It has been a while since surveillance graced these pages, but it is not a new subject. I invoked Rockwell in Assume Everyone is Watching (2015). Cameras played a role in Judicial Bullying in the News (2018). And, shortly thereafter, The Evolving Issue of Body Cameras (2018). Then, amid our great pandemic, then 17-year-old Darnella Frazier became the Abraham Zapruder of her generation. Her video of George Floyd has been viewed more times even than the Baby Shark Dance (because it does not get viewed on the news).
Cameras are everywhere today. I have come to expect privacy nowhere. I assume I am on camera, being recorded, at all times. Rockwell has been rattling around in my brain since 1984 "Why do I always feel like I'm in the Twilight Zone" and "I always feel like somebody's watchin' me."
Florida's Fourth District Court of Appeal rendered an interesting decision recently in the case of Ford v. City of Boynton Beach, No. 4D19-3664. It is a fascinating read regarding our privacy, cameras, and more.
This is a civil case but with criminal law undertones. Essentially, a teenager was detained for trespass at a theater. He allegedly snuck into the movie without paying (I knew some people who did this in their youth; one had a "Chrysler, as big as a whale" and he used to smuggle people into the drive-in in the trunk). Initially, the officers did not arrest the teen but called his mother instead. In retrospect, it seems that the movie-sneaking teen in this case might have avoided arrest altogether. Police who are eager to arrest will rarely call a parent first.
The situation in this litigation began when the teen's mother responded to the police call; she went to the theater. The teenager and the police "were (then) on a public sidewalk directly across the street from the movie theater entrance." The mother approached on foot "with her cell phone on record." A police officer told her to stop recording. She was then asked for identification. And, "she ignored their requests (to stop recording) and continued to video and audio record." I have always found it best to comply with police officer requests even when I knew they were wrong. Remember the Clash? "I fought the law and the law won."
The officers then proceeded to arrest the teenager. They "informed the mother that she needed their permission to record them." At some point, the officers asked if she was still recording and she "falsely" denied it. This recording also included recording a citizen who interrupted the officers with a conversation. There were "numerous requests to the plaintiff to stop recording . . . which she ignored." She was, in her words, “a mother and a concerned parent” and “[was] just asking questions” when she was then arrested for "intercepting oral communications and obstruction without violence." The State Attorney later elected not to file charges against her.
She then elected to file a civil case "against the City and the officers for false arrest, declaratory relief, and for violating her civil rights." A federal judge dismissed the civil rights claims, and the case proceeded in state court thereafter. The Florida trial court dismissed the lawsuit, concluding that "the recorded parties had a subjective and reasonable expectation of privacy in their communications." Thus, the arrest pursuant to the "wiretapping statute" was appropriate. That she lied about recording was also mentioned.
The case then proceeded to the Fourth District Court of Appeals, and this decision. The Court affirmed the dismissal, but not unanimously. The Court explained that "obstruction" does not require physical interaction. If a police officer is in the "lawful execution of a legal duty" and someone does something that "constituted obstruction or resistance of that legal duty" then the charge may lie. The mother's protestations that she could not be charged because her actions in "no way physically obstructed or impeded" the officer(s) were not successful.
The Court was critical of the plaintiff. It noted that the police had detained her son and rather than arresting him they contacted his mother. Instead of "a short, uneventful exchange," the court concluded she instead took an "approach to the officers . . . designed to impede." The Court seemed critical that she was "confrontational and . . .recording the officers," seemingly escalating rather than calming the situation. The court concluded that "the plaintiff consistently and persistently failed to comply with the officers’ direction and requests." Remember Cougar, "I fight authority, authority always wins."
The Court also noted that "the trial court reviewed the video in its entirety and found probable cause for the plaintiff’s arrest." Notably, the appellate court likewise reviewed the video. That is not unprecedented, see Who Ya Gonna Believe (2018). Not only does video afford an appellate court credibility determination opportunities, it is possible for a video to become part of the digital record of a court decision. It is practical to expect that appellate viewing of recordings will increase. In an age of Zoom trials, will appellate courts become more involved in credibility determinations on appeal?
Two appellate judges thus affirmed the dismissal of the lawsuit. Some perceive the case outcome as a social justice issue. See The Tampa Times and New York Daily News. Other headlines also suggest that implication, but their stories are behind paywalls.
The third judge on the court panel dissented. This judge concluded instead that the "officers had no reasonable subjective expectation of privacy" at that time. As such, there was no "probable cause to arrest (the mother/plaintiff) for violating the wiretap statute." The third judge found the absence of her "physically obstruct(ing) to be relevant and persuasive in concluding there was insufficient "probable cause to arrest her for obstruction."
The third judge "conclude(d) that the officers could not have had a reasonable subjective expectation of privacy." The judge explained that a "speaker must have an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable.” citation omitted.
The speaker must somehow have "shown that ‘he seeks to preserve [something] as private.’” They must make efforts or take "precautions to keep the conversation private” (something apparently beyond telling someone that they cannot record you). The third judge "would hold that a law enforcement officer has no reasonable subjective expectation of privacy in conversations he (or she) has with the public or the arrestee in the performance of the officer’s duties in public places."
The third judge invoked George Floyd and "the individual who recorded George Floyd" last summer. The judge noted that "in Florida, he would have been guilty of a crime." Side note, the individual who made that famous video is a "she," and a brave, young, she at that. The judge then conceded that some police interactions may be, by necessity, "non-public." However, this situation was not in that category. The opinion seems to suggest a default of no privacy expectation, subject to some specific pursuit of privacy beyond "stop that," with esoteric suggestions that some such requests should be honored (when, where, which?).
Several years ago, another person took a video of a traffic stop. She was arrested and later sued the police "alleging that her arrest amounted to 'retaliatory prosecution in breach of her constitutional rights.'” The police in that case paid a settlement in excess of $50,000. That was not in Florida. Might one be encouraged by such an outcome? Or, by the potential that such a video could be one's ticket to the promised "fifteen minutes," referenced by Warhol?
The issue, one might conclude, is less than clear in Florida. Can you video a police officer (or anyone else for that matter) without the person's consent? If an officer on a sidewalk has an expectation of privacy, could we say the same for any of us speaking on a sidewalk? As municipalities, companies, and individuals continue to hang cameras on seemingly every pole and post, is it ever "reasonable" for any of us to believe we have privacy? May we, can we, ask that these cameras stop recording us?
I recently posted in Cybersecurity, WCI 2021, the Pillory, and More regarding the seemingly endless battle between smokers and non-smokers in our society. The point of that discussion is that our rights often collide with the rights of others. There is much discussion of one person's right to document (the mom) and the privacy rights of others. This is not new. Our rights have been creating friction with others since America's inception. The government steps into those relationships and its intervention ("state action" can be perceived as taking sides (Florida State University's "no smoking" could be viewed, right or wrong, as endorsing the rights of non-smokers over those of smokers).
As cameras proliferate, our privacy will inexorably diminish. Do I have a right to be free from being recorded? Are my rights different than a police officer in this regard? If I stand on the roadside at a distance and video a police officer, am I likely to be arrested? Do I have a duty to obtain releases from those who wander through my scope of vision as I video the gulls over the bay? Does it come down to my intent when I capture someone on video? It seems likely that there will be more discussion of the privacy issue in years to come as the population grows, technology evolves, and society changes. Change is a constant, and our society is challenging.
If you had told me in the 1970s that smoking would be banned on a college campus I would have laughed. If you had told me surveillance cameras would watch my every move, I would have laughed. If you had told me that bad police officers would be held responsible, I would have laughed. If you had told me a pandemic would cripple America and the world, I would have laughed. Who knows what our future will bring? how will our individual privacy and the proliferation of technology evolve?
