Amicus Curiae Brief — James P. Crocker, Petitioner v. Steven Eric Beatty, Deputy Sheriff, Martin County, Florida

No. 21-786

In The

Supreme Court of the United States

JAMES P. CROCKER,

v.

Petitioner,

STEVEN ERIC BEATTY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

MOTION OF THE RUTHERFORD INSTITUTE

FOR LEAVE TO FILE AN AMICUS BRIEF AND

AMICUS CURIAE BRIEF IN SUPPORT OF

THE PETITIONER

John W. Whitehead

Counsel of Record

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

legal@rutherford.org

Counsel for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

No. 21-786

In The

Supreme Court of the United States

JAMES P. CROCKER,

Petitioner,

v.

STEVEN ERIC BEATTY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

MOTION FOR LEAVE TO FILE AMICUS

CURIAE BRIEF OF

THE RUTHERFORD INSTITUTE

IN SUPPORT OF PETITIONER

Pursuant to Rule 37.2(b), The Rutherford

Institute respectfully moves for leave to file the

accompanying amicus curiae brief in support of the

Petitioner. The Petitioner has consented to the filing

of this brief, but the Respondent has withheld

consent.

The Rutherford Institute is an international

nonprofit civil liberties organization headquartered

in Charlottesville, Virginia. One of the purposes of

the Institute is to advance the preservation of the

most basic freedoms our nation affords its citizens –

in this case, the First Amendment right of

individuals to photograph and videotape law

ii

enforcement personnel in public places without fear

of reprisal. Accordingly, attorneys affiliated with the

Institute have filed amicus curiae briefs in this

Court and federal courts of appeal on numerous

occasions over the Institute’s history, including on

the issues raised in the Petition.

For example, attorneys for the Institute filed

an amicus brief in Fields v. City of Philadelphia, 862

F.3d 353 (3d Cir. 2017), in which the Third Circuit

held that bystanders have a right to record police

officers. The court noted the “excellent briefing on

appeal, including counsel for the parties and eight

amici.” Id. at 358. Likewise, Amicus Curiae filed an

amicus brief in Frasier v. Evans, 992 F.3d 1003,

1020 n.4 (10th Cir. 2021) (“We . . . thank amici for

their helpful briefing on the issue of whether the

right exists.”).

The Rutherford Institute requests the

opportunity to present an amicus curiae brief in this

case because the Institute is keenly interested in the

protection of individuals’ civil liberties from

infringement by the government.

The issue

presented in this case—whether a police officer has

qualified immunity to seize a citizen’s cell phone to

stop a recording of the officer’s actions—implicates

significant First Amendment protections.

The

Rutherford Institute brings a particularized analysis

to the issues presented in this case, and its

experience in these matters might assist the Court

in reaching a just resolution.

Wherefore,

The

Rutherford

Institute

respectfully requests that this motion for leave to file

the accompanying amicus curiae brief be granted.

iii

December 29, 2021

Respectfully submitted,

John W. Whitehead

Counsel of Record

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, Virginia 22911

(434) 978-3888

legal@rutherford.org

Counsel for Amicus Curiae

iv

TABLE OF CONTENTS

MOTION ...................................................................... i

TABLE OF AUTHORITIES ...................................... v

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT .............................................................. 3

1. Photographing and Videotaping Law

Enforcement Personnel in Public Is A First

Amendment Right Which Should Be Formally

Acknowledged by This Court and Preclude

Qualified Immunity for Officers Who Prevent

Citizens from Recording Police

Activity………..…………………………………...3

2. The Emergence of Citizen-Journalists and the

Key Role They Play Demonstrates the

Necessity of the Enshrinement of a First

Amendment Right to Photograph and

Videotape Law Enforcement Personnel in

Public Fora………………………………………..9

CONCLUSION ......................................................... 15

v

TABLE OF AUTHORITIES

Cases

Adkins v. Limtiaco,

537 F. App’x 721 (9th Cir. 2013) ............................ 4

American Civil Liberties Union of Illinois v.

Alvarez,

679 F.3d 583 (7th Cir. 2012) ............................... 6, 7

Branzburg v. Hayes,

408 U.S. 665 (1972) ........................................... 3, 12

Citizens United v. Federal Election Commission,

558 U.S. 310 (2010) ............................................... 12

City of Houston v. Hill,

482 U.S. 451 (1987) ......................................... 5, 8, 9

Crocker v. Beatty,

995 F.3d 1232 (11th Cir. 2021) ......................... 2, 14

Elrod v. Burns,

427 U.S. 347 (1976) ................................................. 4

Federal Communications Commission v. CBS

Corp.,

567 U.S. 953 (2012) ............................................... 10

Fields v. City of Philadelphia,

862 F.3d 353 (3d Cir. 2017) .......................... 4, 7, 14

Garcia v. Montgomery County,

145 F. Supp. 3d 492 (D. Md. 2015) ....................... 13

Glik v. Cunniffe,

655 F.3d 78 (1st Cir. 2011) ..................... 4, 5, 12, 13

vi

McCullen v. Coakley,

573 U.S. 464 (2014) ................................................. 3

Mills v. Alabama,

384 U.S. 214 (1966) ................................................. 5

Obsidian Finance Group, LLC v. Cox,

740 F.3d 1284 (9th Cir. 2014) ............................... 12

Smith v. City of Cumming,

212 F.3d 1332 (11th Cir. 2000) ..................... 2, 5, 14

Snyder v. Phelps,

562 U.S. 443 (2011) ................................................. 4

Other Authorities

Charles E. Jones, The Political Repression of the

Black Panther Party 1966–1971: The Case of

the Oakland Bay Area,

18 J. Black Stud. 415 (1988) ................................... 4

J. David Goodman & Al Baker, New York Officer

Facing No Charges in Chokehold Case,

N.Y. Times, Dec. 4, 2014....................................... 10

Jocelyn Simonson, Beyond Body Cameras:

Defending a Robust Right to Record the Police,

104 Geo. L.J. 1559 (2016) ..................................... 11

Josh Sanburn, The Witness,

Time, http://time.com/ramsey-orta-ericgarner-video/ ......................................................... 13

L. Song Richardson, Police Efficiency and the

Fourth Amendment,

87 Ind. L.J. 1143 (2012) ........................................ 10

vii

Larry Buchanan et al., Black Lives Matter May

Be the Largest Movement in U.S. History,

N.Y. Times (July 3, 2020) ..................................... 11

Seth F. Kreimer, Pervasive Image Capture and

the First Amendment: Memory, Discourse,

and the Right to Record,

159 U. Penn. L. Rev. 335 (2011) ............3, 7, 8, 9, 14

Tony Norman, Video for Once Allows Police No

Excuses,

Pittsburgh Post-Gazette, Apr. 10, 2015 ............... 11

1

INTEREST OF AMICUS CURIAE1

The Rutherford Institute is an international

nonprofit

organization

headquartered

in

Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute

provides legal assistance at no charge to individuals

whose constitutional rights have been threatened or

violated and educates the public about constitutional

and human rights issues affecting their freedoms.

The Rutherford Institute works tirelessly to resist

tyranny and threats to freedom by seeking to ensure

that the government abides by the rule of law and is

held accountable when it infringes on the rights

guaranteed to persons by the Constitution and the

laws of the United States.

SUMMARY OF THE ARGUMENT

This Petition comes before the Court on a

matter that raises significant constitutional and

public concern – whether individuals may

photograph or videotape law enforcement personnel

1 The Petitioner has consented to the filing of this

amicus brief, but the Respondent has withheld

consent after receiving timely notice of the intent to

file this amicus brief more than 10 days prior to

filing in accordance with Rule 37.2(a). No counsel

for a party authored this brief in whole or in part,

and no party or counsel for a party made a monetary

contribution intended to fund the preparation or

submission of this brief. No person or entity other

than Amicus Curiae, its members, or its counsel

made a monetary contribution to this brief’s

preparation or submission.

2

in public places. As an initial matter, Amicus Curiae

agrees with Petitioner that such a right was wellestablished at the time of the conduct at issue in this

case. See Smith v. City of Cumming, 212 F.3d 1332,

1333 (11th Cir. 2000) (finding a First Amendment

right to photograph or videotape police conduct);

Crocker v. Beatty, 995 F.3d 1232, 1260 (11th Cir.

2021) (Martin, J., concurring in part and dissenting

in part) (“read[ing] Smith to clearly establish a

general rule that the First Amendment protects a

person’s right to record police conduct”).

Amicus Curiae writes separately to request

that the Court take this opportunity to rule

definitively that photographing or videotaping law

enforcement personnel in public places is protected

by the First Amendment. Not only is the right to

photograph and videotape law enforcement activities

and personnel in public places an established First

Amendment right, but the right is essential to

protect the citizen-press, which plays an everincreasingly important role in the dissemination of

information. See id. at 1261 (Martin, J., concurring

in part and dissenting in part) (“The right to record

police activity is important not only as a form of

expression, but also as a practical check on police

power. Recordings of police misconduct have played

a vital role in the national conversation about

criminal

justice

for

decades”).

Because

photographing and videotaping law enforcement

personnel might be unpopular with the subjects,

citizens, like the Petitioner in this case, run the risk

of retaliation, including arrest and incarceration, for

engaging in these activities.

Absent a formal

holding from this Court that there is a robust First

Amendment right to photograph or videotape law

3

enforcement personnel and activities in public

places, citizens run the risk of self-censoring, law

enforcement

personnel

run

the

risk

of

misunderstanding citizens’ constitutional rights, and

lower courts run the risk of misapplying qualified

immunity and undermining the First Amendment’s

protections.

ARGUMENT

1.

Photographing and Videotaping Law

Enforcement Personnel in Public Is A

First Amendment Right Which Should Be

Formally Acknowledged by This Court

and Preclude Qualified Immunity for

Officers Who Prevent Citizens from

Recording Police Activity

In Branzburg v. Hayes, this Court noted that

“without some protection for seeking out the news,

freedom of the press could be eviscerated.” 408 U.S.

665, 681 (1972). Professor Kreimer explains that

“[i]mage capture can document activities that are

proper subjects of public deliberation but which the

protagonists would prefer to keep hidden and

deniable.”

Seth F. Kreimer, Pervasive Image

Capture and the First Amendment:

Memory,

Discourse, and the Right to Record, 159 U. Penn. L.

Rev. 335, 345 (2011). Police regularly operate on

public streets and sidewalks, which “are areas that

have historically been open to the public for speech

activities.” McCullen v. Coakley, 573 U.S. 464, 476

(2014).

Moreover, the conduct of police, as

government officials, is a matter of public concern,

and speech regarding matters of public concern is, as

this Court has repeatedly reiterated, including in

4

Snyder v. Phelps, 562 U.S. 443, 451-52 (2011), at the

heart of the First Amendment. Such a “loss of First

Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373 (1976).

The recording of citizen interactions with law

enforcement is hardly a new phenomenon. See

Charles E. Jones, The Political Repression of the

Black Panther Party 1966–1971: The Case of the

Oakland Bay Area, 18 J. Black Stud. 415, 417 (1988)

(reporting on the “Panther Police Patrol,” which

deployed tape recorders and cameras to document

police stops). See also Fields v. City of Philadelphia,

862 F.3d 353, 355 (3d Cir. 2017) (“In 1991 George

Holliday recorded video of the Los Angeles Police

Department officers beating Rodney King and

submitted it to the local news. Filming police on the

job was rare then but common now. With advances

in technology and the widespread ownership of

smartphones, ‘civilian recording of police officers is

ubiquitous.’” (citation omitted)).

Accordingly, it is no surprise that several

federal courts of appeals have found a constitutional

right to videotape and photograph law enforcement

personnel when they conduct operations in public.

For example, the Ninth Circuit has held that an

individual’s “First Amendment rights were clearly

established at the time of his arrest” when

photographing police actions. Adkins v. Limtiaco,

537 F. App’x 721, 722 (9th Cir. 2013). The First

Circuit framed the question directly by asking “is

there a constitutionally protected right to videotape

police carrying out their duties in public?” Glik v.

5

Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011).

answering that question, the court held that

In

[b]asic First Amendment principles,

along with case law from this and other

circuits,

answer

that

question

unambiguously in the affirmative.

....

. . . Gathering information about

government officials in a form that can

readily be disseminated to others serves

a cardinal First Amendment interest in

protecting and promoting “the free

discussion of governmental affairs.”

Id. (quoting Mills v. Alabama, 384 U.S. 214, 216

(1966)). In so ruling, the First Circuit applied the

following logic: if police officers must accept “a

significant amount of verbal criticism and challenge

directed at” them, then they must be expected to

exercise similar restraint “when they are merely the

subject of videotaping that memorializes, without

impairing, their work in public spaces.” Id. at 84

(quoting in part City of Houston v. Hill, 482 U.S.

451, 461 (1987)). Likewise, the Eleventh Circuit had

previously held that citizens have a First

Amendment right to photograph or videotape the

police because “the First Amendment protects the

right to gather information about what public

officials do on public property.” Smith v. City of

Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).

Perhaps more tellingly, in upholding the right

to record law enforcement personnel, the Seventh

6

Circuit described as “an extreme position” and “an

extraordinary argument” the contention of the

State’s Attorney “that openly recording what police

officers say while performing their duties in

traditional public fora — streets, sidewalks, plazas,

and parks — is wholly unprotected by the First

Amendment.” Am. Civil Liberties Union of Ill. v.

Alvarez, 679 F.3d 583, 594 (7th Cir. 2012). The

Seventh Circuit went on to hold that

[a]udio and audiovisual recording

are media of expression commonly used

for the preservation and dissemination

of information and ideas and thus are

“included within the free speech and

free press guaranty of the First and

Fourteenth Amendments.” Laws that

restrict the use of expressive media

have obvious effects on speech and

press rights; the Supreme Court has

“voiced particular concern with laws

that foreclose an entire medium of

expression.”

The act of making an audio or

audiovisual recording is necessarily

included within the First Amendment’s

guarantee of speech and press rights as

a corollary of the right to disseminate

the resulting recording. The right to

publish or broadcast an audio or

audiovisual

recording

would

be

insecure, or largely ineffective, if the

antecedent act of making the recording

is wholly unprotected, as the State’s

Attorney insists. By way of a simple

7

analogy, banning photography or notetaking at a public event would raise

serious First Amendment concerns; a

law of that sort would obviously affect

the right to publish the resulting

photograph or disseminate a report

derived from the notes. The same is

true of a ban on audio and audiovisual

recording.

Id. at 595-96 (internal citations omitted).

More recently, the Third Circuit upheld the

right of individuals to photograph or videotape law

enforcement personnel in public. See Fields, 862

F.3d at 360 (“In sum, under the First Amendment’s

right of access to information the public has the

commensurate right to record—photograph, film, or

audio record—police officers conducting official

police activity in public areas.”). These cases show

that the First Amendment right to photograph and

videotape law enforcement personnel in public is

now well-established in some – but not all – Circuits.

See id. at 355 (“Every Circuit Court of Appeals to

address this issue (First, Fifth, Seventh, Ninth, and

Eleventh) has held that there is a First Amendment

right to record police activity in public. Today we

join this growing consensus.” (citations omitted)).

It is likely that the opposition to photography

and videotaping activities stems from the fact that

“many would prefer to be in a position to shape

perceptions of their actions without competing

digital records. Police officers often view private

digital image capture as a challenge to their

authority.” Kreimer, Pervasive Image Capture and

8

the First Amendment, 159 U. Penn. L. Rev. at 357.

This, rather than purported safety concerns

associated with being recorded, has resulted in a

“rich set of cases in which police have sought to

prosecute critics or potential critics who capture

their images. In these cases, police officers and

other officials have enlisted both existing statutes

and creative prosecutorial discretion in the struggle

to constrain inconvenient image capture.” Id. Until

recently, if not continuing, police officers have

“invoke[d] the wiretap statute against those who

antagonize them by recording them.” Id. at 359 n.79

(collecting cases from Pennsylvania).

Indeed,

[t]he typical police officer, plaintiff, or

complainant in the image-capture cases

canvassed above is not concerned with

avoiding observation or preserving

seclusion simplic[i]ter.

She is

interested, rather, in assuring that

evidence of dubious or potentially

embarrassing actions is not credibly

conveyed by the observer to a wider

audience by transmission of the

captured image. There are few cases on

record of police officers arresting

tourists who capture videos of polite

official responses to inquiries for

directions.

Prohibitions on image

capture are deployed to suppress

inconvenient truths.

Id. at 383. Such conduct cannot be countenanced in

a society in which “[t]he freedom of individuals

9

verbally to oppose or challenge police action without

thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation

from a police state.” Hill, 482 U.S. at 462-63. At a

minimum, the First Amendment “demands some

sacrifice of [police] efficiency . . . to the forces of

private opposition.” Id. at 463 n.12 (ellipsis in

original).

By granting the Petition and affirming that

there is a right to record or videotape law

enforcement personnel and activities, this Court

would alleviate the need for case-by-case

determinations for those individuals arrested for

undertaking such activities and would clarify the

issue for other courts which will almost certainly

face this issue in the future.

2.

The Emergence of Citizen-Journalists

and

the

Key

Role

They

Play

Demonstrates the Necessity of the

Enshrinement of a First Amendment

Right to Photograph and Videotape Law

Enforcement Personnel in Public Fora

Today, citizens armed with smartphones are

increasingly performing the watchdog functions

associated with the traditional news press. This is

surpassingly important because “[s]erendipitous

amateur image capture can fill some of the lacunae

left by the decimation of salaried news staffs.”

Kreimer, Pervasive Image Capture and the First

Amendment, 159 U. Penn. L. Rev. at 350. As

demonstrated below, now such image capture and

recordings are more often responsible for bringing to

light events that otherwise would go unnoticed or

10

unreported. See Fed. Commc’ns Comm’n v. CBS

Corp., 567 U.S. 953, 953 (2012) (Roberts, C.J.,

concurring) (“As every schoolchild knows, a picture is

worth a thousand words.”). As such, protecting the

right to photograph and videotape interactions

between law enforcement personnel and individuals

must be enshrined.

This is particularly important because, as

Professor Richardson observes, “courts repeatedly

defer to the judgments of all officers, with no inquiry

into the particular officer’s training, experience, and

skill.” L. Song Richardson, Police Efficiency and the

Fourth Amendment, 87 Ind. L.J. 1143, 1155 (2012).

Accordingly, cameras have become an effective tool

for ordinary citizens to protect against and expose

police abuses. Unfortunately, it has taken several

recent events to demonstrate the importance of the

citizen-journalist – whether or not he or she

intended to be one – in shedding light on police

killings of minorities. For example, in December

2014, a black man, Eric Garner, was killed by a

chokehold from a police officer. While the grand jury

did not indict the police officer, the killing, which

was recorded by a private citizen, Ramsey Orta,

served to draw mass attention to the interactions

between law enforcement personnel and minorities.

See J. David Goodman & Al Baker, New York Officer

Facing No Charges in Chokehold Case, N.Y. Times,

Dec. 4, 2014, at A1.

Similarly, in connection with the Walter Scott

killing in North Charleston, South Carolina on

April 4, 2015, the police officer implicated stated

that he feared for his life after Mr. Scott had

disarmed him.

The video recording by Feidin

11

Santana, an individual who happened to be walking

by at the time, shows an unarmed Mr. Scott running

away before being shot eight times. The footage also

shows the officer placing an object (possibly a stun

gun) near the body of Mr. Scott. As one report

stated, Mr. Santana’s video “opened the eyes of

millions of Americans who previously doubted that a

police officer would be capable of shooting anyone

who didn’t truly deserve it. It takes away their

certainty (until the next unrecorded shooting) that it

is always the victim’s fault.” Tony Norman, Video

for Once Allows Police No Excuses, Pittsburgh PostGazette, Apr. 10, 2015, at A-2.

As the Court is no doubt aware, these are

sadly not isolated instances. Accordingly, “because

the police have traditionally been the ones with

control over official narratives about police conduct

in court and in the news, the ability to counter those

narratives with stories backed up by video has

transformed the nature of both public opinion and

court testimony.” Jocelyn Simonson, Beyond Body

Cameras: Defending a Robust Right to Record the

Police, 104 Geo. L.J. 1559, 1571 (2016).

And, of course, the citizen-captured video of

George Floyd’s brutal arrest by Minneapolis police

officers graphically depicted the needless violence

inflicted on minority communities by law

enforcement, sparking nationwide protests and what

has been described as the largest movement in the

country’s history. See Larry Buchanan et al., Black

Lives Matter May Be the Largest Movement in U.S.

History,

N.Y.

Times

(July

3,

2020),

https://www.nytimes.com/interactive/2020/07/03/us/g

eorge-floyd-protests-crowd-size.html.

12

Absent a holding that there is an unequivocal

First Amendment right to photograph and videotape

law enforcement, many citizen-journalists’ activities

will be subject to chilling effects, at least in those

Circuits that have not expressly recognized that

right. Failing to hold such a right exists would rely

on an outdated notion of what constitutes the press

and, perhaps more concerning, who is entitled to

First Amendment protections. Over forty years ago,

this Court recognized that “liberty of the press is the

right of the lonely pamphleteer who uses carbon

paper or a mimeograph just as much as of the large

metropolitan publisher who utilizes the latest

photocomposition methods.” Branzburg, 408 U.S. at

704.

More recently, the Ninth Circuit recognized

that “[t]he protections of the First Amendment do

not turn on whether the [party] was a trained

journalist, formally affiliated with traditional news

entities, engaged in conflict-of-interest disclosure,

went beyond just assembling others’ writings, or

tried to get both sides of a story.” Obsidian Fin.

Grp., LLC v. Cox, 740 F.3d 1284, 1291 (9th Cir.

2014). It pointed out that “a First Amendment

distinction between the institutional press and other

speakers is unworkable: ‘With the advent of the

Internet and the decline of print and broadcast

media . . . the line between the media and others

who wish to comment on political and social issues

becomes far more blurred.’”

Id. (alteration in

original) (quoting Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 352 (2010)). As one court

wrote in recognizing the constitutional rights of

citizens to record police in public, developments in

technology “make clear why the news-gathering

13

protections of the First Amendment cannot turn on

professional credentials or status.” Glik, 655 F.3d at

84.

Absent a holding from this Court, individuals

in various Circuits that have not recognized the

right may be dissuaded from taking actions to

capture future instances of citizen-police interaction.

Such concerns are by no means hypothetical.

Mr. Santana moved out of the North Charleston area

and stated that “[o]ne of my concerns before giving

the video to the family was retaliation from the

police department.” Josh Sanburn, The Witness,

Time, http://time.com/ramsey-orta-eric-garner-video/.

The implications of a lack of clarity or consistency on

whether

photographing

or

videotaping

law

enforcement personnel is a protected right will cause

citizens to self-censor the subjects they would

otherwise record when faced with the possibility of

arrest and jail.

Moreover, any holding that a right to

photograph or videotape law enforcement will have a

minimal burden on law enforcement personnel –

perhaps only a tangential one no different from the

daily inconveniences they are expected to tolerate

and under which their colleagues in Circuits that

have recognized the right already operate.

Additionally, the “threat” of being recorded, along

with the ubiquity of video-recording devices, could be

expected to make law enforcement officials think

twice before using disproportionate force and,

perhaps, reduce the number of deaths that could and

should have been avoided.

See Garcia v.

Montgomery Cnty., 145 F. Supp. 3d 492, 507 (D. Md.

2015) (“[R]ecording police activity enables citizens to

14

‘keep them honest,’ an undertaking protected by the

First Amendment.”). Indeed, “[c]aptured images

need not be conveyed to others to have a salutary

effect. Just as public surveillance cameras are said

to reduce crime, the prospect of private image

capture provides a deterrent to official actions that

would evoke liability or condemnation.” Kreimer,

Pervasive Image Capture and the First Amendment,

159 U. Penn. L. Rev. at 347.

In sum, as the Third Circuit noted:

We ask much of our police. They can be

our shelter from the storm. Yet officers

are public officials carrying out public

functions, and the First Amendment

requires them to bear bystanders

recording their actions. This is vital to

promote the access that fosters free

discussion of governmental actions,

especially when that discussion benefits

not only citizens but the officers

themselves.

Fields, 862 F.3d at 362.

Although the Eleventh Circuit had also

recognized this First Amendment right to record

police in Smith, 212 F.3d at 1333, over twenty years

later the court has now made that right meaningless

by granting police qualified immunity when they

seize the phones of people, like Petitioner, to prevent

them from recording police activity in public. See

Crocker, 995 F.3d at 1240-43. Thus, this Court

should grant the Petition and make clear that the

15

public has the right to photograph or videotape law

enforcement personnel and activities in public fora.

CONCLUSION

For the foregoing reasons, and those described

by the Petitioner, the Court should grant the

Petition.

Respectfully submitted,

John W. Whitehead

Counsel of Record

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, Virginia 22911

(434) 978-3888

legal@rutherford.org

Counsel for Amicus Curiae