Florida Criminal Defense Lawyer Blog
(Thanks to Elizabeth Chailosky for her work on this post)
HYPOTHETICAL
You see your teenager being arrested by police. You approach police who tell you to get away. You feel thoroughly scared and helpless. With the Derek Chauvin trial still fresh in your mind, you pull out your phone and begin recording officers. The officers see you standing across the street recording them. They shout, “Stop recording us or we will arrest you!” You continue to record believing that you have a legal right to do so. Even though you’re keeping your distance and not interfering with the officers in any way, you are stripped of your liberty and charged with obstruction. This arrest must be an unlawful, right?
WHAT HAPPENED
The facts detailed in the above hypothetical mirrors the facts in a 2009 South Florida criminal case. Tasha Ford was arrested for filming officers while they detained her teenage son outside of a Boynton Beach movie theater. Ford’s son was accused of sneaking into the theater without a ticket, prompting officers to detain him for the alleged crime. After Officer Robert Kellman called Ford at her home to explain that her son was in custody on suspicion of trespassing, Ford immediately responded to the scene with her digital camera and began recording the officers. Ford hoped that her digital camera would help prevent the officers from lying about what happened that Saturday night, but instead, officers arrested Ford on an obstruction charge.
While the State Attorney’s Office declined to prosecute Ford on wiretapping and obstruction charges, she decided to sue the officers in a false arrest claim. Ford argued that it was her constitutional right to record officers in a public place as they detained her son. In contrast, the officers said they repeatedly asked Ford to stop using her camera without their permission, as it was interfering with the investigation of her son. Ultimately, lawyers for the officers argued that they never consented to being recorded and as a result, Ford invaded their privacy and infringed upon their investigation of her son’s detention.
THE RULING AND WHAT IT MEANS
After more than a decade of litigation, a Florida appeals court ruled 2-1 this past Wednesday that officers had probable cause to arrest Ford on the obstruction charge. This ruling ultimately means recordings of police interactions are subject to the officer’s right of privacy, and that the act of recording an officer performing official duties in a public space could result in an arrest. Ultimately, if police are protected from being filmed, every person who records an interaction with police would be committing a crime.
CONCLUSION
I despise this ruling. I have to believe that it will be appealed and that the Florida Supreme Court will reverse this horrible decision. As shown by Darnella Frazier’s almost 10-minute video of Derek Chauvin kneeling on George Floyd’s neck, video recordings of police interactions are essential to police accountability. People have a First Amendment right to record police officers so long as they do not obstruct police officers from doing their jobs. Given how important Frazier’s video recording was in convicting Chauvin of murder and manslaughter, it is worrisome to imagine what could happen in the future if cops continue to be protected from being videotaped.