If you’ve been paying attention to media coverage of the #J20 inauguration protests, you know that a year later, charges against 135 of the 188 defendants charged with felony rioting have been dropped, and a similar outcome is possible in the remaining cases. These arrests occurred as part of a tactic known as “kettling,” in which a group of people are swept into a small area and arrested en masse. Demonstrators, bystanders, journalists, medics, and legal observers were charged, and as a result, had their phones seized as evidence. For the latter group of defendants, legal observers, this meant that a piece of evidence commonly used in defending protesters - actual video footage of the arrests - has not been available to the attorneys working on these cases.
What are legal observers? Often trained by the National Lawyer’s Guild, a progressive bar association, you may have seen them in neon green hats if you’ve been near a protest recently. The critical thing to know is they are there specifically to watch protests, take notes on police conduct, and film any police misconduct or arrests they observe. But what are the legal ramifications of this activity?
As NYC civil rights attorney David Rankin shared with Lawline, we all have a First Amendment right to film the police in public - and sometimes, as in the beating of Rodney King or the shooting of Walter Scott, regular people exercising this right has led to critical evidence in police misconduct cases that otherwise might never have been prosecuted.
Last July in Fields v. City of Philadelphia, a case that was pending when this program was filmed, the Third Circuit became the latest federal appeals court to officially hold that the First Amendment protects the rights of bystanders to record police interactions with third parties. This means that fully half the states have recognized this right.
Although this specific issue has not been considered by the Supreme Court, one pending case, Lozman v. City of Riviera Beach, Florida has the potential to impact the defense of retaliation claims raised by bystanders who film the police. Lozman raises the issue of whether a First Amendment retaliatory arrest claim can be defeated by showing that the police had probable cause to arrest for any reason- even if that reason is unrelated to the original charge - so this is definitely a case to watch for anyone interested in these issues.