Making Movies - The 4th Amendment and Filming the Police - Carlos GaminoBy Carlos Gamino

“Delete it! Delete it! It’s for the safety of the officers…” an officer is heard saying on a dashcam video released during a hearing in April, in which a Grand Rapids, Michigan man claims that police have violated his constitutional rights.

James King, 23, has alleged that both his Fourth and Fourteenth Amendment rights were violated in 2014 during an arrest carried out by undercover officers. Though King was subsequently acquitted of all charges—he was misidentified by police as a suspect—he contends that he was falsely arrested, physically beaten and maliciously prosecuted.

During King’s apprehension and arrest, a number of private citizens with cell phone cameras converged on the scene, capturing what critics consider police misconduct. This elicited the above response from an officer at the scene, who insisted that at least two onlookers cease filming and delete any film taken. Therefore, the James King case has raised the larger question— can the police order a private citizen to delete footage of their actions in public? Moreover, do they have the right to seize such evidence?

From a constitutional perspective, the answer should be no.

This works on two levels, but the first and most obvious is the Fourth Amendment, which protects citizens from unlawful search and seizure of private property by an agent of the government.

It’s legal for a citizen to photograph or film a police officer performing his or her job in public, as long as that citizen is not physically interfering in any way, nor breaking any laws while doing so. The photos or video are the property of the camera’s owner.

And then there’s the First Amendment.

In 2011, the US Court of Appeals for the First Circuit in the case of Glik v. Cunniffe ruled that private citizens have the right to record public officials—including police officers—in a public place. The court’s ruling maintained the First Amendment’s forbidding of laws “abridging the freedom of speech, or of the press… encompasses a range of conduct related to the gathering and dissemination of information.”

As a precedent, the ruling also cites a previous Supreme Court decision that citizens have the right to gather news or information “from any source by means within the law.”

Though a police officer may have a sound reason for asking you to delete a photo or video from your phone, remember that you may have the right to record under the U.S. Constitution.

What Do You Think?

Have you had experiences similar to this one? I’d love to hear your thoughts on police asking people to delete footage they’ve taken, so feel free to share them on my Twitter feed or on Facebook.

Carlos Gamino