Know Your Rights: Copwatching 101

0:06The Des Moines of the John's Office of the United States. When I argue men argue against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs.

0:45Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. This episode is a bonus episode we are offering as part of a limited series we are calling Know Your Rights. It's kind of a what can the Constitution do for you guide. As we talked about when we were discussing Melissa's book, The U.S. Constitution, it's more important than ever for the people to understand the Constitution and to be able to claim it for themselves rather than handing it over to the weirdos at 1 First Street. A lot of our extra summer content is going to be in that spirit, and that includes this Know Your Rights segment, which we're hoping will be an informative overview to help our listeners stay safe and challenge unlawful conduct in an aggressive enforcement climate that calls for protest and public action.

1:27This particular episode is devoted to knowing your rights about cop watching, the ability to observe and record law enforcement officers. And here to join me in explaining rights regarding cop watching is a person who literally wrote the article on the topic, Jocelyn Simonson. Welcome to the show, Jocelyn. Thank you for having me. Thanks so much for joining. So Jocelyn is the Herman Badillo Professor of Law at Brooklyn Law School, where she teaches and writes on criminal procedure. She is also the author of Radical Acts of Justice, How Ordinary People Are Dismantling Incarceration. Okay, so Jocelyn, let's start with the basics.

2:00What is cop watching and why does it matter right now? Cop watching is a general term for watching law enforcement perform their duties in public. It could be with a cell phone recording them. It could not be. It could just be observing them. It could be alone or it could be with a group. But it's the deliberate watching of people who claim to represent the public and keep us safe. And because it's deliberately watching someone who has power, watching people who are used to having all the power, it carries with it an emphasis that can feel like a challenge and a power shift, right? I am watching you because you claim to be promoting safety.

2:43I may be recording you to try to make sure that you do the right thing in the moment. And if not, make sure that others can see what you're doing, too. Yes. So cop watching has always been important and it predates cell phones. But as many people are likely aware, there have been moments where cop watching has taken on increased significance. One of them was in 2014 and 2015 around the lives of Black Lives Matter movement, which is when I began writing about it. But in the last year and a half, cop watching has taken on renewed significance under the Trump administration, especially with watching federal law enforcement come into cities, especially ICE agents, but all kinds of federal law enforcement.

3:28So sometimes now it's called ICE watching, but it's the same thing. It's coming together to record law enforcement officers in your community. And we'll talk about some of those variations in the course of our discussion. But when you wrote your article, Cop Watching, in 2016, it was salient at the time and it is additionally salient now. So just to give our listeners a kind of reminder, the New York Times ran a story documenting its analysis of hundreds of cases brought by the Trump administration against protesters and immigrants, often related to allegations that people supposedly assaulted immigration officers.

4:02And in the 213 cases the Times analyzed where the government lost, they found, quote, officers charged more than two dozen people who were filming or following agents. And there was actually no allegation of physical contact with agents. So your article that appeared in the California Law Review, we should say, remains one of the authoritative texts on the topic. And you explored the particular phenomenon of organized cop watching. Can you talk to us a bit about organized cop watching? Where does it come from and what distinguishes it from just casually pulling out your phone when you see police activity?

4:37Yes, I think of organized cop watching as emerging around the 1960s in urban areas in the United States when the Black Panthers famously patrolled city streets with guns and cameras. And other civil rights organizations conducted unarmed patrols in groups to watch police officers to try to keep communities safe and try to tell people what was going on. And when I researched my cop-watching article in 2014, 2015, I researched the topic because I was seeing an expansion at the time of the tactic with the rise of Black Lives Matter. And I wanted to interview activists and understand why they were doing it, what they were experiencing, and why it felt so powerful.

5:19Because to me, it did feel powerful when I saw it happening. Organized cop-watching, it's different than casually pulling out your phone because it's collective. It's a group coming together. Sometimes they're wearing matching T-shirts. Sometimes they're not. Sometimes they have big visible cameras. Sometimes they don't. But it's a group coming together and saying... Sometimes they're organized gangs of wine moms. Sometimes they have whistles. They really are. They really are. Sometimes they have whistles. Sometimes there are signal chats. But it's different than casually pulling out your phone.

5:51It's collective. It's communal. And so it carries with it a particular significance in the moment. If we want to think of it as expression, which we do, it's saying the community is watching you, not just a person is watching you. And it can also be a communal show of support to those being arrested. I think that's a particular purpose, say, of ice watching in this moment. Or a way for groups to gather footage and data about what's happening, which, of course, can be done individually, but can be done much more effectively when done collectively. Yeah. So what does the law actually say about the right to film or record law enforcement, regardless of whether it occurs spontaneously by individuals or in organized groups?

6:39So the First Amendment does cover the ability to observe and record police officers performing their duties in public. That said, the Supreme Court has never said that. It's that most circuits have said that and none have said that's not true. The ones that haven't said it either way, of course, is an issue for things like qualified immunity. Like there are some places where it's not crystal clear, but it would be very hard to argue anywhere that the First Amendment doesn't cover it. Can I just break those categories into two? Because you distinguish qualified immunity on one hand from what the First Amendment protects.

7:17And I think asking, does the First Amendment protect your right to cop watching would be relevant in, let's say, a case where an officer arrested you and then someone attempted to prosecute you and you were defending against the prosecution on the ground that, you know, my First Amendment rights were violated. And so in that case, it seems fairly clear that First Amendment doesn't allow you to be prosecuted simply for filming an officer. But then qualified immunity would arise if you then attempted to sue the officers who arrested you for damages. And in that case, you don't just have to establish that the First Amendment gives you a right to film officers, but also that that right is clearly established.

7:51And there, the fact that the Supreme Court hasn't definitively said this, I think, is the obstacle. That's absolutely right. But most circuits have said pretty full-throatedly and really clearly, especially in more recent cases, although they go back, you know, decades, that the First Amendment covers the ability to observe and record. So both things, either or. I guess it would be hard to record without observing. But both things. Well, I guess you could set up a phone. I don't know. Yeah. And I'm not sure about that, about the surveillance question. Exactly. That might be a separate issue. I don't think that one is as clear.

8:31The First Amendment covers that activity. But just because something is covered by the First Amendment, protected by the First Amendment, doesn't mean you can always do it at all times. There are, of course, going to be limits. And so we hear what we call time, place, and manner restrictions. Every circuit that is addressed, it has said there, of course, could be restrictions. And the first one that they all jump to is that if it interferes with what the police are doing. Yeah. So we'll unpack those in a little bit. But just for now, I kind of want to go back to some different categories of cases involving cop watching.

9:07So as we were kind of talking about, you know, when you were researching your article, a lot of what was going on was the observation of state and local law enforcement. And now, of course, as you said, there's a lot of observing federal law enforcement, particular federal immigration law enforcement. So does the law differ depending on if you are filming federal versus state officers or immigration officers in particular? The First Amendment does not distinguish between levels of public officials. It's about whether they're a public official doing this duty in public. So in terms of the First Amendment view, there's no difference.

9:46In terms of the power of it, I think it is different, right? It feels very different to be from a city and to go out into your neighborhood and your streets where federal officers have come and it feels like they're occupying it to say, no, we live here and we're the community. But the Constitution doesn't distinguish. Yes. Just wanted to make that point of clarification for listeners. So you were talking about the time, place and manner restrictions, the reasonable time, place and manner restrictions that courts have acknowledged can be applied to filming, observing law enforcement officers. So could you just explain the concept of the reasonable time, place, and manner framework that governs this?

10:31And then we'll talk about, you know, specific aspects of this, like, you know, as you were saying, interference and whatnot. Sure. Well, I think it's fair to say that in the context of recording the police in particular, the time, place, and manner restriction idea is not especially detailed in the case law and is incredibly deferential to the police understanding of what is reasonable and what is not reasonable. That said, there have been cases where entire laws have been held to be unreasonable restrictions. So, for example, a law saying you can't record inside a police department office said, no, that's a restriction.

11:12And you might say you have a reason, but it's not a reasonable restriction. So when you're looking at particular rules, administrative rules and statutes, it might be easier. In a case-by-case situation, though, I'd be hard-pressed to be able to articulate something coherent, except for that you're supposed to know it when you see it. Yeah. Strict Scrutiny is brought to you by Lawyering Without Law. What happens when authoritarianism doesn't abandon the law but uses it to undermine democratic values and institutions? Lawyering Without Law, a podcast from the Knight First Amendment Institute at Columbia University, takes on this urgent question.

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15:00So maybe we can go into a little bit of how courts have tried to know it when they see it. So where the recorded interactions take place, so the place part of time, place, manner, restrictions. You know, is there a difference or what is the difference between recording law enforcement officers in a public park as opposed to somewhere like, let's say, a military base? So public space and public park is kind of the initial place that you start. And then when you start to say, well, we're on a military base, then you stop and ask, OK, is it reasonable to restrict it in that place? And as I said, courts have for the most part said that it's not reasonable to have a blanket restriction on government spaces, government places.

15:47There might be some exceptions. So inside of courtrooms starts to be an exception. And usually those exceptions start to get at the privacy of others or the ability of, say, the military or the police to do their jobs. There you see courts being a little less deferential to the idea, for example, like in this police department case that like, Like, oh, all of our police investigative work would be absolutely ruined if we ever let a camera in here. The courts were like, no, that's not quite true. Where you see the deference is more in the individual situations where an officer says, well, I couldn't possibly have done my work in that moment.

16:22Yeah. Okay. So one other place question, and then we'll get to the kind of manner and obstruction issues. And the place question is about private property. You know, can someone film law enforcement officers inside a store or a warehouse or some other privately owned space? That's going to be an it depends. Again, it's going to start with yes. It's going to start with yes. But there might be a situation where third party privacy concerns come in or potentially third party trespassing property concerns. But I've never seen that as a winning a winning restriction. So all of these are going to be it depends.

17:00and if one is engaging in ice watching or cop watching you're going to want to notice when you're shifting from public to private property but that doesn't mean you have to necessarily put away the camera yeah yeah it just means important to look around right and figure out like what the rules in that space might be that's right um okay so now let's go to the kind of what feels like the big potential restriction to me and that's the manner one and it is as you were saying a distinction between protected observation and unlawful obstruction or interference. You know, you obviously can observe, you cannot interfere or obstruct.

17:36So you mentioned, obviously, it's case by case, know it when you see it. But are there kinds of considerations that courts seem to have in mind when they are drawing the distinction? Or what does it look like? Here, the case law is very unclear. Courts are very hesitant to draw lines. And they're going attend to make relatively blanket statements about the ability of police officers to do their job is of utmost importance. And of course, we can't say definitively where that line would be. Like a line I would like to see them draw would be physical interference. And some courts start to say that, like touching.

18:15But even then, there are cases where someone's gotten close to a police officer. And again, this gets into more the qualified immunity space where there's layer upon layer of trying to figure out what's settled and what's not, where courts have said, well, it's not totally clear whether if you're just near somebody, you might be interfering with them. And so, therefore, we're not going to allow you to sue this officer for arresting you for trying to film them or something like that. So, I mean, I assume we'll circle back to this in the end, but like I can tell you what the law says, but I'm very hesitant to send people out with their cameras relying on these pretty vague statements that courts have made.

18:59No, that's part of what we are trying to get at is like to provide as much content as we can, but also acknowledge the limitations or at least some of the factors, you know, that seem to enter into court's analysis. So, you know, one potential source of limitations on the ability to film and observe officers would be statutes that prohibit, you know, interference or obstruction with law enforcement activities. Is there any kind of like additional clues about when those statutes can legitimately be used against someone filming law enforcement officers? Yeah, that's going to very much depend on the jurisdiction you're in.

19:37So every state has its own obstruction statute. In New York, we call it obstruction of governmental administration. Then there's, of course, the federal statute that you referred to in talking about the arrests in Minnesota. Rarely do they explain what they mean. So you're going to have to go to the case law. And there, there's going to be distinctions about whether it has to be physical or not. I think that's kind of a distinction that courts go to. In New York, in theory, you have to physically interfere with the ability of a police solver to do something. That's in theory. Before I was a law professor, I was a public defender.

20:16I tried thousands of cases and dozens of them were these obstruction or OGA cases. And very rarely did someone get anywhere near a police officer before being arrested. Does that mean they were ultimately convicted for it? Rarely? I would say never in those cases that I'm thinking of. This is often known colloquially as contempt of cop, like someone pissed off an officer. They cursed at them, which, by the way, the Supreme Court has said is constitutionally protected. Or they've recorded them or said, don't do that. Don't hurt him, man. Stop what you're doing. And even that verbal thing has sometimes been written right up into a complaint by a prosecutor as being obstruction.

20:59Can you get the case dismissed? Sure. But I think what we want to start to notice is that, like, yes, there are these laws on the books. But in practice, the practice of policing is one in which officers are on guard. And you can think it's for a good reason or you can think it's for a bad reason. They don't want to be challenged while they're doing work that they think is important and serious or what have you. And being filmed or being watched or having someone just say with words, stop, stop. You know, like we do when we see someone hurting someone and we don't think it's right, can feel like interference, can feel like a challenge.

21:39And not to get too much to the feelings of the guys with guns, but it does matter in terms of how they react and who they arrest and where we end up in court, even if cases end up being dismissed in the end. Unfortunately, the feelings of the guys with guns seem to matter all too much in the law these days. You know, you mentioned that you would like to see courts adopt a kind of line about physical touch as obstruction. But you also mentioned cases where, you know, people were arrested, you know, before they kind of even came close to an officer. So, you know, is there some sense about how close someone can get while recording before a court might say they're interfering?

22:19Or is this to, you know, when you see it, it just depends? Interesting. So it's interesting to me that you're asking that, like, where is the court going to draw the line? Yeah. As opposed to, like, in a know your rights training, like, of a community group, the question is not where is the court going to draw the line. The question is, like, what's going to get you arrested and what isn't. Where is that court going to draw the line? It's probably going to be either at physical, very close to physical, an officer testifying about being impeded in doing like in being able to make an arrest or something like that.

22:56Right. So helping free somebody from from being arrested. Sometimes it could be nonverbal obstruction as if you, you know, lie to a police officer or try to impede them from arresting somebody. somebody. I mean, the next question was going to be like after the courts, right, like on the ground, like what about physical proximity? Yeah. Yeah. It's case by case. And here's the thing. I mean, as a lot of us know from practice, when I would have a case and say, Your Honor, this is a clear First Amendment violation, the case gets dismissed, that doesn't get written down anywhere. Right. So we don't have like this rich written record of what judges are and are not going to think is a First Amendment violation.

23:39I think physical touch is a clear line that someone can point to and use, but it's not a crystal clear line within the case law because courts are going to say, and again, this makes logical sense. It just gets to be like, come on, just give me a rule. The courts will say, well, there could be times where you're not physical and yet you're still interfering. And it's like, sure, your honor, you're right. How about a default rule? How about But a general one. Yeah, still not going to get that. So, you know, we've been talking about cop watching as potentially encompassing both observing and recording.

24:12And so when you get into the recording space, another set of laws that might be relevant are wiretap laws. You know, can an officer arrest or charge someone with violating, let's say, an eavesdropping statute for just the recording part of the cop watching? No, they can't. Even in states with two-way consent laws, which quite a few states have. And actually, the Illinois case that led to the Seventh Circuit finding a right to record was an eavesdropping claim because they're a two-consent state. And there they said, first of all, there's a First Amendment right to record. And then officers don't have a reasonable expectation of privacy when they're out doing their work.

24:57So for the most part, that's not going to be a problem. The one time you might want to start to think about it is when non-law enforcement are involved. Because if you're out on the street, there's a lot of people being recorded. And then it's the audio part of the video and other people talking. So some organized cop watching groups, when they're thinking about what videos to make public, will think about the audio of third parties. Okay. Got it. And then another aspect of the recording or filming question is, let's say you're a poster, right? And so you want to post the audio or video recording you made on social media.

25:35Obviously, there have been some reported instances of officers arresting people for social media posts. But I guess I'd kind of generally ask, you know, can you get in trouble for that or like how often are people getting in trouble for that? And then the follow-up question is, and like, have courts kind of said anything about the limitations there? courts have said very little about the limitations there. What I can say on the ground is that more often the posting of law enforcement videos is being used as evidence against people in cases where the charge is not the post, but is something else.