When a police officer is sued for violating a person’s civil rights, they will usually invoke the doctrine of qualified immunity, which shields public officials from civil liability as long as they did not violate any “clearly established” statutory or Constitutional rights. In the case of retaliatory arrest for filming the police, this means that whether or not the Plaintiff will prevail on the claim will turn on whether the act of filming is seen as a clearly established right.
If you are in one of the circuits where the right has been explicitly recognized, you’re in luck. If not, take note of some of the legal arguments you can make towards establishing that this activity is protected under the First Amendment, as discussed by NY Civil Rights attorney David Rankin:
Joseph Burstyn v. Wilson: This 1952 case clearly establishes that the film medium is protected under the First Amendment, so logically, the act of making the video must also be a protected right.
City of Houston v. Hill: Since 1987, courts have recognized the right of individuals to verbally oppose or challenge police actions without fear of arrest, as long as they are merely “annoying” or “offensive.” Similarly, the act of filming a police officer’s misconduct which does not interfere with the officer’s actions should be protected.
Public Interest Doctrine: This line of reasoning is twofold - first, there is intrinsic value in recording the details of cases like Oscar Grant or Eric Garner, which may allow officers who commit misconduct to be held accountable. Following from this, when bad actors are held accountable, that lends greater credibility to police departments everywhere, which is clearly a public good.
Media Rights: Rankin warns attorneys to be careful of relying on the body of law which gives media organizations extra protections to act. While it may be tempting to use any legal theory available to the client, the issue of police accountability through filming is more broadly about the democratization of the media - standing for the principle outlined in Houchins v. KQED in 1978 that the Constitution assures the public and the press equal access. If tempted to argue the media line of cases, however, attorneys would be well served to point to independent media to say that if there is an umbrella of protection for the media, it should cover everyone.
Expressive Conduct: Courts have held that the act of holding up a camera is a neutral, not expressive act, which is therefore unprotected by the First Amendment. However, attorneys should argue that the act of monitoring the police can itself be innately critical - as Rankin points out, no one is filming police behavior with the expectation that everything will be fine. Viewed in this light, we return to City of Houston v. Hill for the proposition that criticism of the police is a protected right which should be extended to filming them.
Of course, depending on the outcome of the pending SCOTUS case Lozman v. Riviera Beach, once you have made these arguments and established that filming is a clearly established right for which your client should not have been arrested, you may still need to show that there was no other probable cause to arrest your client, even if none was established at the time of the arrest, so stay tuned!