U.S. 5th Circuit holds henceforth, a clearly established constitutional right exists to video tape police and their facilities

Turner v. Driver, No. 16-10312 (5th Cir., February 27, 2017)

This is a §1983 case where the U.S. Court of Appeals for the Fifth Circuit affirmed in part and reversed in part an order dismissing three officers from a suit alleging First and Fourth Amendment violations.

Turner was seen videotaping the Fort Worth Police Station from a public sidewalk across the street. He was unarmed and posed no apparent signs of immediate threat. Police Officers Grinalds and Dyess approached him and requested ID. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera.  However, neither officer could respond when ask the crime under investigation. When Turner refused to provide ID, he was handcuffed and the video camera was taken. Lieutenant Driver approached Grinalds and Dyess. Driver requested ID and Turner responded he did not have to provide it since no crime was committed. Driver responded that Turner was correct, ordered his release and return of the camera. Turner sued Driver, Grinalds, and Dyess in their individual capacities. The officers moved to dismissed based on qualified immunity which the trial court granted. Turner appealed.

The 5th Circuit first analyzed qualified immunity under the First Amendment. The U.S. Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality.”  At the time, no case had determined a First Amendment right exists to videotape a police station. The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties. However, no precedent places the constitutional question “beyond debate.”  As a result, there was no clearly established First Amendment right at the time which prevents the granting of the officers’ qualified immunity on that claim. However, the court did hold from henceforth, a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.  News-gathering and other methods of receiving and collecting information and ideas is an undoubted right under the First Amendment. Film creation is also protected. And, when combining the two, filming the police “contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy.”

Under the Fourth Amendment detention claim, because Lt. Driver did not arrive on scene until after the arrest, he was entitled to dismissal. As to Grinalds and Dyess, an initial detention and inquiry is valid if the officers had reasonable suspicion. The initial inquiry with Turner was not objectively unreasonable. The Fourth Amendment is concerned with ensuring that the scope of a given detention is reasonable under the totality of the circumstances.  Nothing in the amended complaint suggests that Turner was videotaping an arrest, a traffic stop, or any other action or activity. On the contrary, Turner’s complaint states that he was filming only “the routine activities at the Fort Worth Police Department building.”  Grinalds and Dyess reference several attacks on police officers and police stations in Dallas and Austin in recent history resulting in an increase of security.  Turner’s filming in front of the police station “potentially threatened security procedures at a location where order was paramount.” An objectively reasonable person in Grinalds’s or Dyess’s position could have suspected  Turner was casing the station for an attack, stalking an officer, or otherwise preparing for criminal activity, and thus was sufficiently suspicious to warrant questioning and a brief detention.  As a result, they were entitled to qualified immunity for the wrongful detention claim. The parties dispute whether Turner’s detention amounted to an arrest. When determining whether an investigative stop amounts to an arrest, “[t]he relevant inquiry is always one of reasonableness under the circumstances,” which must be considered on a case-by-case basis.  After analyzing the facts alleged the court held Grinalds’s and Dyess’s actions—handcuffing Turner and placing him in the patrol car—were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers.  As a result, it was an arrest. Based on the allegations of Turner’s amended complaint, the officers lacked probable cause to arrest him. The police cannot arrest an individual solely for refusing to provide ID. As a result, at this stage of the litigation, Grinald and Dyess are not entitled to qualified immunity. Finally, Lt. Driver is not liable for the actions of Grinald and Dyess. Personal involvement of supervising personnel generally includes giving a “command, signal, or any other form of direction to the officers that prompted” the detention or arrest.  Turner’s complaint alleges Driver investigated the situation and promptly ordered Turner’s release. As a result, Driver was properly dismissed.

If you would like to read this opinion click here. The Panel includes Circuit Judge Wiener, Circuit Judge Clement, and Circuit Judge Higginson. Circuit Judge Wiener delivered the opinion of the court. Attorney for the Appellant: Kervyn Bryce Altaffer, Jr.. Attorneys for the Appellee:  Kenneth E. East and Luis Alfredo Galindo.

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