Lights, Camera, Arrested: Filming the Police Can be Risky Business

January 5, 2015

By: Brandon Pierce

Daniel Saulmon, charged with resisting, delaying, and obstructing an officer, spent four nights in a California jail—simply because he used a cell phone to film police officers on a public street.[1]  Fortunately, for Mr. Saulmon, his cell phone recording showed the exact opposite.  The video showed Saulmon being arrested only after he failed to provide the arresting officer with some form of identification.

Certainly that was not the first time a person attempted to film police officers in public.  The media has covered over and over and over and over again the developing trend of “citizen-journalists” using cell phones to film officers.  In many instances, police have barraged these citizens with demands to turn off their phones, have confiscated phones, and, like in Saulmon’s case, have arrested individuals who attempted to capture them on video.

Consider this: the First Amendment to the United States Constitution protects our freedom of speech against governmental censorship.  Law enforcement officers are public officials, serving on behalf of the government.  So the right to film law enforcement without legal repercussions would seem like a legal no-brainer, correct?  Well, many courts are still split over that supposition, and are working to find some resolution.  The United States Supreme Court has yet to weigh in on the issue, after denying certiorari to Anita Alcarez v. ACLU of Illinois in 2012.[2]

video

Why is this happening?

In 2012, the American Civil Liberties Union of Illinois (ACLU) asked the United States Court of Appeals for the Seventh Circuit that very question.[3]  The ACLU’s issue arose as a result of Illinois’s 1961 Eavesdropping Act.[4]  The statute prohibited the use of an eavesdropping device to record or hear any oral communication without “the consent of any communicating party.”  Violating the statute constituted a Class 4 felony, punishable with one to three years of imprisonment.[5]  However, law enforcement was granted even greater protection: violation of the statute against a police officer upgraded the charge to a Class 1 felony.  Thus, the punishment became more severe with a possible four to fifteen year prison sentence.  The ACLU challenged the statute’s constitutionality.  Ultimately, the Seventh Circuit held that the Act’s prohibition of openly filming police officers in public “burdens First Amendment rights directly, not incidentally.”[6]  Therefore, it is perfectly legal for citizens within the Seventh Circuit to record police officers performing their duties in public.

By contrast, in 2010, the Third Circuit refused to recognize filming the police in public as a First Amendment right.[7]  In that case, Brian Kelly was arrested for filming a police officer during a traffic stop.  The Pennsylvania Wiretap Act was used to justify the arrest.  The Act prohibits “the interception or recording of a conversation without the consent of all communicating parties.”[8]  When confronted with this issue, the Third Circuit held that due to “insufficient case law,” there was no right to videotape a police officer during a traffic stop.

The Importance of Your Right to Film the Police

Ensuring transparency within the law enforcement is a powerful public interest.  Filming the police affords valuable evidence of government misconduct, which is becoming easier to do each day.  Today’s technology has created multiple avenues for citizens to stream police conduct via Internet, often times, in a matter of seconds.

However, in states where courts have ruled in favor of the right to lawfully film police officers, there still exists the misconception that it is illegal.  That misconception was so pervasive that the New York City Police Department had to be reminded through an official memo circulated to each of its officers.  According to Daily News, the memo reminds officers that “members of the public are legally allowed to record police interactions,” and that “intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.”

Considering the national attention regarding police conduct, the NYPD’s memo is extremely timely, as more people are starting to film police interactions.  The public is more informed about how police officers are executing their duties when citizens are allowed to film and distribute police videos.  Additionally, it promotes accountability and transparency within civilian and law enforcement relations.  Ultimately, when police officers know they are being filmed, officer misconduct is less likely to occur.  Therefore, a citizen’s right to film the police is just and necessary; its legality, however, is still being debated throughout the nation.  For now, filming police officers in public places remains a risky business.

[1] http://photographyisnotacrime.com/2012/11/24/california-man-jailed-four-days-for-recording-cops/

[2] http://www.supremecourt.gov/orders/courtorders/112612zor_f204.pdf

[3] ACLU v. Alvarez, 2012 U.S. App. LEXIS 9303 (2012).

[4]http://ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt.+14&ActID=1876&ChapterID=53&SeqStart=33800000&SeqEnd=35000000

[5] Illinois Compiled Statutes (ILCS) – 730 ILCS 5/5-4.5-45.

[6] ACLU v. Alvarez, 2012 U.S. App. LEXIS 9303 (2012).

[7] 622 F.3d 248, 262 (3d Cir. 2010).

[8] 18 Pa. Cons. Stat. § 5703.


Rally to Restore the Fourth (Amendment) to be held July 4th, 9am at Trade and Tryon.

July 1, 2013

Restore the Fourth is a grassroots, non-partisan, non-violent movement that seeks to organize and assemble almost 100 protests nationwide on July 4th, 2013.  Restore the Fourth Charlotte is a coalition of with a broad political background who demand that the government of the United States of America adhere to its constitutionally dictated limits and respect the Fourth Amendment. We seek to raise public awareness of the unconstitutional surveillance methods employed by the U.S. government.

Restore the Fourth maintains that justification of the Fourth Amendment beyond the original text need not be given; the legitimacy of which is self-evident. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment of the Bill of Rights clearly protects all citizens’ assets, both digital and physical, against searches and seizures without warrant.  We aim to assert those rights and insist that the proper channels of government work to ensure that all policy complies with the supreme laws of the United States of America in their entirety.

Restore the Fourth requests that American citizens’ right to privacy is respected and stands with the Electronic Frontier Foundation and StopWatching.us on their open letter to Congress. As informed members of the American electorate, they endorse and echo the letter’s demands:

1. Enact reform this Congress to Section 215 of the USA PATRIOT Act, the state secrets privilege, and the FISA Amendments Act to make clear that blanket surveillance of the Internet activity and phone records of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;

2. Create a special committee to investigate, report, and reveal to the public the extent of this domestic spying. This committee should create specific recommendations for legal and regulatory reform to end unconstitutional surveillance;

3. Hold accountable those public officials who are found to be responsible for this unconstitutional surveillance.

This movement intends to bring an end to twelve years of Fourth Amendment abuses and to ensure that all future government surveillance is constitutional, limited, and clearly defined.  On July 4th at 9:00am, Restore the Fourth Charlotte will rally at the corners of Trade and Tryon to demonstrate the need for a return to the principles of the Constitution. We urge you to join us on the most patriotic of days and to help spread awareness of these violations of our Constitution.


CSL Students Hear Supreme Court Oral Arguments During Spring Break

April 11, 2013

This year the Supreme Court oral arguments for the California “Prop 8” case, Hollingsworth v. Perry, and the DOMA case, U.S. v. Windsor, coincided with Charlotte School of Law’s Spring Break.  Caleb Newman, a 2L, and Adria R. Crannell, a 3L, had the rare opportunity to attend the oral arguments in Washington, D.C.

Witnessing History Evolve, Maybe

By: Caleb Newman

Photo Credit: Caleb Newman

Photo Credit: Caleb Newman

Last week, I was one of ten fortunate students from our school to travel to the Supreme Court of the United States to observe oral arguments in Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, the DOMA case. The issues in these two cases have been discussed and belabored by the news media on television and the internet, pastors in the pulpit and during prayer sessions, students in classrooms and symposiums and forums, politicians on the campaign trail and during press conferences, and social activists on television shows and social media websites. But at the end of the day (or, rather more appropriately, at the end of the Court’s term), the Justices will have the final word.

There has been much speculation regarding the anticipated outcome of Prop 8 and DOMA. Will the Justices even reach the merits of Hollingsworth, instead kicking the case on Article III standing grounds? Will the Justices find that the petitioners have Article III standing and find that there is a fundamental right to same-sex marriage? Will the Justices employ a rational basis review, or some sort of heightened scrutiny? Has DOMA met its end?

Photo Credit: Caleb Newman

Photo Credit: Caleb Newman

Listening to the Justice’s questions and the points they were trying to make during oral arguments last week, it was clear how some Justices are likely to stand on some of the issues: Justice Kagan’s reading of the House Committee Report quoting “moral disapproval” of homosexuality; Justice Kennedy’s thoughts on the Prop case being improvidently granted; Justice Ginsburg’s dismissal of the theory that children “do best” with heterosexual parents; Justice Alito’s statement that same-sex marriage and civil unions are “newer than cell phones and the internet;” and Justice Scalia’s assertion that in order to find a law unconstitutional there must be some sort of “start date” for the unconstitutional law.

I am in no position to predict an outcome of these cases nor will I attempt to answer the questions above. However, standing outside of the Court on Tuesday and Wednesday made me realize that there are millions of Americans who have a deep, personal stake in the Court’s outcome. Seeing the hundreds of people waving signs, locking arms, engaging in dialogue, and marching down the street chanting and singing caused me to develop a deeper appreciation and respect for the Court.

Photo Credit: Caleb Newman

Photo Credit: Caleb Newman

I think our founding fathers would have been proud to see the peaceful yet powerful demonstrations on First Street last week. And until the end of June, when the Court is likely to announce its opinion in these two landmark cases, Americans will continue the debate that has raged on for decades. But as one commentator remarked, “The right to same-sex marriage will not be achieved by amicus briefs or court opinions, but rather by time that will pass by allowing Americans to see that this fundamental right is not destructive as some believe.”

Hoping to Witness History

By: Adria R. Crannell

Last Tuesday, I was lucky enough to gain entrance to the Supreme Court during oral arguments for Hollingsworth v. Perry, also known as “Prop 8.” I was spending my spring break in Washington, D.C. for an internship at the National Legal Aid and Defender’s Association and was encouraged to spend the morning at the Court. I heard that people were lined up as early as Saturday afternoon for Tuesday’s arguments, so I feared I would not be able to get in. Walking from the metro stop just before 8am, I could see the line already formed down the block. There was a group offering coffee, bagels, and signs, I grabbed a bagel and a bright yellow sign with three “stick-figure” couples; two men, two women, and one man, one woman. I made pleasant conversation with the folks in line around me, including a man from Utah who helped write one of the amicus briefs for the case, a mother from Michigan whose son just graduated from Cooley Law School, and a lesbian couple, one of whom was attending law school in Rhode Island. A separate line for Wednesday’s arguments on the Defense of Marriage Act (DOMA) had already formed.

Photo Credit: Adria Crannell

Photo Credit: Adria Crannell

As we speculated on the outcomes of the cases, a parade of ministers and congregants came through singing “This Little Light of Mine,” passing out PRIDE flags, and carrying signs encouraging the Court to rule in favor of gay marriage. With the exception of the Westboro Baptist Church, there was nary a dry eye in line. Although there were many clever and powerful signs, my favorite was the one that said “Mawage is what bwings us togeva today,” in a nod to the classic 80’s film, The Princess Bride.

Photo Credit: Adria Crannell

Photo Credit: Adria Crannell

As I was handed a little yellow ticket granting me three minutes of viewing time in the back of the Supreme Court, I was filled with excitement like a child on Christmas morning. I couldn’t believe I was one of the lucky ones. I was positively beaming at having the opportunity to be present, even for a short time, in the Court for what, I hope, turns out to be one of two landmark decisions. My mind was racing, trying to take everything in; I had turned my Facebook newsfeed into Twitter, posting near-constant updates, both so I could share one of lifetime’s greatest privileges with friends and family, and also so I wouldn’t forget anything. Around 10:45 a.m., midway into the day’s two-hour arguments, after going through security, twice, we were led to a small section in the back of the Court, behind red velvet curtains.

Due to the curtains, I was not able to see every Justice and wasn’t always sure who was speaking, but I was able to see Justice Scalia as he repeatedly hounded Theodore Olsen, the attorney challenging Prop 8, with the question of “when did it become unconstitutional to prohibit gay marriage?” The two bantered back and forth with Olsen attempting every maneuver the English language allowed to avoid putting a designation on when, ultimately stating he didn’t know. With that, my time was up and I was escorted out of the back room.

Photo Credit: Adria Crannell

Photo Credit: Adria Crannell

My thoughts still swirling, in awe that I was able to be present for an argument in front of the Supreme Court, to see some of the Justice’s whose words I have spent the last three years reading, to hear the questions and answers that will later become another decision read by future students, to take in as much as possible while trying to apply what we discussed in Constitutional Law just the week before, feeling my law school career boiled down to three minutes in which I hope to have witnessed history.


What’s law got to do with it? For Same-Sex Couples the Question Remains

January 27, 2013

Charlotte School of Law Law Review’s Annual Symposium  (March 15th 9:00 am – 2:00 pm)

This year, the Law Review is presenting speakers from across the political and ideological gamut to discuss the social institution of marriage, and the effects of marriage laws on states and citizens alike.  As the Supreme Court prepares to hear oral arguments on Hollingsworth v. Perry and U.S. v. Windsor (two major cases that challenge both the Defense of Marriage Act (DOMA) and Proposition 8 (a state marriage law), the Law Review seeks to keep local activists, attorneys, and students on par with the theories that fuel these debates.

The morning panel, “I do, You don’t. A Constitutional Debate on Marriage,” will showcase legal, academic, and social scholars presenting unique and wide-ranging theories on the definition of ‘Marriage.’  The debate will mirror the current issues before the Supreme Court, as proponents and opponents of state and federal constitutional amendments are given the opportunity to fully flesh out the issues before an inquisitive audience of students and attorneys.  The panel will respond to questions from the audience and participation is encouraged as this is an issue that affects all members of the public, regardless of orientation or belief.

As the issues from the first panel resonate, speakers, students, staff and attorneys will have the opportunity to meet and greet, and come together in reflection during a catered lunch.

The afternoon panel, “A Straight and Narrow Path: Navigating the Law for LGBT clients,” will be a practice-oriented discussion of how to serve and advocate for LGBT clients within the existing legal framework.   Topics will include ethical issues that lawyers may face, overcoming state constitutional amendments such as North Carolina’s Amendment One when representing clients in family law or wills and trust issues, discrimination issues, and the relatively new and unique issues faced by transgender clients.

With such a hot topic currently being decided by the Supreme Court of the United States, the Law Review strives to have a wide range of public representation at the Symposium.   Regardless of belief, orientation, practice, or opinion, these are issues that affect each and every person, and if every viewpoint could be represented, the conversation would greatly benefit.

“Alone we can do so little; together we can do so much.” —Helen Keller


Free Speech for People Amendment: A Legislative Alternative to the Judicial Decision of Citizens United

October 18, 2012

Do independent expenditures by entities, such as corporations, create corruption or even the appearance of corruption thus diluting the people’s ability to control government?  The majority of the Supreme Court answered the question in the Citizens United v. Federal Election Commission ruling with an emphatic “No.”

What this ruling did, in effect, is give corporations much of the same rights to political speech as individuals.  It means that virtually all restrictions on corporate money in politics have been removed.  In a Slate article, titled The Numbers Don’t Lie, Richard L. Hasen, a leading expert on campaign finance and professor at the University of California at Irvine stated, “after Citizens United, the courts . . . and the FEC [Federal Elections Committee] provided a green light for super PACS to collect unlimited sums from individuals, labor unions, and corporations for unlimited independent spending.  The theory was that, per Citizens United, if independent spending cannot corrupt, then contributions to fund independent spending cannot corrupt either.  . . . So what was once questionable legality before the court’s decision was fully blessed after Citizens United.”

This summer the Supreme Court had an opportunity to take another look at the Citizen’s United ruling and declined.  The Montana Supreme Court upheld the state’s 1912 Corrupt Practices Act limiting independent political spending by corporations.  In a 5-4 ruling the U.S. Supreme Court voted to summarily dismiss the Montana case without oral arguments.

Montana’s Attorney General, Steven Bullock, argued that overturning the Corrupt Practices Act would “make our political process unrecognizable.”  He provided instances of not just the appearance of corruption, but actual corruption caused by this type of spending in the case.  Montana’s Supreme Court held in Tradition Partnership v. Bullock that the ban on such funding in Montana state elections was constitutional.  The U.S. Supreme Court’s 5-4 decision to not hear the case, unfortunately, proffered no rebuttal to the facts presented by Mr. Bullock and appears to have shut out the possibility of Citizens United being overturned by the current Supreme Court.

Is there anything we can do to change this unfortunate precedent? Well, yes, there is a grass roots movement to support a constitutional amendment!  The amendment, banning independent expenditures by special interest groups, has already been introduced in Congress.   Free Speech for People is helping organize efforts amongst concerned citizens to stir municipalities and other local governmental entities to call for Congress and states to act.  Their site provides an opportunity to sign a petition supporting H.J. Res. 88, a bi-partisan Congressional resolution that will amend the Constitution and overturn the Citizens United ruling.  The organization also provides resources to help you promote this amendment in your local and state governments.

The amendment process will eventually require ratification by2/3rds of the states and this grassroots effort helps to inform the electorate of the Amendment and gives representatives notification of what the People want.  According to a survey of 1,000 likely voters, 62 percent of all voters oppose the Supreme Court’s Citizens United decision.  In a poll conducted by Free Speech for People 82 percent of independent voters, 68 percent of Republican voters, and 87 percent of Democratic voters support the amendment.  This isn’t a political issue, this is voter’s rights issue, as Citizens United has allowed special interests to supplant the power of our founding principle of “one man, one vote” with the idea of “more money, more influence.”

For further reading, Corporations Are Not People, by Jeffrey D. Clements, and Republic Lost, by Lawrence Lessig, provide a thorough overview of the problem and its effect on our country. Also, the nationally-recognized expert in election law and campaign finance regulation, Professor Richard Hasen, will be joining the American Constitution Society for an event on Monday, October 22nd at noon.  Professor Hasen will be joining us via Skype and UNC Charlotte Professor of Political Science, Martha Kropf, will be on campus.

The time to act is now.  If you are interested in becoming part of this movement, please email Brandy Hagler, haglerb@students.charlottelaw.edu, or Cleat Walters III, waltersc@students.charlottelaw.edu for more information.

By Cleat Walters III and Brandy Hagler


Occupy Charlotte Asks the Court to Prevent Enforcement of the Camping Ban

February 27, 2012

On Friday January 24, Judge Forrest Bridges heard Occupy Charlotte’s motion for a temporary restraining order seeking  to enjoin the city’s enforcement of the anti-camping provision of Chapter 15, Section 15-26 — one of the so-called “DNC Ordinances.”  Ken Davies argued on behalf of Occupy Charlotte while City Attorney Bob Hagemann along with Charlotte-Mecklenburg Police Attorney Mark Newbold represented the City of Charlotte.

Davies opened by pointing out that the Ordinance unconstitutionally infringes on the rights of free speech and assembly under the North Carolina Constitution and effectively eradicated symbolic protest on a site traditionally recognized as a public forum. Davies asserted the City passed and selectively enforced the anti-camping ordinance in order to quash Occupy Charlotte’s political speech. Occupy Charlotte then fleshed out both procedural and substantive arguments to support their requested relief.

Procedural Argument

Davies argued that the process city council followed to enact the Ordinance was “fundamentally flawed.” Specifically, the City allowed one public comment period regarding the Ordinance then made substantial changes to the Ordinance. After it made these changes, City Council prohibited anyone opposed to the Ordinance from speaking at their meeting, while several police officials were permitted to speak at great length in support.  Clinic member Isaac Sturgill was instrumental in developing and researching this theory.  Included below is a link to the Memo in Support of Procedural Claims which makes for an interesting read concerning how the government may restrict free speech in various types of arenas.

In reply, the City argued that there is no constitutional right to address City Council and that there is no legal requirement to hold a public comment period on police power ordinances such as these. Mr. Hagemann further stated that it is “preposterous” to argue that every time a city official is allowed to speak on an issue that those on the other side should be allowed to speak as well. Even if the procedure was flawed, the City contends that it does not provide valid grounds to invalidate the Ordinance.

Substantive Argument

Davies contends, and case law supports, that tents are a form of symbolic speech and therefore may only be restricted if the regulation is supported by a compelling government interest. This is the strictest form of scrutiny under constitutional law. The City believes that it has several compelling interests in restricting Occupy Charlotte’s right to speak including aesthetics, preservation of a public space, public health, and preventing exclusion of other members of the public from a public space.

Addressing the first and second alleged interests, Davies posed the rhetorical question of whether we are willing to allow free speech to be trumped by aesthetics. The City responded by identifying the brown patches in the lawn resulting from Occupy Charlotte’s prolonged presence on the site.

Regarding public health, the City contended that Occupy Charlotte members were using a storm drain as a toilet. In response Davies pointed out that the City’s own testing was inconclusive. Davies went on to note that Occupy Charlotte had tried months earlier to obtain portable toilets for use near the demonstration site. By frustrating these efforts, Davies said, the City “has done everything possible to make this as uncomfortable as possible” for the Occupiers.

Finally, the City argued that Occupy Charlotte should not be allowed to camp on the Old City Hall Lawn because it would exclude others from using public property. The City introduced no evidence to support this and the court did not explore this issue in great detail. However, Clinic members learned through their work that Occupy Charlotte never excluded anyone from the property.

In conclusion, Davies drew the court’s attention to North Carolina’s Constitution itself. The North Carolina Constitution provides higher protection for free speech than even the Constitution of the United States. Article I, Section 14 of the North Carolina Constitution powerfully reads “freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained.” In fact, so greatly did North Carolina value these rights, it refused to ratify the US Constitution until a Bill of Rights was added. In Ken Davies words, the Occupiers are “true patriots trying to affect their government.” Their right to speak should not be restrained lightly.

Judge Bridges decided to take the weekend to consider the motion.

We’ll update you with the court’s decision and more documents as they become available. Here are the documents that are currently available, several of which were entirely or partially prepared by Clinic members:

Take a look at the WCNC article and the Charlotte Observer article for more information.

Tell Us What You Think: Do the government interests the City has asserted justify the restrictions placed on Occupy Charlotte and free speech?

– By: Evan Carney


May North Carolina Disqualify Officeholders Who Deny the Existence of God?

February 23, 2012

Recently, there has been a lot of talk about President Obama’s alleged “assault on religious liberty” for requiring employers’ health insurance providers to cover birth control for women.  The opposition claims that the government is unconstitutionally intruding on their religious liberty while the President asserts he is requiring that men and women be treated equally in respect to health insurance benefits.  The discussion does raise the question of where the line dividing separation of church and state should be drawn.  But what about when the government asserts that it has the power to remove public officials  from office because they choose not to believe in the existence of “God?”

In January, the Clinic was presented with a question about a section of the North Carolina Constitution that disqualifies certain people from holding office, whether elected or appointed.  Article VI, Section 8 of the North Carolina Constitution requires that “the following persons shall be disqualified for office: . . . [A]ny person who shall deny the being of Almighty God.”

On its face, North Carolina’s disqualification directly violates the United States Constitution’s First Amendment Establishment and Free Exercise Clauses and Article VI, Clause 4 that prohibits religious tests for officeholders. After all, freedom of religion encompasses not only the right to practice the religion of your choosing, but also the right not to practice any religion at all.

In researching this project, Clinic student Jordan Dupuis found that Pennsylvania, Arkansas, South Carolina, Maryland, Texas and Tennessee had similar provisions to North Carolina’s. In 1961, the United States Supreme Court held in Torcaso v. Watkins, 367 U.S. 488 (1961), that Maryland’s bar against nonbelievers was a violation of the First and Fourteenth Amendments.  In 1997, South Carolina’s Supreme Court ruled in Silverman v. Campbell, 486 S.E.2d 1 (S.C. 1997), that South Carolina’s disqualification provision was unconstitutional, citing  Torcaso.

In his research, Jordan determined that North Carolina has not recently applied the nonbeliever disqualification, if ever having applied it at all.   And in 1970, the North Carolina Legislature tried to remove the section by amendment, but was unable to do so due to lack of support.

Because of Torcaso, North Carolina’s disqualification of nonbelievers has been likely rendered ineffective.  While this may be the case, the best route to remedy the unconstitutional prohibition would be to strike the provision by either amending North Carolina’s constitution or challenging the nonbeliever disqualification in court.  If you have any information about a government attempt to enforce this disqualification please contact Jordan Dupuis at dupuisj@students.charlottelaw.edu.

Make your opinion known in our poll below. Feel free to elaborate in the comments section.


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