SHERIFF'S CORNER: 'Don't tell me I can't film in public, cop-er!!"

So, what are these "audits?" 

In this edition of the "Sheriff's Corner," I discuss "First Amendment Audits," what the law says and the history behind it.

HISTORY

This mainly started in 1991. A man by the name of George Holliday happened to have a video camera with him when he decided to record an unarmed suspect being beaten by the Los Angeles Police Department. That man was Rodney King. The video captured by Holliday has been seen millions of times and started what is now known as "cop watching" or "auditing."

Today, nearly every person has a video camera at all times in the form of a mobile phone. After high-profile police encounters in New York, Baltimore and Ferguson, Missouri, citizens are filming encounters between police and suspects. In this context, the federal courts have been highly protective of the rights of citizens to film police officers in public places.  

This is not just limited to "police encounters," but to other government officials, employees and buildings. Auditors typically travel to a place that is considered public property, public right-of-way, or a place open to the public, such as a post office or government building, and visibly and openly photograph and record buildings and persons in their view.

What most people may not know is that almost anything in view of the public, is not protected and can be recorded. There is no presumption of privacy in most public buildings or a government building or a place that is accessible to the public. This can be the same for a public sidewalk or road easements. For example, filming through a private business window from a public sidewalk in most cases is permissible.

THE FIRST AMENDMENT AND CASE LAW

It was adopted Dec. 15, 1791, as one of the 10 amendments that constitute the Bill of Rights. This is how it is officially stated in the Constitution:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices. It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government.   

The first case law that was established in 2011 under Glik v. Cunniffe held that a private citizen has the right to record video and audio of police carrying out their duties in a public place.

This is also codified by a 2017 case law decision of Fields v. City of Philadelphia, which clearly establishes that video recording of police encounters is a form of speech protected by the First Amendment. It further affirms that "right to record — photograph, film, or audio record — police officers conducting official police activity in public areas."

THE CAMERA PHONE

So, why is this all happening now? Blame it on your smartphone with the camera. I remember when I first got my Blackberry phone and it had a camera. That was cool, but who would have thought it would have achieved the level it has?

The first cell phone with a built-in camera was from Samsung. It was initially released in South Korea in June of 2000. Essentially, the camera and the phone components were separate devices sharing one body. To access the photos, the phone had to be hooked up to a computer. Additionally, it was only capable of taking 20 photos at a 0.35 megapixel resolution.

In November of the same year, Sharp produced and released what they argue is the first real camera phone in Japan.  It could take photos at 0.11 megapixels and it allows the user to send their photos electronically.

Just to provide a comparison, the iPhone 6 is 32,600 times faster than the best Apollo era computers of the 60s and could perform instructions 120,000,000 times faster. 

THE OPEN MEETINGS ACT

Due to recent controversy with several township meetings, I felt the need to relate this topic to how it pertains to these meetings.  Act 267 of 1976, the Michigan Opens Meeting Act, establishes rules for meetings of local public bodies to be open to the public. 

Let's first establish some definitions. 

15.262 states:

"(a) "Public body" means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function; a lessee of such a body performing an essential public purpose and function pursuant to the lease agreement; ..."

(b) "Meeting" means the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy..."

15.263 states: 

 (1) All meetings of a public body must be open to the public and must be held in a place available to the general public. All persons must be permitted to attend any meeting except as otherwise provided in this act. The right of a person to attend a meeting of a public body includes the right to tape-record, to videotape, to broadcast live on radio, and to telecast live on television the proceedings of a public body at a public meeting. The exercise of this right does not depend on the prior approval of the public body. However, a public body may establish reasonable rules and regulations in order to minimize the possibility of disrupting the meeting.

In short, any member of the public is allowed to attend any public meeting and also has the right to record that meeting. But can somebody be removed?

15.263 further states:

 (6) A person must not be excluded from a meeting otherwise open to the public except for a breach of the peace actually committed at the meeting.

So, what is a breach of the peace?

MCL 750.170 states:

"Disturbance of lawful meetings — Any person who shall make or excite any disturbance or contention in any tavern, store or grocery, manufacturing establishment or any other business place or in any street, lane, alley, highway, public building, grounds or park, or at any election or other public meeting where citizens are peaceably and lawfully assembled, shall be guilty of a misdemeanor."

However, this can somewhat be ambiguous since the terms "disturbance" or "contention" are not clearly defined in the statute. It would be reasonable to believe that someone committing an unlawful act, or showing the intent to become physically hostile, threatening or otherwise in the process or have committed an assault and/or battery would clearly fall under this definition. A loud voice or being argumentative would probably not fall under a breach of the peace. An elected official could not generally ask someone to leave, however they could close the meeting if it was unruly or beyond control.

CAMERAS IN MODERN TIMES

On average it’s estimated that most people are caught on camera 25-70 times every day, depending where you live. This may not be the norm for living in woods or staying at your cabin, but there are cameras around that you might not even think about. Many times security cameras go unnoticed, but they’re everywhere. It’s estimated that there are more than 60 million security cameras across the United States.

As stated above, we generally do not have a right to privacy while in public places. Outside on the street is generally considered a public place, so there is no issue about invading someone's privacy here under normal circumstances. However, if a camera points somewhere private (e.g., into someone's bedroom window) then there may be a privacy concern. While the camera is situated outside, it cannot generally be oriented in a manner intended to invade an area where someone has a reasonable expectation of privacy. That is especially true if the camera has enhanced capabilities that allow it to see through obstructions or in the dark.

One can also not generally use a handheld or portable camera outside to do things like look up women's skirts, peer through windows, or otherwise go from a public area into an area where one would expect privacy.

— This information is provided to you for clarification on specific laws, and not legal advice. This is not to be construed as a personal opinion, agreement or disagreement of any specific law. Topics covered are for educational and informational purposes only. As needed, excerpts from other articles are used for reference and/or content. If you have any questions on any specific topic, you may always email me your questions to rmartin@co.lake.mi.us.