This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!
Robbins v. City of Des Moines, 2021 WL 28091 (8th Cir. 2021)
An officer walking to his car after leaving the police station saw Daniel Robbins video recording vehicles near the police station, as well as officers and other employees entering and leaving. The officer approached Robbins to question him. At the same time, two other officers also approached Robbins. All three officers were aware of the murder of two police officers committed by a suspect who had stalked and video recorded the victim officers. They also knew there had been vehicle burglaries in the parking areas around the police department.
The officers frisked Robbins and demanded an explanation of his activities. He declined to give his name. They told Robbins to leave, and when he refused, the officers told him he was loitering and would be arrested if he did not identify himself.
Robbins asked, “Do I have an arrest?” An officer responded affirmatively. Robbins then asked, “Am I detained at this point?” and the officer responded, “Yes, you are now at this point.” Robbins then initially identified himself as “John Doe,” and subsequently gave his true name under protest. The officers seized Robbins’s cell phone and camera. An officer photographed Robbins, then told him he was free to go. The encounter lasted approximately 12 minutes.
Twelve days later, after a demand by Robbins’s attorney, police returned the cell phone and camera to Robbins. He sued the officers, alleging unlawful detention, unlawful search, unlawful seizure of his property and interference with his First Amendment activity of recording the police. The trial court granted summary judgment to the officers. Robbins appealed.
The appellate court held the officers were entitled to qualified immunity because Robbins did not show a deprivation of a clearly established right. Although the public has a general right to observe and record police, that right is not unlimited. The right to record police may be subject to “reasonable time, place, and manner restrictions.” In addition to the officers’ knowledge of recent criminal activity involving cars parked in the area, they were also aware of a previous filming and stalking incident that ended in the murder of two officers. Moreover, Robbins was non-responsive, evasive and confrontational when questioned by the officers. The court held that, in light of the circumstances known to the officers, their actions in questioning Robbins about his video recording were not objectively unreasonable under clearly established law.
The court also held the officers had at least an arguable reasonable suspicion for an investigative detention, again based on what they knew at the time of the stop. However, the appellate court reversed the trial court ruling on the claim of false arrest. The court opined that a reasonable officer would not have believed he had probable cause to arrest Robbins for loitering because he was not blocking the sidewalk or impeding activity at the police station. Finally, the court held the duration of the seizure of Robbins’s cell phone and camera was unreasonable. Moreover, the officers did not tell Robbins how to get his property back: “The defendant officers violated Robbins’s clearly established right to be free of unreasonable seizures of his property and are not entitled to qualified immunity.”
Several federal circuit courts of appeal have upheld the right to record police carrying out their official duties in public. Courts typically limit the right when the recording interferes with police action, such as standing too near or tampering with a witness or suspect, inciting others to violate the law, being so close to the activity as to present a clear safety hazard to the officers, etc. Even in two-party consent states, courts have generally rejected arguments that non-consensual recording of officers constitutes illegal wiretapping. Lexipol’s Public Recording of Law Enforcement Activity Policy provides comprehensive guidance to help officers stay in the constitutional safety zone when dealing with persons recording police.
NEXT: How police should respond to a ‘First Amendment audit’
