While it appears that there is a general, amorphous right to film police, a decision by Judge Kevin Castel, SDNY, Higginbotham v. City of New York, both focuses and fuzzies the right at the same time.  The cases involved Douglas Higginbotham, a free-lance video-journalist, working for TV New Zealand covering Occupy Wall Street. And New York’s Finest treated him like anyone else.

While he was filming “an arrest that resulted in a significant injury to the person being arrested,” he was ordered to climb down from the telephone booth by the defendant police captain, but could not immediately comply because there were too many people surrounding the booth. Eventually, he began to climb down, and when he did so, the three individual [police officer] defendants pulled his legs out from under him, causing him to drop his camera and fall onto the ground.

He was cuffed (plastic) for three hours, held until issued a summons for disorderly conduct, which was subsequently dismissed.  And he sued.  In a decision denying summary judgment, the court rejected the defendants’ claim of qualified immunity by holding:

The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’”

A “clearly established” right? Hooray?  Well, maybe a small “yay” is more appropriate.  Note the qualifying phrase, “at least in the case of a journalist who is otherwise unconnected to the events recorded.”  There are two qualifiers in there that warrant concern.

First, the court limited the “clearly established” right to a “journalist,” not a everyone, not a citizen journalist, but a journalist.  Second, the journalist must be “otherwise unconnected to the events recorded,” which may mean that he’s there, and acting, solely in his capacity as a journalist, or may mean that the police lack a basis upon which to believe that he’s unconnected to the events.

As to the journalist prong, this is a vague qualification. There is no facial definition for what makes someone a journalist. While we can all agree that a New York Times photographer with police issued press credentials is a journalist, and now a free lancer for TV New Zealand, what of a blogger? What of Carlos Miller at PINAC?

As alleged, however, Higginbotham’s conduct falls comfortably within the zone protected by the First Amendment. The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming.

Notably, the court adds the word “professional” to journalist, which in this context suggests that only someone being paid for his services qualifies as a journalist.  The court provides no parameters, but (like pornography?), knows a journalist when it sees one. While Higginbotham’s conduct may fall “comfortably within the zone protected by the First Amendment,” it offers no guidance as to where the line of that zone might be.

As Tim Cushing at Techdirt has pointed out, the NYPD Patrol Guide, which are the internal rules for the performance of the job of police officer, provides that filming police is not a ground for arrest.

“[T]aking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others.

As with “unconnected” to the event, this leaves a big hole, jeopardizing the safety of cops and others, which is left to the discretion of the cop on the street.  Not that the Patrol Guide has the force of law, as it’s merely the internal rules for police officers, but it leaves it up to police to decide whether the circumstances are such that they feel that their safety is threatened.  As has been demonstrated many times, the mere existence of non-cops on the planet strikes fear in the hearts of cops.

In situations like Occupy Wall Street, and the Ferguson and Baltimore protests, the existence of journalists interspersed with protesters raises significant questions as to their presenting a threat to officers, interfering with their assertion of control and being connected to the underlying conduct at issue.  In other words, even to the extent that professional journalists enjoy a “clearly established” First Amendment right, there are so many variables that remain up to police discretion as to perpetuate enough muddiness to fill a police officer’s heart with joy.

Yes, it’s a big step forward to have a judge hold that there is a clearly established right, even if it’s not for you (or me) to exercise the right to record police in the course of the official public duties.  But to claim the right is to ask for trouble, given the discretionary decisions left in the hands of police.

Sure, it can all be fought out later in court, but that’s not going to do much good when whatever was being filmed was disrupted by the cops arresting you, seizing your camera and hauling you off.  Despite this small dose of clarity, more remains fuzzy and uncertain, and that’s really all the police need to assure that they can screw with you for filming them and prevent whatever you are trying to accomplish from happening. That means, of course, that even if they lose, they win.