A still image taken from police dash cam video allegedly shows Walter Scott running from his vehicle during a traffic stop before he was shot and killed by white police officer Michael Slager in North Charleston, South Carolina April 7, 2015. The footage, released by the South Carolina Law Enforcement Division on April 9, 2015, was taken minutes before a bystander's video recorded Slager gunning down 50-year-old Scott as he fled. Reuters/South Carolina Law Enforcement Division/Handout

And that includes in South Carolina.

Last Saturday, a Dominican immigrant named Feidin Santana used his phone to record video of North Charleston police officer Michael Slager firing his gun eight times and killing Walter Scott, an unarmed black man who was running away. Slager has been charged with murder. Santana, who is being celebrated as a hero, has since said that he was terrified and thought about erasing the video. He had reason to be afraid. What if police had assaulted or arrested Santana, or destroyed his phone?

In reality, police harassment of civilians recording law enforcement is a frequent occurrence throughout the United States. And contrary to assertions made in two recent New York Times articles, the truth is that courts have not uniformly recognized that a right to record police actually exists. Though the U.S. Department of Justice has expressed its support for the right to record, only four federal appeals courts have ruled that such a right exists; others have either not ruled at all or narrowly ruled that no right had been "clearly established."

Until a right to record police is in fact clearly established, some officers will continue to act against bystanders who record them with impunity.

That legal fight has been raging across the country, including in South Carolina. In 2013, a Darlington County sheriff's deputy appeared to grab Arthur Noll's camera as he recorded law enforcement walking through a campground near a NASCAR race. The deputy also allegedly pushed him. Noll has sued Darlington County Sheriff Wayne Byrd and the deputy who allegedly harassed him, Sterling Poston, in federal court, contending that his First and Fourth Amendment rights had been violated. The sheriff reportedly refused to even investigate the case unless Noll, who lived out of state, filed a complaint in person.

"Taking photographs and video of things that are plainly visible in public spaces is a constitutional right—and that includes police and other government officials carrying out their duties, including those in South Carolina," emails American Civil Liberties Union of South Carolina Legal Director Susan K. Dunn. "However, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places, and harassing, detaining and arresting those who fail to comply."

In part, that may be because it is a constitutional right that hasn't been clearly recognized in South Carolina—or in a lot of states. Byrd and Poston contend that Noll's case should be thrown out, arguing that the deputy "made a discretionary decision to remove the recording device from the individual’s hand in an effort to gain control of the situation" and that his "brief possession of the cell phone to stop the recording was a minimally intrusive seizure based upon reasonable suspicion."

And, they added, there appears to be no "United States Supreme Court or Fourth Circuit Court of Appeals decision recognizing an individual’s right to record the activities of law enforcement officers within the geographical boundaries of the Fourth Circuit."

They appear to be right.

In 2009, the Fourth Circuit Court of Appeals (which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina) upheld a lower court ruling in Szymecki v. Houck that there was no clearly established right to record police—but did not rule on whether such a right in fact exists. That's because in civil rights suits, law enforcement agents are protected by the qualified immunity doctrine, meaning that they cannot be sued for acting in a manner they reasonably believed to be lawful. The opinion in Szymecki was unpublished so the ruling did not establish a precedent, and its reasoning is unclear. But Byrd and Poston reference Szymecki as "very strong evidence that there is no clearly established right."

Thanks to the qualified immunity doctrine, courts in civil rights cases don't have to determine whether a particular right exists if they decide that the existence of such a right was not reasonably obvious to a law enforcement agent. The result is bizarre. Civilian videographers have had civil rights cases tossed out because some courts have not recognized that a right to record has been clearly established. And courts are rarely forced to rule on whether such a right exists in criminal cases because prosecutions of civilian videographers are rarely carried out—so defendants don't get the opportunity to present their First Amendment right as a defense.

Dunn, of the ACLU, says all federal circuit courts should rule in favor of a clear right to record. The lack of clarity has had serious consequences in the Fourth Circuit.

In March 2010, a Maryland State Police trooper stopped motorcyclist Anthony Graber on an I-95 off-ramp. Graber recorded the incident from a helmet-mounted camera and posted it on YouTube. The video wasn't flattering—the plainclothes trooper was brandishing his gun—and was ultimately viewed millions of times online.

What happened after the video got posted was far uglier: State Police charged Graber with violating the state wiretap statute and raided his home. A Harford County judge threw out those charges. Graber could have faced up to 16 years in prison, according to the ACLU of Maryland.

In May 2010, Christopher Sharp used his cell phone to record Baltimore City Police officers arresting and allegedly assaulting his female friend at the Pimlico Race Course. An officer allegedly took his phone. When it was returned, Sharp claims he discovered that officers had deleted the recordings of his friend's arrest, as well as multiple personal videos. (Another video of the same incident, which the ACLU of Maryland says was recorded by another person, is on YouTube). Sharp filed a civil suit and the city settled for $250,000. Baltimore Police ultimately issued a new policy instructing officers that civilians have a right to record. But because the case was settled, there will be no ruling. It too won't be helping to establish any precedents in the Fourth Circuit.

*****

The legal winds have been blowing strongly in favor of protecting a right to record, says Jeff Hermes, deputy director of the Media Law Resource Center.

"The overwhelming trend of the case law is recognizing this right in at least some circumstances," Hermes says. "The battle is really going to be over under what conditions restrictions can be placed on that right."  

In 2011, for example, the First Circuit Court of Appeals (which covers Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) ruled in Glik v. Cunniffe that "though not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

The case stemmed from 2007, when Simon Glik was arrested for using his cell phone to videotape police arresting a man on Boston Common. Glik was charged with violating the Massachusetts wiretap law, which as in some other states bars the secret audio recording of another person (stand-alone video and photography is not mentioned). He was also charged with disturbing the peace and aiding in the escape of a prisoner.

Glik said that he was concerned that the officers were using excessive force. But police said that it was Glik who had broken the law.

"After placing the suspect in handcuffs, one of the officers turned to Glik and said, 'I think you have taken enough pictures,'" according to the First Circuit ruling. "Glik replied, 'I am recording this. I saw you punch him.' An officer then approached Glik and asked if Glik's cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts's wiretap statute."

Prosecutors dropped the aiding in the escape of a prisoner charge, and the charges of disturbing the peace and violating the wiretap law didn't make it past Boston Municipal Court. But Glik had trouble seeking justice: police, according to the First Circuit, did not even bother to investigate his internal affairs complaint. Glik filed a civil rights lawsuit.   

The First Circuit found "that Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause." They pointedly described Boston Common as "the oldest city park in the United States and the apotheosis of a public forum."

Glik is the most important ruling on the right to record, says Hermes, because it grounds the right in other well established First Amendment-protected activities, including the right to collect "information about government officials in a form that can readily be disseminated to others."

"As a result the decision has received a lot of attention and has really driven this renaissance in thinking about and recognizing the right," says Hermes.

But even the First Circuit did not address the critical matter of whether there is a right to secretly record police officers. Notably, the court ruled that Glik had not violated the state wiretap law because the phone was "held in plain view."

"Think about what an open and obvious recording requirement would mean in the recording incident in South Carolina," says Hermes. Would we, he asks, really want to require someone like Santana to announce to the officer that he was recording? "The public interest in people being allowed to do this is pretty obvious. I think as these incidents accumulate this only supports the idea that this protection is necessary. Whether it exists in the Constitution is another issue."

Jorge R. Roig, an associate professor at Charleston School of Law, says that South Carolina's wiretap statute should not "apply in the case of the recording of the shooting of Walter Scott, because the recording was made in a public place in which the officer had no reasonable expectation of privacy."

"This statutory provision only prohibits recording an oral communication when there is a reasonable expectation of privacy," says Roig. "A police officer shooting a gun in an open space could hardly claim to have a reasonable expectation that the sound of the gunshots would remain private."

But the Darlington County case—where the sheriff and deputy are in fact making the case that Noll may have violated the wiretap law—is a reminder that the constitutional right to record remains unsettled in the Fourth Circuit.

In Massachusetts, the right to surreptitiously record likewise remains unclear. In a landmark 2001 decision, the Supreme Judicial Court of Massachusetts ruled that Michael Hyde had violated the state wiretap law for secretly recording a traffic stop. And last May, police in Springfield charged a young woman with violating the wiretap law after they said she surreptitiously used a phone, hidden in her purse, to audio record her arrest (she was arrested because she was allegedly belligerent and carrying an open container of alcohol). Prosecutors ultimately dropped the wiretap charge. And that means that for now, neither the First Circuit nor state courts will be reviewing the constitutionality of surreptitiously recording the police.

*****

The federal court rulings in other parts of the country have been mixed.

In 2012, the Seventh Circuit (which covers Illinois, Indiana and Wisconsin) ruled against an Illinois wiretap law that explicitly barred the recording of law enforcement officers, finding that "restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording."  

But they too left the matter of surreptitious recording unclear.

In 1995, the Ninth Circuit—which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands—ruled that there is a "First Amendment right to film matters of public interest."

In 2000, the Eleventh Circuit (covering Alabama, Florida and Georgia) ruled briefly that there is "a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct."

But in 2010, the Third Circuit (covering Pennsylvania, New Jersey, Delaware, and the Virgin Islands) ruled both vaguely and narrowly that "the right to videotape police officers during traffic stops was not clearly established."

The ACLU of Pennsylvania has in recent years filed numerous lawsuits against Philadelphia police for retaliating against civilians recording officers in action—including some related to incidents that took place after a 2011 memo issued by Commissioner Charles Ramsey advised officers that civilians have a right to record.

Hermes is not aware of any rulings from the Second (covering Connecticut, New York, and Vermont), Fifth (Louisiana, Mississippi, and Texas), Sixth (Kentucky, Michigan, Ohio and Tennessee), Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota), Tenth (Colorado, New Mexico, Oklahoma, Utah and Wyoming), or D.C. Circuit Courts. Judges in Texas and Ohio federal district courts did rule last year in favor of the right to record.* But in March, a federal district court judge in Connecticut ruled that there was no clearly established right in the Second Circuit in a case involving a man using a drone to record the scene of a car accident.

"Distinguishing based on the recording technology strikes me as a dangerous line to go down," says Hermes.

And even the First Circuit has recently made the right to record less secure.

In the 2014 case Gericke v. Begin, Hermes says, the First Circuit further clouded the waters, finding that "reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them. ... The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure—for example, a command that bystanders disperse—that would incidentally impact an individual's exercise of the First Amendment right to film."

Feidin Santana, who recorded video of the shooting death of Walter Scott at the hands of a police officer in North Charleston, has said that he was terrified and thought about erasing the video. (Today/NBC)

This, says Hermes, opens the door to "some restrictions targeted at recording that could be superficially cast as 'safety measures.'"

States can also act to protect, or attempt to inhibit, the right to record. Legislators in both California and Colorado have introduced legislation to protect the right.

Roig, of Charleston School of Law, says that the South Carolina General Assembly has introduced numerous pieces of legislation related to recording police, including one that would prohibit police from seizing recording devices in most cases. But others would prohibit the production and public display of a recording of a crime, and the distribution of certain crime scene images on social media. Roig says none of the legislation appears to have made any progress.

*****

The rise of widespread civilian videography has forced courts to interpret the First Amendment in a way that encompasses new technology—and, as a result, a new type of newsgatherer as well.

"The proliferation of electronic devices with video-recording capability," the First Circuit ruled in Glik, "means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status."

Carlos Miller, founder of the website Photography is Not a Crime, is one such new media practitioner, though he previously worked as an old-school reporter for the Arizona Republic and other papers. Recording the police became Miller's life work, he says, after he was arrested in 2007 for photographing police in Miami.

Miller started the website to publicize his own case, but he says it immediately began attracting stories from people in similar situations around the country. He also felt the issue wasn't being covered by the mainstream media, and says he noticed that complaints of police harassment seemed to grow after 2007, when Apple introduced the first iPhone. "For the first time in history people had the power to video record something on their cell phones and upload it to the internet within minutes."

There are now a host of phone applications to help civilians record law enforcement, including Cop Watch, which automatically uploads recordings to YouTube before police can erase it. Civilians can then directly upload their video to a site like YouTube—or send it to Photography is Not a Crime, to the ACLU, or to a journalist (like me). Miller encourages anyone recording law enforcement to be respectful, and to not block traffic or physically obstruct investigations. "Don't give them any excuse to arrest you," he says.

Today, Miller says that he has nearly 100 volunteers working on the site, along with paid freelance writers and a full-time researcher, and receives multiple emails a day conveying new incidents of harassment or suppression. The site has been covering the Scott case closely, and Miller compliments Santana for his camera skills—particularly that he remembered to hold his phone horizontally, and not vertically, so as to capture the whole scene.

"I'm trying to bring him into our network," he says. "Because he's the kind of people we're looking for."

Criminal cases have historically pitted an officer's word against that of a defendant—a contest defendants often lose. But video has the power to trump police credibility in the court room.

"It's up to the citizens of this country to be the media," says Miller, "to use their cameras and record police in public when they see something that they believe might become newsworthy, or to record their interactions with police if they get pulled over."

*This story has been updated to include information on federal court rulings in Texas and Ohio.

Top image: A still image taken from police dash cam video allegedly shows Walter Scott running from his vehicle during a traffic stop before he was shot and killed by white police officer Michael Slager in North Charleston, South Carolina April 7, 2015. The footage, released by the South Carolina Law Enforcement Division on April 9, 2015, was taken minutes before a bystander's video recorded Slager gunning down 50-year-old Scott as he fled. (REUTERS/South Carolina Law Enforcement Division/Handout)

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