The issue had already been decided by eight other circuits, but that’s not good enough in the very self-important Second Circuit Court of Appeals. So when the question arose in Massimino v. Benoit, it appeared that there would finally be an answer to the pressing question of whether there was a First Amendment right to record police activity and, under the specific facts of the case, the exterior of police buildings from a publicly accessible sidewalk.
The court answered the question with a resounding “yes,” even if the court simultaneously granted the officers qualified immunity because no reasonable police officer could have possibly known that there was a clearly established right to exercise free speech after the eight other circuits held exactly that.
We begin by joining a growing chorus of [eight of] our sister circuits that have recognized a First Amendment right to record law enforcement activity in public. {See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017); Sharpe v. Winterville Police Dep’t, 59 F.4th 674, 680–81 (4th Cir. 2023); Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017); American C.L. Union of Ill. v. Alvarez, 679 F.3d 583, 594–95 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); Irizarry v. Yehia, 38 F.4th 1282, 1289 (10th Cir. 2022); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).} That right encompasses Massimino’s recording of the exterior of a police station from a public sidewalk.
The court then provides a cursory explanation as to why this obvious First Amendment right was a First Amendment right, too obvious for judges but not apparently for police officers.
There has long been “practically universal agreement that a major purpose of th[e] [First] Amendment was to protect the free discussion of governmental affairs.” In the daily lives of many Americans, “governmental affairs” is not an abstract concept; it is a badge and a uniform. When a citizen records public police activity, she creates speech concerning the state’s most immediate instrument for enforcing its laws. Speech of this kind “is more than self-expression; it is the essence of self-government.”
Of course it’s a badge and a uniform, unless the person infringing on this right wears a badge and uniform, in which case who could have possibly known it?
Indeed, the First Amendment “has a structural role to play in securing and fostering our republican system of self-government.” “Implicit in this structural role is … the antecedent assumption that valuable public debate—as well as other civic behavior—must be informed.” As we have explained, “it is essential that the people themselves have the ability to learn of, monitor, and respond to the actions of their representatives and their representative institutions.”
Having belabored the point enough, suffice it to say that the court held that the right to record police activity, including the exterior of a police station from a publicly accessible location, is now a clearly established right in the Second Circuit. Yay? Not quite.
We agree with the District Court that Massimino was subject to a seizure when Benoit and Laone “asserted that their demand for identification was ‘a lawful order.’” At that point, Massimino was no longer free to decline the request for identification. His refusal to provide identification was the basis for his arrest.
Wait, what? Massimino was arrested for refusing to provide identification after being seized for exercising his constitutional right? And the court holds that’s fine?
Thus, the operative question is whether Benoit and Laone’s decision to detain Massimino was supported by reasonable suspicion the moment they framed their request for identification as “a lawful order.”
To begin, the fact that Massimino was recording the police station, standing alone, is insufficient to furnish reasonable suspicion. A person may be videotaping the exterior of a building, even a police station, for any number of legitimate reasons: they might be pursuing an architectural interest, formulating political speech, or engaging in artistic expression (perhaps channeling Monet to record the building in different lights). At the same time, a person may be videotaping for illegitimate reasons: they might be creating a video recording to plan arson, robbery, or a bombing. Officers remain free to approach a person recording a building and ask questions or request identification.
A person can be walking down the street for a legitimate or illegitimate reason. So what?
As noted, Massimino was so detained when Benoit and Laone characterized their request for identification as “a lawful order.” At that point, the circumstances under which Massimino was recording the police station—coupled with his evasive responses to Benoit and Laone’s questions—were sufficient to justify a brief investigative detention. Massimino recorded the police station for an extended period of time, near dusk, and in a manner that could reasonably concern an officer worried about the safety and security of the station. Indeed, Benoit and Laone testified that, at the time, they were aware of recent attacks on other police stations.
It’s hard to imagine a more pathetic rationalization for reasonable suspicion. So on the one hand, the Second Circuit holds that there is a First Amendment right to video police activity and the exterior of a police station. On the other hand, the police can cobble together any lame claim of “concern” and detain and demand identification from the person exercising the right upon pain of arrest.
If you can be arrested for the exercise of a constitutional right, is it any right at all?
*Tuesday Talk rules apply.