Gileno who escalated the encounter by refusing to go along with the officers’ orders, he said.

“He decided unilaterally he didn’t have to follow the rules,” the prosecutor said.

Becker, who primarily represents conservatives and Christians in free-speech cases, worked for free on Gileno’s case. He argued that the federal courthouse essentially became a “limited public forum” when it hosted the commission meeting, which Gileno should have been allowed to film under the state law.

Magistrate Judge Jean P. Rosenbluth said she could understand why Gileno was angry and frustrated given his past experience filming the meetings, but she said that didn’t excuse his failure to follow orders. Security at the appellate courthouse, where justices could be filmed without their knowledge, was a serious concern, the judge said.

“Even if these seem arbitrary or don’t make any sense to Mr. Gileno or anybody else, clearly they serve this very important purpose,” Rosenbluth said, finding Gileno guilty.

Acknowledging that a “misunderstanding” had led to the kerfuffle, the prosecutor recommended a sentence of no fine, which would leave Gileno having to pay just $35 in court fees. Rosenbluth said she felt the need for “some consequences” and ordered Gileno to pay a $50 fine, bringing his total penalty to $85 with the fees.

Gileno said he was “outraged” and “astounded.” After the verdict, he turned to nine supporters in the audience, including a man in a red “Make California Great Again” hat, and exclaimed, “I was never read my rights!”

His attorney said they would seriously consider an appeal and possibly a civil lawsuit against the government.

“What the judge just said is if a city council can move to a federal building, they can keep the meeting secret,” Gileno said. “That’s grossly illegal.”

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