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You have a right to take videos of cops in public without getting arrested for it, a Florida appeals court ruled Wednesday.
It’s a victory both for a woman who sued Boynton Beach police on false arrest claims, and national civil rights groups and media organizations that recently rallied behind her case.
Reversing a decision from three months ago, a panel of three judges from the 4th District Court of Appeal agreed police had no expectation of privacy when Tasha Ford filmed officers outside a movie theater in 2009.
While Ford’s lawsuit against the police department will now continue in Palm Beach County Circuit Court, the ruling has much broader implications for a society trying to hold law enforcement in check for racial justice.
“Given how important cellphone videos have been for police accountability across the nation, I do not believe that society is ready to recognize that the recording of those interactions … are somehow subject to the officer’s right of privacy,” Judge Martha C. Warner wrote. “If that were the case, then had the individual who recorded George Floyd saying to the officers ‘I can’t breathe’ been in Florida, she would have been guilty of a crime.”
But Judge Melanie G. May, while agreeing “the officers did not have a reasonable expectation of privacy,” still slammed Ford’s behavior on the night of her arrest. May dissented in part from the decision by Warner and Judge Edward L. Artau.
“Her intent was evident — create yet another YouTube video and controversy,” May wrote. “And she succeeded. By the majority’s ruling today, she has also succeeded in creating litigation out of nothing.”
The American Civil Liberties Union of Florida, joining organizations that rose to Ford’s defense, cheered Wednesday’s ruling as highly significant for the rights of people to bring police misconduct to light by using their smartphones.
“We’re especially pleased that the majority of the court corrected what would have led to a major obstacle to holding police accountable,” said ACLU attorney James K. Green.
Sam Alexander, Ford’s lawyer, called it “a win for all Floridians, because it affirms the right to record police in public places while performing their official duties.”
The ACLU had also argued that Ford’s case holds major First Amendment concerns. It cited rulings by courts across the nation that “ordinary citizens, just like professional journalists, have a First Amendment right to record police officers in the performance of their official duties in public places.”
But in Wednesday’s opinion, the three judges agreed the matter of First Amendment protections was not raised in Ford’s lawsuit, so their ruling focused only on whether police have an expectation of privacy.
Ford said in sworn testimony that she brought her digital camera when she went to pick up her teen son, who had been detained for allegedly trying to sneak into a theater. The mom said she hoped it would prevent the cops from lying about what happened that night.
“Well, as you know, I’m Black. And in our community there are a lot of things that take place. And I don’t want to be a victim of those things,” Ford explained. “I thought if I had the camera, everyone would be honest and truthful.”
In lower court pleadings, lawyers for the officers argued Ford invaded their privacy, justifying the charges of intercepting oral communications and obstruction without violence.
Officers said Ford created a confrontation in the theater parking lot, when they gave repeated orders for her to stop using the camera without their permission. The cops said she interfered with the investigation of her son.
In a 2019 ruling, Circuit Judge Joseph Curley granted the city’s bid to stop Ford’s suit. She appealed.
Judge Artau found that the mom never got in the way of the cops doing their job.
“It is undisputed that (Ford) never attempted to physically obstruct or in any way impede law enforcement’s detention of her son,” he wrote.
Michael T. Burke, an attorney representing the city in the lawsuit, could not be immediately reached for comment despite a call to his office.
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Alexander, lawyer for Ford, said the ruling confirms his client “had every right to record the public detention of her son, and the police had no right to arrest her for refusing to stop recording, or for obstruction, when she never physically obstructed them.”
The State Attorney’s Office long ago decided not to prosecute Ford.
Judge Warner wrote Ford never should have been arrested, and it’s important that no one else find themselves in the same situation.
“The facts of this case seem to be only too similar to so many police encounters caught on video or cellphones,” she wrote. “The officers had no reasonable expectation of privacy … while performing their public duties, particularly in public spaces … society has definitively come down on the side of approving the videoing of officers in the performance of their duties as a method of accountability.”