YOU’RE ON CANDID CAMERA: THE NEED FOR INDIANA
TO PROTECT CITIZENS’ RIGHTS TO RECORD POLICE
J. MICHAEL DEWEESE
*
“Home of the brave and free, free just to murder me. . . . Is this the new
national anthem?”
1
INTRODUCTION
On August 9, 2014, a 911 call is placed at Ferguson Market and Liquor in
Ferguson, Missouri, alleging that a strong-arm robbery has occurred. Less than
2
a mile away, Michael Brown and Dorian Johnson are walking down Canfield
Drive, having just left Ferguson Market and Liquor. Officer Darren Wilson of
3
the Ferguson Police Department was driving down Canfield Drive and
encountered Brown and Johnson walking in the middle of the street. From here,
4
the lack of video evidence of what actually transpired on that day has led to two
vastly different accounts of what happened next.
5
According to witnesses at the scene and Brown’s family, Officer Wilson
pulled up next to the boys and began yelling at them to get out of the street.
6
When the boys replied that they were very close to home, Officer Wilson put his
car in reverse and nearly hit the boys. Officer Wilson attempted to get out of his
7
car, but the car door slammed into Brown because of how close the car was to
him. Officer Wilson became angry and grabbed Brown by his neck, pulling him
8
into the window of the police car. Officer Wilson pulled his gun, threatened to
9
shoot Brown, and subsequently fired a shot that struck Brown somewhere near
his chest. Brown and Johnson began to flee, but they did not make it far before
10
* J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law; B.S. 2013,
Indiana University Purdue University–Columbus. I would like to thank my family and friends for
their continued love, faith, support, and encouragement throughout my life. I would especially like
to note a special thanks to Professor Lahny Silva for her critical guidance and motivation
throughout the entire Note-writing process.
1. T.I., NEW NATIONAL ANTHEM (Columbia Records 2014).
2. Rachel Clarke & Christopher Lett, What Happened When Michael Brown Met Officer
Darren Wilson, CNN (Nov. 11, 2014, 5:22 PM), http://www.cnn.com/interactive/2014/08/us/
ferguson-brown-timeline/index.html?iid=article_sidebar [http://perma.cc/J3D6-N74J].
3. Id.
4. Id.
5. Id.; Dueling Narratives in Michael Brown Shooting, CNN (Sept. 16, 2014, 6:19 AM),
http://www.cnn.com/2014/08 /19 /u s/ ferguson -michael- br own-du eling-narratives/
[http://perma.cc/9HZ6-SHWP] [hereinafter Dueling Narratives].
6. Dueling Narratives, supra note 5.
7. Id.
8. Id.
9. Id.
10. Id.
770 INDIANA LAW REVIEW [Vol. 49:769
Officer Wilson was able to fire a second shot that struck Brown. Brown turned
11
around to face Officer Wilson with his hands in the air, signaling that he was
giving up and no longer a threat. Officer Wilson disregarded that Brown was
12
surrendering and proceeded to fire more shots until Brown fell face first onto the
pavement, dead.
13
Officer Wilson tells a different story than the above-mentioned account.
14
Officer Wilson encountered Brown and Johnson walking in the middle of
Canfield Drive and when Officer Wilson asked the boys to move out of the street,
they became aggressive. Officer Wilson attempted to get out of his car and
15
Brown slammed the door into Officer Wilson to prevent him from exiting the
car. Brown rushed Officer Wilson, punched him in the face, and began to fight
16
over Officer Wilson’s gun. Two shots went off, which caused Brown to begin
17
to run from Officer Wilson. Officer Wilson exited his vehicle and pursued
18
Brown until Brown turned around with one fist raised and his other hand in his
waistband. Brown suddenly charged at Officer Wilson, which caused Officer
19
Wilson to fire his gun until Brown dropped dead in front of him.
20
In the end, Officer Wilson shot and killed Michael Brown. At least six shots
21
entered Brown’s body, with the fatal shot entering through the top of Brown’s
head. Citing safety concerns for Officer Wilson and other officers, Officer
22
Wilson subsequently resigned from the Ferguson Police Department. In the
23
months since Brown’s death, Ferguson and other major cities have become an
area of unrest and protest. Police have arrested a number of individuals for
24
protesting and continue to arrest more when the protests get out of control. The
25
grand jury’s decision not to indict Officer Wilson has caused an uproar all across
11. Id.
12. Id.
13. Id.
14. Ray Sanchez, Darren Wilson Says He’s Sorry but His Conscience Is Clear, CNN (Nov.
26, 2014, 7:59 PM), http://www.cnn.com/2014/11/25/us/darren-wilson-interview/ [http://perma.
cc/Z6FD-ZXZF].
15. Id.
16. Id.
17. Id.
18. Id.
19. Id.
20. Id.
21. Clarke & Lett, supra note 2.
22. Id.
23. Jack Healy & Monica Davey, Darren Wilson, Officer in Ferguson Shooting, Resigns from
Police Dept., N.Y. TIMES (Nov. 29, 2014), http://www.nytimes.com/2014/11/30/us/ferguson.
html?_r=0 [http://perma.cc/9TDL-L7B9].
24. Ferguson, Mo., Police Shooting, CBS NEWS, http://www.cbsnews.com/ferguson-
missouri-police-shooting-protests/ [http://perma.cc/B3NA-Y7X8] (last visited Dec. 22, 2015).
25. Id.
2016] YOU’RE ON CANDID CAMERA 771
the United States. Citizens all across the nation are calling for justice and more
26
evidence that Officer Wilson is indeed an innocent man. One photograph taken
27
during a protest shows protestors holding signs that call for video evidence of the
encounter to be produced.
28
The major issue with the Michael Brown case is the uncertainty of what
actually transpired the day Officer Wilson encountered Brown walking on
Canfield Drive. The people of Ferguson and others across the nation are forced
to believe either the story favoring Brown or Officer Wilson. Video evidence of
what actually happened on that day would put to rest any questions or concerns
about police brutality or racially driven motives. Take, for example, the shooting
of a twenty-five-year-old black man named Kajieme Powell videotaped on a
person’s cell phone two weeks after Brown's death. St. Louis police officers
29
approached Powell after receiving two 911 phone calls identifying him as
allegedly stealing from a store and carrying a knife. St. Louis Police Chief Sam
30
Dotson released a statement that the officers fired on Powell after Powell held his
knife in an overhead grip and was three or four feet away from the officers.
31
Unfortunately for Chief Dotson, the video that was released showed something
different. Powell did approach the police officers, but he was not as close as
32
Chief Dotson stated and his hands were at his side. Although there was a
33
discrepancy in what Chief Dotson said and what the video showed, the fact that
video evidence was released for transparency reasons allowed the citizens to rely
on what they could see in the video rather than have to make judgments based off
of differing stories. No disciplinary measures were taken against the officers
34
involved because it was labeled a “lethal situation.”
35
This Note advocates for a statute directly allowing citizens to record police
officers in the line of duty, which will help safeguard a constitutionally-protected
right of citizens, shield cities and police officers from unnecessary lawsuits, and
help repair police-citizen relationships. Part I of this Note analyzes the circuit
split among federal appellate courts that exists regarding the right to record and
how states within the circuits have responded to the court decisions. Part II
26. Andrew Hart, Powerful Photos Show the Nationwide Response to Michael Brown Won’t
End Any Time Soon, HUFFINGTON POST (Nov. 25, 2014, 11:52 PM), http://www.huffingtonpost.
com/2014/11/25/ferguson-protests-us_n_6222810.html [http://perma.cc/N6BM-W3HT].
27. Id.
28. Id.
29. Ryan Grim & Ashley Alman, St. Louis Police Release Video of Kajieme Powell Killing
that Appears at Odds with Their Story, HUFFINGTON POST (Aug. 22, 2014, 5:59 PM),
http://www.huffingtonpost.com/2014/08/20/kajieme-powell-shooting_n_5696546.html
[http://perma.cc/CT6P-RLCG].
30. Id.
31. Id.
32. Id.
33. Id.
34. Id.
35. Id.
772 INDIANA LAW REVIEW [Vol. 49:769
analyzes how the current laws and the lone case in Indiana do not provide
adequate protection or guidance on the right to record police-citizen interactions.
Part III proposes a new statute for Indiana that will allow citizens to record police
activity. The proposed statute sets forth necessary language giving a clear
indication that Indiana residents have a right to record. In addition, Part III
analyzes consequences and implications of enacting such a statute.
I. ANALYZING THE CIRCUIT SPLIT
The right to record police activity has been an ongoing issue since average
citizens have had the technology to video record from their cell phones. With
36
so many citizens having the ability to video record police officers in the line of
duty, courts have been forced to deal with the legal issues that accompany the
ability to record. Unfortunately, the federal circuits that have dealt with the issue
37
of the right to record have not reached a uniform decision on the extent of that
right. The First, Seventh, and Eleventh Circuits have found that the right to
38
record exists as a right protected by the First Amendment of the U.S.
Constitution. The Third Circuit has not found that the right to record is a clearly
39
established right under the First Amendment. Circuits have approached the right
40
to record in different ways, which has caused a similarly fragmented application
at the state level.
41
A. Eleventh Circuit
Jason and Barbara Smith owned and operated a small electronics repair shop
in Cumming, Georgia in 1995. One of the Smiths’ employees donated sperm to
42
help with the Smiths’ attempt to have a child, which angered the employee’s
girlfriend, Sarah Miles. Miles proposed a plan to Jason Lingerfelt, a friend, to
43
shoot the Smiths’ house while the Smiths were home. Lingerfelt contacted the
44
Smiths and told them about the plot. After the Smiths and Lingerfelt filed a
45
36. Steve Silverman, 7 Rules for Recording Police, GIZMODO (Apr. 10, 2012, 1:00 PM),
http://gizmodo.com/5900680/7-rules-for-recording-police [http://perma.cc/P6EE-JARP].
37. Id.
38. Id.
39. See Am. Civil Liberties Union v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe,
655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
40. See Kelly v. Borough of Carlisle, Nos. 12-4020, 12-4021, 2013 WL 6069275 (3d Cir.
Dec. 20, 2013).
41. See e.g., Ken Wallentine, Courts Side with ACLU on Videotaping Police, POLICEONE.
COM (June 11, 2012), https://www.policeone.com/legal/articles/5686435-Courts-side-with-ACLU-
on-videotaping-police/ [http://perma.cc/35R9-L2YG].
42. Brief for Appellant at 3, Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) (No.
99-8199).
43. Id.
44. Id.
45. Id. at 4.
2016] YOU’RE ON CANDID CAMERA 773
police report, relations between the Smiths and the Cumming Police Department
began to deteriorate. Evidencing the deteriorating relationship between the two,
46
Officer Vince Elsey pulled Barbara Smith over for allegedly “weaving” while
driving her car. Convinced that the police were writing bogus tickets to increase
47
revenue and harass them, Jason Smith began to follow the police, using his police
scanner and videotaping their traffic stops. During the tapings, Jason Smith
48
never interfered with the traffic stops, trespassed on private property, or
approached the stop close enough to cause any fear or interference with police
officers. Chief of Police Earl Singletary issued an arrest warrant for Jason Smith
49
and the police officers promptly made an appearance at his business to serve the
warrant. The magistrate judge threatened to have Jason Smith thrown in jail
50
without bond if Smith was caught videotaping police activity again.
51
The Smiths filed suit against the City of Cumming and Chief Singletary,
52
pursuant to 42 U.S.C. § 1983, which allows citizens of the United States to bring
suit against any person that deprives them of any rights, privileges, or immunities
that are secured by the U.S. Constitution and laws. The Smiths alleged that the
53
Cumming Police Department deprived Jason Smith of his First Amendment rights
by preventing him from videotaping police actions. The court granted summary
54
judgment to the City of Cumming and Chief Singletary. The Smiths appealed
55
to the Eleventh Circuit. Although the court affirmed the ruling of summary
56
judgment, the Eleventh Circuit discussed the First Amendment right to record
police activity.
57
The court found that the Smiths had a First Amendment right to record the
police activity, citing to several other cases where courts allowed public officials
to be recorded while carrying out their duties on public property. Specifically,
58
the court held the First Amendment right applies to gathering information about
what public officials do on public property and matters of public interest. The
59
46. Id. at 7.
47. Id. at 10.
48. Id. at 11.
49. Id.
50. Id.
51. Id. at 12.
52. Smith, 212 F.3d 1332.
53. 42 U.S.C. § 1983 (2012).
54. Smith, 212 F.3d 1332.
55. Id.
56. Id.
57. Id. at 1333.
58. Id. (citing Iacobucci v. Boulter, No. Civ. A. 94-10531-PBS, 1997 WL 258494 (D. Mass.
Mar. 26, 1997); Williamson v. Mills, 65 F.3d 155 (11th Cir. 1995); Fordyce v. City of Seattle, 55
F.3d 436, 439 (9th Cir. 1995); Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994); United
States v. Hastings, 695 F.2d 1278, 1281 (11th Cir. 1983); Thompson v. City of Clio, 765 F. Supp.
1066, 1070-71 (M.D. Ala. 1991)).
59. Id.
774 INDIANA LAW REVIEW [Vol. 49:769
court added this First Amendment right is not absolute, but is subject to
reasonable time, manner, and place restrictions. Even though the Smiths had this
60
constitutional right to record police activity, they failed to carry their burden
under section 1983 of proving “that the conduct complained of deprived them of
‘a right, privilege or immunity secured by the constitution or laws of the United
States.’” As such, it appears that in Eleventh Circuit so long as a person is
61
recording police activity without violating the reasonable time, manner, and place
restrictions standard, he or she is protected from arrest.
The Smith decision did not have the effect that those advocating for the right
to record had hoped. In fact, there are still citizens arrested for recording police
activity in Florida, a state within the Eleventh Circuit. Those unlawful arrests
62
have been met with penalties for the cities and police officers. At the end of
63
2014, an Orlando man was awarded $15,000 in a settlement with the city for
being arrested while videotaping a police encounter with another citizen. In
64
addition, the Orlando Police Department has adopted new policies to deal with
the issue of police officers being recorded by citizens while carrying out their
duties. Officers are now directly on notice that they may not order a citizen to
65
stop, or prevent a citizen from, recording them in a public place so long as the
citizen is not interfering with officers' duties. Even though it is an improvement
66
for Orlando to implement policies to protect citizens’ right to record, this still
does not have the needed power to protect citizens across Florida. Citizens will
continue to get arrested in other cities until the Florida Legislature enacts a statute
that allows citizens the right to record. Also, those cities where police officers
continue to arrest people for exercising their right to record will be subject to
substantial settlements that involve thousands of dollars.
67
B. First Circuit
On October 1, 2007, Simon Glik, while walking past the Boston Common,
observed three police officers arresting a man. When he overheard another
68
bystander telling the police officers they were hurting the man, he became
60. Id.
61. Id. (quoting Nail v. Cmty. Action Agency of Calhoun Cty., 805 F.2d 1500, 1501 (11th
Cir. 1986)).
62. Rene Stutzman, Orlando Pays $15,000 to Man Who Was Jailed for Video-recording
Cops, ORLANDO SENTINEL (Dec. 24, 2014, 12:37 PM), http://www.orlandosentinel.com/news/
breaking-news/os-orlando-pays-man-for-video-recording-arrest-20141224-story.html
[http://perma.cc/2S6R-YFNT].
63. Id.
64. Id.
65. Id.
66. Id.
67. See id.
68. Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir. 2011).
2016] YOU’RE ON CANDID CAMERA 775
concerned the police were using excessive force. Glik stood around ten feet
69
away from the encounter and began to record with his cell phone. One of the
70
officers noticed that Glik was filming and told Glik that Glik had taken enough
pictures. Glik told the officer he was recording them, which prompted another
71
officer to ask him whether his cell phone recorded audio. When Glik confirmed
72
that it did, the officer arrested Glik for unlawful audio recording in violation of
the Massachusetts’s wiretap statute. The officers then took Glik to the police
73
station, where they confiscated Glik’s cell phone and computer flash drive and
held them as evidence.
74
Glik was charged with violation of the wiretap statute, disturbing the peace,
and aiding in the escape of a prisoner. After finding no probable cause to
75
continue the charges against Glik, the City of Boston subsequently dropped all
of the charges. Glik brought a section 1983 claim against the City of Boston and
76
the officers who arrested him, alleging violations of his First and Fourth
Amendment rights. The district court denied the defendants’ motion to dismiss,
77
concluding, “in the First Circuit . . . this First Amendment right publicly to record
the activities of police officers on public business is established.” On appeal, the
78
First Circuit concluded, “Glik was exercising clearly-established First
Amendment rights in filming the officers in a public space, and that his clearly-
established Fourth Amendment rights were violated by his arrest without
probable cause.” The court cited the Eleventh Circuit in Smith to show that its
79
conclusion on the First Amendment right to record officers in a public space was
in accordance with decisions from other circuits.
80
Here, the First Circuit was in agreement with the Eleventh Circuit that
recording government officials, which includes police officers, carrying out their
duties in public space fits within the principles of the First Amendment. The
81
court reiterated the limitations that were stated in Smith v. City of Cumming to
82
make clear that the right to record is not absolute. The First Circuit had to
83
consider an additional claim that was not considered in Smith— the Fourth
69. Id. at 79-80.
70. Id. at 80.
71. Id.
72. Id.
73. Id.
74. Id.
75. Id.
76. Id.
77. Id.
78. Id.
79. Id. at 79.
80. Id. at 83.
81. Id. at 82.
82. 212 F.3d 1332 (11th Cir. 2000).
83. Glik, 655 F.3d at 84.
776 INDIANA LAW REVIEW [Vol. 49:769
Amendment claim of arrest without probable cause. With regard to the Fourth
84
Amendment determination, the court reasoned that Glik’s recording of the
officers was not “secret” within the meaning of the wiretap statute, which meant
the officers lacked probable cause to arrest him. This is because Glik was openly
85
filming the officers and the officers were well aware of this open filming. States
86
within the First Circuit should now recognize the right to record police activity
and these states should go one step further in recognizing the violation of Fourth
Amendment rights when a person is arrested for lawfully recording police
activity.
The Massachusetts Wiretapping Law makes it a crime to record secretly a
conversation. Obtaining consent from one or both of the parties to the
87
conversation eliminates the issue of the recording being in secret. The First
88
Circuit’s decision in Glik makes it clear that if a third-party to the police
encounter is recording openly, it is not considered a secret recording. The issue
89
is that since the case did not directly decide the issue of secretly recording police
activity, police officers could still arrest a person for doing so if the officers
believe the person is trying to conceal his or her recording device.
90
In addition to paying Glik $170,000 in a settlement for his unlawful arrest,
the Boston Police Department issued a training bulletin to its officers about the
Massachusetts Wiretapping Law. The bulletin contains some of the relevant
91
language from the wiretapping law, as well as two cases decided in Massachusetts
where the defendant secretly recorded the public officials. In both of those
92
cases, the citizen recording the encounters purposely recorded the public officials
in secret and made no effort to notify the officials that they were being recorded.
93
The bulletin contained the same clause at the bottom of both pages outlined in
bold, “Public and open recordings are allowed under the Wiretap statute. There
is no right of arrest for public and open recordings under this statute.” In
94
addition to the bulletin, the Boston Police Department also released a training
84. Id. at 85.
85. Id. at 88.
86. Id. at 87.
87. “The general court further finds that the uncontrolled development and unrestricted use
of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the
commonwealth. Therefore, the secret use of such devices by private individuals must be
prohibited.” MASS. GEN. LAWS ch. 272, § 99 (2014).
88. Massachusetts Recording Law, DIGITAL MEDIA L. PROJECT (May 8, 2013), http://www.
dmlp.org/legal-guide/massachusetts-recording-law [http://perma.cc/F63G-F759].
89. Id.
90. Andrew, Boston Police Release Training Video on Wiretapping Law, BAY ST. EXAMINER
(Apr. 4, 2014), http://baystateexaminer.com/boston-police-release-training-video-wiretapping-law/
[http://perma.cc/7K96-MLST].
91. Id.
92. Id.
93. Id.
94. Id.
2016] YOU’RE ON CANDID CAMERA 777
video to its officers that displays two different scenarios of recording to help
teach the officers when it is unlawful to record. The main point to the video is
95
that the recording of the police has to be done secretly for it to be a violation of
the wiretapping law. In a scenario where a person is openly recording the police
96
and not attempting to hide it, this is a lawful recording even if the person does not
have the consent of the police to do so. Although the police in Massachusetts
97
are taking the matters into their own hands with training their officers, there are
still numerous reports of people arrested for recording police activity. Without
98
a law that expressly allows for citizens to record police activity subject to certain
restrictions, the police are forced to determine when a recording is done secretly,
resulting in a lack of uniformity within the criminal justice system. Additionally,
99
those unlawful arrests of citizens exercising their right to record will continue to
subject cities in the First Circuit to large settlement amounts like the one Glik
received.
100
C. Seventh Circuit
The American Civil Liberties Union (“ACLU”) was planning to implement
a “police accountability program” in the area around Chicago, Illinois.
101
Specifically, the ACLU wanted to promote police accountability by openly
recording police officers without the officers' consent when: (1) the officers were
performing their public duties; (2) the officers were in public places; (3) the
officers were speaking at a volume audible to the unassisted human ear; and (4)
the manner of recording was otherwise lawful. The ACLU brought suit seeking
102
a declaratory judgment and injunctive relief against the Illinois’s State Attorney
under section 1983, barring her from enforcing the Illinois eavesdropping statute
against them.
103
The ACLU contended the First Amendment protected its recordings, but was
fearful of prosecution. Accordingly, it sought a declaratory judgment providing
104
that the eavesdropping statute was unconstitutional as applied to its program.
105
The district court judge held that the ACLU had not alleged a cognizable First
Amendment injury because the First Amendment did not recognize the right to
record. On appeal, the Seventh Circuit found there was a First Amendment
106
95. Id.
96. Id.
97. Id.
98. Id.
99. Id.
100. See id.
101. Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 588 (7th Cir. 2011).
102. Id.
103. Id.
104. Id.
105. Id.
106. Id. at 589.
778 INDIANA LAW REVIEW [Vol. 49:769
right to gather and disseminate information about government officials
performing their duties in public. Specifically, the Seventh Circuit cited the
107
First Circuit in Glik to show it was in agreement on this First Amendment right
to record. The court also cited the Eleventh Circuit to show that the First
108
Circuit in Glik was aligned with authority from another federal circuit. Satisfied
109
that the right existed and was in line with other circuits, the court analyzed the
eavesdropping statute under heightened First Amendment scrutiny. The court
110
found that the eavesdropping statute restricted far more modes of communication
than were necessary to serve an important government interest. The court
111
stated, “The Illinois eavesdropping statute restricts an expressive medium used
for the preservation and dissemination of information and ideas.” The court
112
concluded the ACLU had a strong likelihood of success on the merits for its First
Amendment claim and remanded the case back to the district court for further
proceedings. After this decision, it would appear states within the Seventh
113
Circuit would recognize the right to record police activity as a constitutionally-
protected right.
In his lengthy dissent, Judge Posner expressed concerns about conversations
that take place in public but are intended to be private. Judge Posner felt the
114
breadth of the right to record could reach certain interactions with police that
people would not want broadcasted on the evening news or blogged about on the
Internet. He specifically mentioned suspects being questioned in an
115
investigation, crime victims seeking police intervention, a person asking for
directions, and an injured person seeking help. Judge Posner stated the right to
116
record would likely impair the police officers' ability to perform their duties and
to communicate effectively with citizens. In his closing thoughts, Judge Posner
117
expressed his concern that although police officers may not have a right to
privacy when they are in public performing their duties, citizens do have this right
of privacy. It is true that by allowing citizens to record police activity, they are
118
also recording the citizens that may be involved in the situation. Inevitably, if
Indiana passes a statute to allow citizens to record police activity, this issue will
need to be discussed and addressed.
119
Illinois, the Seventh Circuit state involved in American Civil Liberties Union,
107. Id. at 600.
108. Id.
109. Id. at 614 n.10.
110. Id. at 600.
111. Id. at 606.
112. Id. at 608.
113. Id.
114. Id. at 608 (Posner, J., dissenting).
115. Id. at 611.
116. Id.
117. Id.
118. Id. at 613.
119. See infra Part III.C.
2016] YOU’RE ON CANDID CAMERA 779
boasted what was one of the nation’s toughest and most restrictive eavesdropping
laws. The Illinois Eavesdropping Statute made it a crime to use an
120 121
eavesdropping device to record phone calls or conversations unless all parties to
the conversation gave consent, regardless of whether there was an expectation of
privacy. The majority in American Civil Liberties Union found that the statute
122
infringed on many constitutionally-protected modes of communication. The
123
overbreadth of the statute automatically called into question whether it was
tailored to an important government interest to withstand scrutiny.
124
The Illinois Supreme Court sounded the death knell for the overbroad statute
with its decision in People v. Melongo. Annabel Melongo was charged with
125
violating the eavesdropping statute after secretly recording telephone
conversations with Cook County court staff. Melongo challenged the law as
126
unconstitutional under the due process clauses of both the Illinois and U.S.
Constitutions. The Illinois Supreme Court found that the eavesdropping statute
127
deemed all conversations to be private, even when there was no expectation that
they would remain private or common sense would signal that they are not
private. The court reasoned the statute criminalized a wide range of innocent
128
conduct and that the statute burdened substantially more speech than was
necessary to serve the legitimate government interest necessary for intermediate
scrutiny. The court held, “the recording provision is unconstitutional on its face
129
because a substantial number of its applications violate the first amendment.”
130
What can be gleaned from this decision is that courts are now more aware that the
right to record government activity, including police officers, is a right protected
by the First Amendment. Illinois is a great example of how First Amendment
rights are being recognized and protected. Illinois went from one of the strictest
eavesdropping statutes to recognizing that it negatively impacted a core First
Amendment right.
D. Third Circuit
Officer David Rogers pulled over a vehicle for speeding in which Brian Kelly
120. Michael Tarm, Illinois Supreme Court Deals Final Blow to State’s Harsh Eavesdropping
Law, HUFFINGTON POST (Mar. 20, 2014, 6:59 PM), http://www.huffingtonpost.com/2014/
03/20/illinois-eavesdropping-law_n_5003308.html [http://perma.cc/UML3-VLFA].
121. 720 ILL. COMP. STAT. 5/14-1, 2 (2014).
122. Illinois Recording Law, DIGITAL MEDIA L. PROJECT (Apr. 28, 2014), http://www.
dmlp.org/legal-guide/illinois-recording-law [http://perma.cc/X684-4F3F].
123. Am. Civil Liberties Union, 679 F.3d 583 (majority opinion).
124. Id.
125. 6 N.E.3d 120 (Ill. 2014).
126. Id. at 122-23.
127. Id. at 123.
128. Id. at 126.
129. Id.
130. Id.
780 INDIANA LAW REVIEW [Vol. 49:769
was a passenger. Kelly began to record the traffic stop and when Officer
131
Rogers realized Kelly was recording, Officer Rogers seized the camera. Officer
132
Rogers went back to his patrol car and called the district attorney’s office to see
if he could arrest Kelly for violating Pennsylvania’s wiretapping act. Based on
133
the advice he received, Officer Rogers arrested Kelly. The Borough of Carlisle
134
subsequently dropped the charges against Kelly and Kelly filed a section 1983
claim against Officer Rogers and the Borough of Carlisle, alleging violations of
his First and Fourth Amendment rights.
135
The district court granted summary judgment to Officer Rogers and the
Borough of Carlisle on both the First and Fourth Amendment claims. On
136
appeal, the Third Circuit affirmed the summary judgment on the First
Amendment claims, but vacated the grant of summary judgment in favor of
Officer Rogers on the Fourth Amendment claim. In analyzing the First
137
Amendment claim, the Third Circuit discussed the Eleventh Circuit’s decision in
Smith, as well as several other cases that discussed the right to record police
activity. The Third Circuit was unconvinced that these cases clearly established
138
the right to record police activity sufficiently enough to put Officer Rogers on
notice that his arrest of Kelly was unlawful. In particular, two prior decisions
139
within the Third Circuit seemed to imply the U.S. Constitution might not protect
videotaping that is done without an expressive purpose. The Third Circuit was
140
even more unconvinced about the right to record in this situation because none
of the prior cases had addressed recording a police officer during a traffic stop,
even though there were prior cases that broadly addressed the right to record.
141
Here, the Third Circuit was left without a clear indication of how to decide this
case because no statute existed that allowed Kelly to lawfully record the traffic
stop. The Third Circuit was left to sift through the various cases discussing the
142
right to record police officers and decide if the cases clearly established the right.
This is an example of where a statute on the books clearly establishing the right
to record would prevent the courts from setting forth limitations on and
interpretations of a citizen's constitutionally-protected right to record police
activity.
At the same time, it is interesting and unfortunate for states within the Third
Circuit that even though the right to record is not “clearly established,” cities may
131. Kelly v. Borough of Carlisle, 622 F.3d 248, 251 (3d Cir. 2010).
132. Id.
133. Id.
134. Id. at 252.
135. Id.
136. Id.
137. Id. at 266.
138. Id. at 261-62.
139. Id.
140. Id. at 262.
141. Id.
142. Id. at 260.
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still be subject to paying large settlements for depriving a citizen of this right.
143
Allen Robinson had a couple of run-ins with the Pennsylvania state troopers when
he believed they were conducting truck inspections in an unsafe manner on Route
41. Robinson began filming the officers conducting their truck inspections
144
while parked on private property on which Robinson obtained permission to be.
145
After being arrested and charged with harassment when he refused to stop
videotaping the police officers, Robinson filed suit under section 1983 for
violations of his First Amendment right to free speech and his Fourth Amendment
right to be secure against an unreasonable seizure.
146
The Eastern District of Pennsylvania found that Robinson had a First
Amendment right to record the police officers because “[t]he activities of the
police, like those of other public officials, are subject to public scrutiny.” The
147
court found Robinson was conducting his filming from a safe distance and was
not in any way disturbing or interfering with the officers’ duties. The court
148
stated, “Videotaping is a legitimate means of gathering information for public
dissemination and can often provide cogent evidence, as it did in this case.”
149
Having found that Robinson’s filming was constitutionally-protected speech, the
Eastern District of Pennsylvania found that Robinson’s Fourth Amendment rights
were also violated when he was arrested for his lawful filming. The court
150
concluded, “Based upon these facts, no objectively reasonable police officer
could have believed that Robinson was committing the offense of harassment
under Pennsylvania law.”
151
Having sided with Robinson on his section 1983 claims, the Eastern District
of Pennsylvania moved to the amount of damages Robinson should receive.
152
The court found, “Robinson is entitled to compensatory damages for any
monetary loss, humiliation, and mental anguish caused by the defendants’
deprivation of his constitutional rights.” Robinson was required to, and did,
153
prove he suffered damages “as a result of the defendants’ violation[] of his
rights.” In addition, the court found Robinson was entitled to receive punitive
154
damages for the deprivation of his rights. The court stated, “Such damages may
155
be awarded in a § 1983 action ‘when the defendant’s conduct is shown to be
motivated by evil motive or intent, or when it involves reckless or callous
143. See Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Penn. 2005).
144. Id. at 538-39.
145. Id. at 539.
146. Id. at 538.
147. Id. at 541.
148. Id.
149. Id.
150. Id. at 543.
151. Id.
152. Id. at 545.
153. Id.
154. Id.
155. Id. at 546.
782 INDIANA LAW REVIEW [Vol. 49:769
indifference to the federally protected rights of others.’” In the end, the court
156
awarded Robinson $35,000 in compensatory damages and $6000 in punitive
damages for a total of $41,000. Therefore, even though this right to record may
157
not be sufficiently established to put an officer on notice, if a district court
believes a person’s right to record was violated, monetary damages may be
assessed against those who prevent the exercise of that right. Those monetary
158
damages may be compensatory for the deprivation of rights or punitive to punish
those who deprived the citizen of his or her rights.
159
E. Summary
Citizens’ right to record police officers is not adequately recognized or
protected, which is evidenced by the existing circuit split in the federal appellate
courts. As a result, citizens from different states will receive different results if
they have to take their right to record to the courts for a determination. The First,
Seventh, and Eleventh Circuits are in agreement that the right to record is
protected by the First Amendment of the U.S. Constitution. Even though the
160
right to record is established in those circuits, there are still barriers created at the
state level preventing the right to record from being fully exercised. Something
161
more needs to be done at the state level to provide citizens with the needed
guidance and protection on the right to record police activity. Otherwise, officers
will continue to arrest citizens because they misunderstand the right to record,
subjecting citizens to a deprivation of their constitutionally-protected right and
allowing them to sue cities for large amounts. Similar to other states, the laws and
relevant cases in Indiana do not provide enough protection of the right to record.
II. LACK OF PROTECTION PROVIDED BY INDIANA LAW S
In Indiana, there are two laws important to the right to record. First, the
obstruction of justice statute will likely be a charge brought against a person
162
who is recording police activity. This was one of the charges brought against
Willie King in the lone case from Indiana dealing with the right to record.
163
Second, the wiretapping statute does not provide any guidance for the right to
164
record because it only prohibits the interception of electronic communications.
165
156. Id. at 545 (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).
157. Id. at 546.
158. See id.
159. See id. at 545.
160. See Am. Civil Liberties Union v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe,
655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
161. See Stutzman, supra note 62.
162. IND. CODE § 35-44.1-2-2 (2014).
163. King v. City of Indianapolis, 969 F. Supp. 2d 1085, 1089 (S.D. Ind. 2013).
164. “A person who knowingly or intentionally intercepts a communication in violation of this
article commits unlawful interception, a Level 5 felony.” IND. CODE § 35-33.5-5-5.
165. “‘Interception’, for purposes of IC 35-33.5, means the intentional recording or acquisition
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The Indiana obstruction of justice statute, wiretapping statute, and the lone
Indiana case do not provide citizens with protection from prosecution while they
exercise their constitutional right to record police activity.
A. King v. City of Indianapolis
166
On February 18, 2011, Officer Robert McCauley of the Indianapolis
Metropolitan Police Department was involved in a traffic stop with William
Gilmore. Gilmore was intoxicated and began to resist Officer McCauley’s
167
attempts to arrest him. Officer McCauley called for assistance and several other
168
police officers responded to his call for aid. Willie King lived right across the
169
street from where the traffic stop was taking place and stepped out of his home
when he heard all of the commotion. King grabbed his iPhone and began to
170
record the stop as he walked across the street closer to the action. On King’s
171
way, another officer asked King to leave the area, but King responded that he was
going to a friend’s house as he kept walking toward the police officers. Once
172
the officers who were engaged in the arrest of Gilmore realized King was
recording them, they warned King that if the video showed Gilmore resisting
arrest, they could confiscate King’s phone. King continued to record and the
173
police officers demanded King turn his phone over to them. After refusing to
174
do so, the officers threw King to the ground and arrested him. The officers also
175
confiscated King's phone, turning it off at the scene.
176
Officers arrested King for residential entry, obstruction of justice, resisting
law enforcement, refusal to leave an emergency incident area, and public
intoxication. Only the charges of resisting law enforcement, disorderly conduct,
177
and public intoxication were actually filed against him, and he was found not
guilty of all three at a bench trial. King brought a section 1983 claim against
178
the City of Indianapolis and his arresting officers, alleging violations of his First
and Fourth Amendment rights. The defendants moved for summary judgment
179
of the contents of an electronic communication by a person other than a sender or receiver of that
communication . . . .” Id. § 35-31.5-2-176.
166. 969 F. Supp. 2d 1085 (S.D. Ind. 2013).
167. Id. at 1088.
168. Id.
169. Id.
170. Id.
171. Id.
172. Id.
173. Id.
174. Id.
175. Id. at 1089.
176. Id.
177. Id.
178. Id.
179. Id. at 1088.
784 INDIANA LAW REVIEW [Vol. 49:769
on both the First and Fourth Amendment claims.
180
The court found King’s First Amendment right to record police was not
clearly established at the time of his arrest. The court did mention ACLU as
181 182
a Seventh Circuit case worthy of discussion, but American Civil Liberties Union
was decided after King had been arrested. King set forth Glik and Smith
183 184 185
as showing the right to record as a First Amendment right was clearly
established. The defendants set forth Kelly and another Fourth Circuit case
186 187
to show the circuit split on the issue. The court not only agreed the circuit split
188
called into question whether the right to record was clearly established, but was
also concerned King’s recording in a tense situation where a person was resisting
arrest may not satisfy the reasonable time, manner, and place restrictions
standard. The court granted the defendants summary judgment on the First
189
Amendment claim.
190
On the Fourth Amendment claim, King contended the seizure of his phone
was not justified by exigent circumstances that would make it lawful. The court
191
held there was a “clearly established right to be free from the warrantless seizure
of a cell phone.” The court explained the right was especially clear here “where
192
Mr. King was video recording police activity and crime, but was not himself
engaged in unlawful activity at the time the iPhone was seized.” The court next
193
examined whether the exigent circumstances justified police action and the need
to conduct a warrantless search and seizure. Here, the compelling need would
194
have been to prevent the destruction of evidence since King was filming Gilmore
resisting arrest. The court was unconvinced King posed such a risk to the police
195
officers to justify their warrantless search and seizure of King’s cell phone. The
196
court was not convinced an officer would feel the evidence on the phone was
necessary or that he or she could not obtain a warrant to retrieve the video.
197
Therefore, the court denied summary judgment on the Fourth Amendment
180. Id.
181. Id. at 1090.
182. Am. Civil Liberties Union v. Alvarez, 679 F.3d 583 (7th Cir. 2012).
183. King, 969 F. Supp. 2d at 1090.
184. Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).
185. Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
186. King, 969 F. Supp. 2d at 1090-91.
187. Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010).
188. King, 969 F. Supp. 2d at 1091.
189. Id. at 1092.
190. Id.
191. Id.
192. Id.
193. Id. at 1093.
194. Id.
195. Id.
196. Id.
197. Id.
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claim.
198
King illustrates how the inconsistencies surrounding the right to record may
affect a court. Here, the court was unable to utilize American Civil Liberties
Union in the Seventh Circuit because it had not been decided prior to King’s
arrest. The court was forced to weigh the cases from other federal circuits and,
199
due to the circuit split, was unconvinced the right to record was clearly
established. It would be interesting to see if an Indiana court dealing with the
200
right to record now would find the right to be clearly established based on
American Civil Liberties Union. The better approach would be to have the
Indiana General Assembly clarify the right with a statute, taking the issue out of
the courts’ hands. This would provide courts with a clear standard to use in
deciding cases regarding the right to record police activity. The court in King
called into question whether the seizure of a person’s cell phone would be
warranted when a person is recording police activity. This is important because
201
it tends to show the court at least recognized the recording of police activity in
isolation is not criminal enough to reach the level of requiring a warrantless
search and seizure.
202
When the case came to a close, the City of Indianapolis reached deep into its
pockets to compensate King for being unlawfully arrested. The court awarded
203
King $200,000 in a settlement and instructed Indianapolis to remind its officers
that citizens are legally entitled to videotape officers while officers are on-duty.
204
The relatively large sum of money the court required Indianapolis to pay King
would appear to be a good indication that constitutionally-protected rights are
taken very seriously by courts. Other cities should look at this large settlement as
an incentive to ensure they are not depriving citizens of their protected rights.
The policy Indianapolis adopted for the police officers states officers should
not interfere with citizens recording officers’ actions in public so long as the
recording does not pose any significant risk to the officer or individuals involved
in the encounter. Although this policy is an improvement in the way of the right
205
to record police activity, it still only helps citizens that film officers in
Indianapolis. Citizens in other cities across the state will still be subject to a
deprivation of their right to record if the police officers in that city are not put on
notice of this right. This is where the Indiana General Assembly can step in and
limit any further litigation on the right to record police activity. Currently, the two
relevant statutes provide a complete lack of guidance on dealing with the right to
198. Id.
199. Id. at 1090.
200. Id. at 1092.
201. Id. at 1093.
202. Id.
203. Indianapolis Cops Must Allow Citizens to Film Police Activity After $200k Settlement,
RT (Feb. 24, 2014, 7:18 PM), http://rt.com/usa/indianapolis-settlement-record-police-254/ [http://
perma.cc/95AC-RL85] [hereinafter Indianapolis Cops].
204. Id.
205. Id.
786 INDIANA LAW REVIEW [Vol. 49:769
record.
B. Indiana’s Obstruction of Justice Statute
206
Obstruction of justice was one of the crimes for which King was arrested but
not formally charged. The charge was likely brought against King under
207
Indiana Code section 35-44.1-2-2(a)(3) as a “person who alters, damages, or
removes any record, document, or thing, with intent to prevent it from being
produced or used as evidence in any official proceeding or investigation.” It is
208
not surprising prosecutors did not formally charge this crime against King. The
problem with applying this statute to recording police activity deals with the issue
of intent. The person recording police activity is not intending to withhold the
209
video as evidence. The person's intent is to exercise his or her First Amendment
210
right to record government activity and to disseminate that information to the
public. The issue is that police officers, at the time of being recorded, need to be
aware of this right to record or people will continue to get arrested and charged
with obstruction of justice when they record and refuse to turn over the phone.
211
A statute allowing for the recording of police activity would provide sufficient
notice to the police officers that a citizen recording officers’ activity in a public
place is lawful.
C. Indiana Wiretapping Statute
212
Indiana only prohibits the interception of an electronic communication.
213
Cases that have been brought pursuant to the wiretapping statute deal with the
taping of telephone conversations, not in-person conversations. This will not
214
pose a problem for citizens who are recording their own or others’ interactions
with police in-person. King was not charged with violating the wiretapping
206. IND. CODE § 35-44.1-2-2 (2014).
207. King, 969 F. Supp. 2d at 1089.
208. IND. CODE § 35-44.1-2-2(a)(3).
209. Id. § 35-44.1-2-2.
210. Id.
211. King, 969 F. Supp. 2d at 1089.
212. See generally IND. CODE §§ 35-33.5-2-1 to -5-6.
213. “‘Electronic communication’, for purpose purposes of IC 35-33.5, means any transfer of
signs, signals, writing, images, sounds, data, oral communication, digital information, or
intelligence of any nature transmitted in whole or in part by a wire, a radio, or an electromagnetic,
a photoelectronic, or a photo-optical system.” Id. § 35-31.5-2-110.
214. See Steinberg v. State, 941 N.E.2d 515 (Ind. Ct. App. 2011) (involving tape recordings
of collect phone calls to a defendant’s parents made from jail); Packer v. State, 800 N.E.2d 574
(Ind. Ct. App. 2003) (involving recorded telephone calls from jail between a defendant and his
girlfriend); Apter v. Ross, 781 N.E.2d 744 (Ind. Ct. App. 2003) (involving recorded phone
conversation between a defendant’s ex-wife and child); State v. Lombardo, 738 N.E.2d 653 (Ind.
2000) (involving tape recording of an estranged wife’s telephone conversations).
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statute. This is not surprising because King was recording the events in-person
215
in his neighbor’s yard. In any event, it is highly unlikely that a citizen recording
216
a police encounter in-person will do so in a manner that would violate the
wiretapping statute. Therefore, the Indiana Wiretapping Statute provides
absolutely no guidance or insight into the right to record in-person police
encounters.
Indiana lacks current statutory provisions and case law to protect the right to
record police activity adequately. Indiana needs express statutory language
217
allowing citizens to record police activity and be free from unlawful arrest for
exercising that right.
III. INDIANA’S NEW STATUTE
The Indiana General Assembly has an opportunity to provide the citizens of
the state with a statute that reinforces the right to record police and provides that
right with protection. Utilizing the decisions from the federal circuits, the
legislators have been given an ideal blueprint on how to formulate the statute.
However, like any new legislation, there will be implications that will need to be
addressed and discussed with the passing of this statute.
A. Necessary Language
First, building off of the decisions from the First, Seventh, and Eleventh
Circuits, the new statute needs to state that the right to record public officials is
a right that is protected by the First Amendment of the U.S. Constitution. This
218
will impress upon citizens the importance and superiority of this right. The First
Circuit in Glik quoted language from the U.S. Supreme Court about the right to
gather information regarding government officials: “Gathering information about
government officials in a form that can readily be disseminated to others serves
a cardinal First Amendment interest in protecting and promoting ‘the free
discussion of governmental affairs.’” The statute could lay forth this exact
219
language from the U.S. Supreme Court to provide the foundation and authority
for such a statute.
Next, the statute absolutely must contain language that law enforcement
officials are expected to respect the right to record and provide protection of that
right. This was the major issue that the Third Circuit struggled with in Kelly.
220
The Third Circuit did not believe the cases dealing with the right to record clearly
established the right in a manner that would put Officer Rogers on notice that the
215. King, 969 F. Supp. 2d at 1089.
216. Id. at 1088.
217. See id. at 1085; IND. CODE §§ 35-44.1-2-2, -31.5-2-176.
218. See Am. Civil Liberties Union v. Alvarez, 679 F.3d 583 (7th Cir. 2011); Glik v. Cunniffe,
655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
219. Glik, 655 F.3d at 82 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).
220. Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010).
788 INDIANA LAW REVIEW [Vol. 49:769
right existed. By placing in the statute clear and express language that law
221
enforcement officials are to respect and protect the right to record, Indiana will
alleviate burden courts face in having to determine if the right was clearly
established.
B. Important Limitations on the Right to Record
There are important limitations that must be placed on the right to record
public officials. First, there must be language that the recording must be done
while the government official is carrying out his or her duties in a public space.
All three circuits that have found the right to record have been careful to place in
language that this right to record exists while the government official is carrying
out his or her duties in public. The Seventh Circuit in American Civil Liberties
222
Union quoted language from the U.S. Supreme Court about communications by
government officials in public: “Communications of this sort lack any ‘reasonable
expectation of privacy’ for purposes of the Fourth Amendment.” The court also
223
used this language from the Supreme Court: “[C]onversations in the open would
not be protected against being overheard, for the expectation of privacy under the
circumstances would be unreasonable.” By specifically providing for the right
224
to record government officials in a public space only, Indiana will eliminate
concerns of “secret” or “private” recordings that caused problems in
Massachusetts.
225
Second, the statute must contain the restriction of reasonable time, manner,
and place. The Eleventh Circuit set forth this limitation in Smith. The First and
226
Seventh Circuit also discussed this limitation in regard to the boundaries of the
right to record. The First Circuit was the only one to discuss any further the
227
restriction in its decision by stating, “Such peaceful recording of an arrest in a
public space that does not interfere with the police officers’ performance of their
duties is not reasonably subject to limitation.” Therefore, it appears from the
228
First Circuit’s language that safety, interference with police performance, and
distance would be relevant factors to consider in the limitation. Placing this
limitation on the right to record will leave some discretion to police officers
involved in the recorded encounter, as well as to the courts that may have to
221. Id.
222. See Am. Civil Liberties Union, 679 F.3d 583; Glik, 655 F.3d 78; Smith, 212 F.3d 1332.
223. Am. Civil Liberties Union, 679 F.3d at 606 (citing Katz v. United States, 389 U.S. 347,
351 (1967)).
224. Id. (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)).
225. Andrew, supra note 90.
226. See Smith, 212 F.3d at 1333 (“[T]he Smiths . . . had a First Amendment right, subject to
reasonable time, manner and place restrictions, to photograph or videotape police conduct.”).
227. See Am. Civil Liberties Union, 679 F.3d at 605; Glik, 655 F.3d at 84 (“To be sure, the
right to film is not without limitation. It may be subject to reasonable time, place, and manner
restrictions.”).
228. Glik, 655 F.3d at 84.
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adjudicate claims regarding the right to record. Discretion for the police officers
is important because their lives can be in danger during certain situations. Some
guiding examples of this limitation come from the policy that Indianapolis was
to adopt after the settlement it made with Willie King. There needs to be a safe
229
and reasonable distance between the civilians recording and the police officers
involved in the encounter. Civilians recording the police encounter should not
230
in any way interfere with police officers’ duties or performance. Lastly,
231
civilians recording the encounter should not pose a physical danger to the officers
involved or others at the scene. Therefore, it would appear the polestar of this
232
limitation is safety for the officers and anyone else involved in the encounter.
Because of this concern for safety, there should also be within the statute a
provision that expressly allows police officers to levy punishment against a
citizen recorder who has refused to comply with a reasonable instruction to move
away from an encounter. During the heat of the moment, police officers will be
best able to determine when citizens who are recording an encounter could
possibly be in danger or endanger others. Police officers need the ability to take
control of the situation and restore calm to the area.
C. Implications and Consequences of the Statute
Judge Posner’s dissent in American Civil Liberties Union raised a few
important issues that need to be addressed in regard to the right to record. First,
233
Judge Posner expressed a concern for the safety of police officers. Judge
234
Posner was fearful that citizens recording their conversations will distract police
officers or that police officers will always be on the lookout for any device that
could be recording them. Specifically, Judge Posner stated, “To distract police
235
during tense encounters with citizens endangers public safety and undermines
effective law enforcement.” Although it is true that citizens recording police
236
officers may cause a distraction, the statute proposed contains language that
places limitations on the right to record and gives police discretion on moving
people away from the area, alleviating some of those concerns. Also, to
237
continue to deprive citizens of the right to record because there is a concern for
police being distracted will continue to subject cities to large settlements when
citizens sue. Indiana’s new statute will effectively balance these two concerns
238
229. Indianapolis Cops, supra note 203.
230. Id.
231. Id.
232. Id.
233. Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 608 (7th Cir. 2011) (Posner, J.,
dissenting).
234. Id. at 611-12.
235. Id.
236. Id. at 612.
237. See supra Part II (discussing the limitations on the Indiana statute).
238. See Stutzman, supra note 62; see Indianapolis Cops, supra note 203.
790 INDIANA LAW REVIEW [Vol. 49:769
and still allow police officers the ability to take control of a situation when safety
becomes a legitimate concern.
239
Next, Judge Posner expressed a concern that allowing citizens to record
police will hinder them from effectively doing their job. Judge Posner believed
240
that victims and informants will be reluctant to approach police officers in public
because of the concern of being recorded. Judge Posner did not feel it is
241
feasible to always expect these individuals to take their conversations to a police
station to avoid being overheard and recorded. He stated, “[T]he people who
242
most need police assistance and who most want their conversations kept private
are often the people least able to delay their conversation until they reach a
private place.” Judge Posner pointed out some very personal crimes that would
243
be difficult for a person to wait to tell the details, like rapes and muggings.
244
Although Judge Posner’s concerns are legitimate, society is currently dealing with
a rapidly deteriorating relationship between police and citizens. Indiana has to
245
decide how best to deal with this deteriorating relationship and lack of trust for
police. By allowing people to hold police officers accountable, citizens will likely
feel as though they have more control and satisfaction with police work.
Additionally, Judge Posner assumed citizens will randomly walk up to police
officers and begin filming for seemingly no reason. However, there is enough
246
evidence that people have specific reasons for why they want to film police
officers and do not just do it randomly.
247
Lastly, Judge Posner expressed a concern for the privacy of citizens involved
in the recordings. He stated, “Police may have no right to privacy in carrying
248
out official duties in public. But the civilians they interact with do.” Judge
249
Posner talked about conversations that are had in public, but are intended to be
private and personal. People do not usually bother to eavesdrop on these
250
conversations because they would only hear a piece of the conversation out of
context and it would not make sense. Judge Posner was concerned that by
251
allowing these private conversations of citizens to be recorded and plastered on
239. See supra Part II (discussing the limitations on the Indiana statute).
240. Am. Civil Liberties Union, 679 F.3d at 614 (Posner, J., dissenting).
241. Id.
242. Id.
243. Id.
244. Id.
245. See Ferguson, Mo., Police Shooting, supra note 24; see Hart, supra note 26.
246. Am. Civil Liberties Union, 679 F.3d at 613 (Posner, J., dissenting).
247. See id. at 583 (majority opinion); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Kelly v.
Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010); Smith v. City of Cumming, 212 F.3d 1332 (11th
Cir. 2000); King v. City of Indianapolis, 969 F. Supp. 2d 1085 (S.D. Ind. 2013).
248. Am. Civil Liberties Union, 679 F.3d at 613 (Posner, J., dissenting).
249. Id.
250. Id.
251. Id. at 614.
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the Internet, a citizen’s right to privacy is breached. The counter to Judge
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Posner’s privacy concerns for citizens is something that he references himself in
his dissent—the competing balance of First Amendment rights. Although
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citizens may enjoy a right to privacy, the First Amendment right to gather and
disseminate information about public officials discussed by the First Circuit in
Glik may well trump this right to privacy.
254
Indiana must balance the competing First Amendment rights with the right
to privacy. The statute would expressly allow recording of government officials
carrying out their duty in a public space. A citizen’s right to privacy will still be
respected to the fullest extent without trampling on the competing First
Amendment right of citizens to gather and disseminate information about
government affairs.
Therefore, Judge Posner did set forth important and legitimate concerns that
will accompany the right to record. These concerns are ones that the Indiana
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General Assembly will have to address in passing a statute. Competing interests
will also require analysis and consideration. However, the correct direction for
Indiana will be to pass this statute and provide citizens with the express
constitutional right that they deserve.
CONCLUSION
The right to record government officials carrying out their duties in public is
a right protected by the First Amendment of the U.S. Constitution. Currently in
Indiana, that right is not given the full and deserved protection it needs. The
citizens of Indiana are currently hindered in their ability to gather and disseminate
information about government. The Indiana General Assembly needs to step up
and pass a statute that will alleviate any further concerns regarding the right to
record.
The new statute will help to conserve judicial resources and limit further
litigation on the matter. With more citizens possessing the capability to record
from anywhere, the right to record will be exercised more frequently. As has been
illustrated, cities within Indiana will become subject to large settlements with
citizens who sue because their right to record has been violated by a police
officer. Indiana has the ability to stop this from happening again by passing a new
statute that allows citizens to record and putting police officers on notice.
Without such a statute, Indiana will allow further deterioration in the trust
between citizens and police officers. This is perhaps the most important reason
for the passing of the statute. Police officers are supposed to be individuals that
citizens can trust to protect them and serve the interests of the public. After the
events in Ferguson, Missouri, relations between police and citizens have been
steadily deteriorating. Citizens feel a lack of control and argue that police officers
252. Id. at 613.
253. Id.
254. Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011).
255. Am. Civil Liberties Union, 679 F.3d at 608 (Posner, J., dissenting).
792 INDIANA LAW REVIEW [Vol. 49:769
are not held accountable for their actions. Indiana can put power back into the
hands of the citizens by protecting their right to record police officers in the line
of duty and hold them accountable to the people. With this ability to oversee
police, undoubtedly citizens will feel that they have more control and impact on
how police officers act. There is no better time than the present for Indiana to
make its move to provide its citizens with the right to record.
