The Third Circuit Court of Appeals recently issued a decision in Fields v. City of Philadelphia addressing the constitutional right to record police engaged in official business in public. This got me wondering about the nature of that right in Idaho. The Third Circuit covers Delaware, Pennsylvania, New Jersey and the Virgin Islands while Idaho is in the Ninth Circuit. A quick bit of legal research revealed that there are two cases addressing the right to record or photograph police from the Ninth Circuit Court of Appeals. While these two cases are unequivocal that such a right to record police exists they don’t offer much by way of analysis of this right. As a result, Idahoans are left in the position to determine for themselves the boundaries, so to speak, of the right to record police. But there’s no guarantee that courts will agree with whatever conclusion at which we each arrive.

The foundational Ninth Circuit case, if such a short opinion can be called that, is Fordyce v. City of Seattle. In this case Jerry Fordyce was attending and recording a public protest in Seattle. Police were in attendance at this protest, so part of recording the protest necessarily included recording the police. While filming the protest, at least one police officer “attempted physically to dissuade” Fordyce from recording. Later, Fordyce was recording some bystanders at the protest who objected to being recorded. He was eventually arrested for this because it allegedly violated a Washington state law prohibiting recording private conversations unless all parties consented (NOTE: Idaho is a one-party consent state, meaning that a party to a conversation can record that conversation without the consent of the other party). In response to all of this, Fordyce sued alleging a violation of his First Amendment constitutional right and sought damages under 42 U.S.C. § 1983.

The Ninth Circuit Court of Appeals issued a short ruling in the appeal stemming from Fordyce’s lawsuit. In it they recognized a “First Amendment right to film matters of public interest.” This premise was apparently so uncontroversial in the court’s eyes that it spent no time defending this proposition nor did it even offer a citation to case law in support. While the court noted that there were “genuine issues of material fact” it did not seem to perceive any dispute as to this point of law. Unfortunately, this lack of a perceived dispute means that the court didn’t expend the intellectual resources necessary to fully flesh out the nature and foundations of the right to record matters of public interest and how this applies in practice to messy citizen-police interactions.

The same is true of the other Ninth Circuit case which addresses photographing police. In Adkins v. Limtiaco, James Adkins was driving down the road when he observed police investigating a car accident. Mr. Adkins pulled over and began to photograph the accident and attendant investigation. He was eventually detain, ordered out of his car, ordered to turn over his cell phone and eventually arrested. Like in Fordyce, the court spent almost no time addressing the constitutionality of Adkins’ actions, simply noting that this right to take the photographs was “clearly established.” So combining the analysis of Fordyce and Adkins doesn’t provide much guidance for Idahoans wishing to record police while simultaneously hoping to avoid arrest.

The question I set out to answer with this blog post was whether there is a right to record police engaged in official business in public in Idaho. The answer is a simple yes. But what would I do if I wanted to record police? That answer isn’t as simple. As someone who has occasional suspicions about the government’s supposedly good intentions, I want to record police engaged in official business and encourage others to do so as well. But as a lawyer, I want to advise others to be risk-adverse and avoid doing anything that could subject them to criminal liability. How does one balance these two interests? As Fordyce and Adkins show, police officers often don’t appreciate being recorded. As a result, they may threaten individuals with arrest for doing so (potentially for resisting or obstructing a public officer). Don’t give police any excuse to arrest you or do anything that could help them seek a conviction for such a trumped up charge.

In short, record police but stay out of their way. If they ask you to back up, do so, even if it means your viewers on Periscope won’t get the best angle of the action. If the police threaten to arrest you, they’ve put you (and themselves) in a precarious position. But fail to heed their warning at your own risk. What I’d do at that point would likely depend on my plans for the rest of the day. If I had a hot date with a beautiful immigration lawyer coming up, I’d probably just do whatever I could to avoid be arrested. If my date was with my PS4 I might consider standing on principle, risking arrest but also the right to file a § 1983 suit. But pursuing such a suit would be a lot cheaper for me since I could represent myself. If ever put in a situation similar to Fordyce or Adkins you’ll have to make your own decision, but know that (at least conceptually) the right to record police in Idaho is clearly established.

Signing off for now.