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5th Circuit Declares First Amendment Right To Take Video of Police

The 5th U.S. Circuit Court of Appeals ruled last week that the right to videotape the police is protected under the First Amendment. In this case, the Fort Worth police handcuffed and detained Phillip Driver in 2015 for taking video of the police station from the public sidewalk.

In Turner v. Driver the court, whose rulings cover Texas, Louisiana and Mississippi, noted that gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs."

"This case declares the importance of filming police activities by acknowledging the public's ability to hold the police accountable and not to abuse their power," says Houston lawyer Philip Hilder, a former federal prosecutor, founder of Hilder & Associates P.C. and who also serves on the City of Houston Independent Police Oversight Board.

"The Court also notes the importance of the citizen's role, in that a recording may corroborate probable cause or even exonerate the police if they are charged with wrongdoing. Bottom line, this reinforces that citizens have a constitutional right to record the police subject only to reasonable time, place and manner restrictions."

With this ruling, Mr. Driver will be allowed to pursue his Fourth Amendment claim against the police because his right against unlawful arrest was clearly defined at the time. Though this decision makes a First Amendment claim available going forward, the appellate court said Mr. Driver won't get a trial on that right. The court said at the time of the 2015 arrest, the First Amendment right to video the police had not yet been legally established.

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