In this June 24, 2015 photo, a person at right records Sacramento Police officers taking a suspect into custody. AP Photo/Rich Pedroncelli

Not all U.S. federal courts have fully backed the right to record police activity. And that matters when it comes to the potential for retaliation.

On Sunday, August 2, in the wee and boozy hours of the morning, camera-wielding activist Antonio Buehler found himself once again in Austin Police Department handcuffs.

Buehler is the founder of the Peaceful Streets Project, and has been arrested multiple times while carrying out that group's mission—which includes frequently recording Austin, Texas, police officers while they’re on the job. This time, he was charged with interfering with police and resisting arrest.

Buehler's crusade began just after midnight on New Years Day 2012, when he observed Austin police arresting a woman, allegedly after she advised the driver of the vehicle in which she was riding not to consent to a sobriety test. Buehler began taking pictures, and yelling that the officers appeared to be using excessive force. He was then arrested as well, and Buehler, an Iraq war veteran and West Point graduate, wouldn't forget it.

"Before my arrest I was very politically active, but I wasn't concerned about local issues, and I certainly wasn't concerned about the police," says Buehler. Initially, he assumed the cops who arrested him were bad apples. But when he saw no response from city leaders, and that police had pressed additional charges against the DUI passenger, he became convinced that the problem was systemic. "I got sucked into it. And I kept seeing story after story after story of police abuse."

A 7-11 surveillance video lends credence to Buehler's account of that 2012 arrest: he was recording from a distance when an officer approached and wrestled him to the ground. Buehler wasn't interfering, except, perhaps, with the officer's preference that Buehler not record him. Buehler was also accused of spitting on an officer, a charge he denies.

It might seem obvious that citizens have a right to record police officers when they are performing their duties in public. After all, had a conscientious bystander not recorded the killing of Walter Scott in North Charleston, South Carolina, the officer's word in that case could very well have prevailed. Many federal courts have in fact resoundingly backed the right to record police.

But strangely, and contrary to what you will sometimes read, some have not. No federal circuit court has ruled that there is not a right to record police. But some have ruled that such a right is not clearly established. This is a crucial distinction, because an officer who violates someone's right to record, if that right is not clearly established, is protected by qualified immunity and cannot be sued. And the upshot of this murkiness is that police in many jurisdictions can retaliate against civilians recording them with a reasonable expectation of impunity.

In recent months, however, the juridical dominos have continued to fall toward establishing a clear public right to record police.

One of the most recent cases is from July, when a federal district judge in Philadelphia ruled that a lawsuit alleging that police in Collingdale, Pennsylvania, wrongfully arrested a mother who was recording officers as they allegedly harassed her husband and arrested her daughter could go forward, rejecting the argument that there is no clearly established right. The Third Circuit has not yet ruled that there is a clearly established right.

And in May, New York federal District Court Judge P. Kevin Castel ruled that there was a clear right to record police officers in the case of a videographer arrested during an Occupy Wall Street protest, finding that even though neither the Second Circuit nor the Supreme Court has ever articulated a clear right to record the police, "a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment."

But Judge Castel makes clear that even a well established right is hard to clearly define and has limits—limits that activists like Buehler will no doubt be testing.

"Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation," wrote Judge Castel.

A carve out that fails to protect surreptitious recording would be a significant one: what might have happened had the young man who recorded Walter Scott's shooting let that officer know what he was doing?

In the meantime, the law is being developed case by case.

Buehler says that his most recent arrest, recorded by numerous fellow activists on Austin's raucous and bar­lined 6th Street strip, was yet another incident of retaliation. Police allege, according to his arrest warrant, that Buehler and "a crew of about 6 members of Peaceful Streets" interfered with police by "running to the scene in an effort to get their video cameras on the incident before we could get there."

Police allege that Buehler then "approached our perimeter and made contact with Sgt. Randy Dear…holding a video recording device in his hand and was holding it approximately 6 inches from Sgt. Dears' [sic] face nearly touching him." Dear "asked him to get back as he was...blocking his view." But Buehler allegedly kept putting "his recording device approximately 6 inches away" from officers faces, and "arguing with us getting closer and closer every time attempting to distract and engage in conversation."

Buehler, the recording makes clear, was not behaving very pleasantly. And he was definitely recording pretty close to police. But initially, he was recording from a greater distance. It also appears that an officer, who Buehler identifies as Sgt. Dear, first approached Buehler. This suggests that police may indeed have been antagonizing him for recording, and that the charge of interfering with police could be a pretext. Buehler has published an email, which he says he obtained through an open records request, from an Austin Police Department lieutenant, which states that Buehler—it mentions him by name—should be arrested if he "does interfere with an arrest" and that "his video camera should be seized as evidence."  

Buehler has filed a federal lawsuit contending that Austin police have wrongfully arrested him for recording. In February, a federal magistrate judge dismissed the suit, for reasons related to grand juries being used to immunize police from lawsuits, which I will explore in a future post. But the judge did find that Buehler had a clear right to record. Buehler says that he has filed an appeal.

Not all judges agree. In March, a different federal judge in New York, Loretta A. Preska, found in a separate Occupy Wall Street case that it "remains unclear whether Plaintiff's filming was protected by the First Amendment" because "neither the Supreme Court nor the Second Circuit has addressed 'the right to photograph and record the police.'"  

Buehler and others will continue to be arrested for recording police until, and even after, the U.S. Supreme Court makes it clear they cannot be.

"While there is a clear trend among recent federal court decisions to recognize some form of a right to record, the details of that right and how it is applied in different circumstances remain a matter for debate," emails Jeff Hermes, deputy director of the Media Law Resource Center. "This is likely to continue even if the Supreme Court were to uphold the right directly; as with the Fourth Amendment right against warrantless search and seizure, the devil is in the details."

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