MAIN POINTS

• Probably everyone has the right to observe the police.

• Probably everyone has the right to express disapproval or approval of the police.

• Observations and communications are most likely not protected by the law when they objectively become an obstruction to police conducting police business.

Who gets to record the police? --Everyone.

The First Amendment provides any person with the power to observe police activity. But, as with most liberties, there is a meandering complicated landscape that makes up the field of what is and is not protected observation of police activity. However, the basic premise of police observation is that you are free to watch, record, or even express criticism of the police so long as you do not interfere with the police as they conduct their lawful business.

That was not the experience of Roberto Cortez who was suddenly intercepted by LAPD officers after attending a community event at Jonce Thomas Harbor City Community Park--a park he frequently volunteered at. The officers claimed to have reasonable suspicion to stop Cortez and his friends after Cortez walked in the opposite direction of the police vehicle (also problematic but a whole other discussion). The officers started to take two of Cortez's friends into custody. Seeking to record the police misconduct, Cortez immediately took out his phone to record the arrest. Soon after taking out his phone one of the officers stopped the arrest of Cortez's friend to lunge after Cortez's phone. Visually confused Cortez walks back as the officer continued to grab at Cortez's phone. The officer then forced Cortez and his phone to the ground while a second officer aimed his taser at the crowd that had gathered to observe the arrest of Cortez.

The Constitution does not protect officers that use their authority as law enforcement to deter police observation for no other reason than disapproval of the practice. The typical way cops try (and fail) to criminalize police observation is by moving the observer as far away from police activity as possible and then charging the observer with obstruction when they fail to comply with the unreasonable request. As long as the observer is not actually interfering with police conduct it is unlawful to prevent the observing party from watching police activity. They can ask observers to move but rational for the movement must be to prevent obstruction of police activity. When cops remove people from the area without justification or arrest without underlying criminality they are violating the law.

For example, in Reed v. Lieurance, 863 F.3d 1196, 1205 (9th Cir. 2017) the 9th Circut decided that Sheriff's deputy was not entitled to qualified immunity on Reed's civil rights claim when Reed alleged that the deputy's infringed upon Reed's constitutional rights by issuing Reed a citation for violation of Montana statute prohibiting obstruction, and subsequently forcing Reed to go to a different location under threat of being taken into physical custody, when Reed was already at the "the farthest away place to be out of the way, but still be able to see ...". On the day, Reed informed the deputy that it was "illegal" to tell them they had to go to a specific place if they were not actually obstructing anything--an argument with which the 9th circuit ultimately agreed.

At base, police observation is usually speech, and as such is typically protected. Case law is clear that true speech activity that does not interfere with police conduct cannot constitute “resisting, delaying, or obstructing.” Ninth Circuit law even allows the questioning of police activity as circuit precedent ... "clearly establishes the right verbally to challenge the police,” and “verbal protests [cannot] support an arrest under [obstruction criminalization statutes].” Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir.1995).

For example, in Ballentine v. Tucker, 28 F.4th 54 (9th Cir. 2022) the 9th circuit decided that a police officer was not entitled to qualified immunity when the officer arrested plaintiffs in retaliation for their First Amendment activity. In Ballentine, the 9th Circut reached its holding after retaliatory arrest where a detective previously engaged with and later arrested, plaintiffs who chalked messages critical of the police in front of the local state courthouse, including messages stating “Fuck pigs!” and “Fuck the cops,” while others who chalked but did not engage in the anti-police speech were not arrested. Hence not only is filming the police-protected activity but also the expression of disapproval of police conduct is almost certainly protected speech as well.

Police are as fallible as the rest of us. Unlike the rest of us, cops are protected by large institutions that often try to change or position the facts of misconduct to be in the officer's favor. In Cortez's case, the LAPD report tangentially mentions that no firearm was recovered in its official statement. This could tee up the claim that officers thought that Cortez's phone was a gun, which is obviously absurd and not worth the cognitive energy it would take to evaluate the argument in writing--if its a gun you typically don't put your body in front of it and grab at it if you want to continue breathing. This brand of obfuscation and redirection is bad, but particularly bad when it is being executed by those same persons with the power to put you behind bars. These bad acts need to be addressed by every person subjected to them if police reform is ever to be realized.

Unfortunately, despite often egregious violations of civil rights by police, people in Cortez's position cannot roll back the clock and undo the harm caused by the violation of their rights. Nor can those in Cortez's position simply ask the police to reconsider their policies and training. Typically the sole remedy is all too often to bring an affirmative lawsuit against the police for violations of the individual's civil rights. However, this too can be an unsatisfying form of relief as affirmative lawsuits often take years to resolve, and even after years of litigation, it is incredibly rare to get a formal admission of wrongdoing from the offending police force. Rather the default is typically for the city to settle these matters outside of court for as little money as possible.