105 F. Supp. 3d 369 (S.D.N.Y. 2015)
Most recent action
On July 25, 2018, the U.S. Court of Appeals for the Second Circuit issued a summary order, dismissing Douglas Higginbotham’s First Amendment retaliation against the police officers who arrested him. The court held that even though the U.S. Supreme Court upheld a similar retaliation claim in Lozman v. City of Riviera Beach, that ruling left open the question of whether it could apply to a claim against police officers, instead of a municipality.
Amicus brief
On March 17, 2017, Media Coalition Foundation, Association of American Publishers, Authors Guild, Freedom to Read Foundation and 60 other media organizations submitted an amicus brief to the Second Circuit Court of Appeals asking it to confirm that there is a First Amendment right to record the actions of police and other government employees when they are at work and in public.
The brief urges the Second Circuit to issue a clear ruling that there is a First Amendment right to record police activity occurring in public. “The recording of police activity in public places falls within the First Amendment’s protective aegis because it is a necessary prerequisite to documenting and reporting official conduct, as well as misconduct.” The brief adds that in other Circuits, the right to record extends to the public and is not limited solely to journalists.
The brief also asks the court to deem the right to record to be clearly established to prevent the police from being shielded from liability by invoking sovereign immunity. Otherwise, people will avoid exercising the right for fear of reprisal. The brief describes numerous examples of such reprisals by the government.
District Court ruling and appeal
On November 2, 2016, the U.S. District Court Judge P. Kevin Castel granted defendants motion for summary judgement and dismissing Higginbotham’s First Amendment retaliation claim. In his decision, Judge Castel held that First Amendment protects the rights of journalists to record police officers in public places subject to reasonable time, place and manner restrictions. He rejected the officers’ claim that they were shielded from Higginbotham’s First Amendment retaliation claim by qualified immunity. Judge Castel found that the right to record “clearly established” at the time of Higginbotham’s arrest. However, the judge granted the defendants’ motion for summary judgement because it was objectively reasonable to arrest Higginbotham for probable cause and not to violate his constitutional rights. Higginbotham appealed the decision in the Second Circuit. The appellees’ brief is here too.
Background
On November 15, 2011, Higginbotham was working as a freelance cameraman working for TV New Zealand during a police raid on the Occupy Wall Street protests. He climbed atop a telephone booth to get a better vantage point to film the events. Video of the incident shows that the police told him to climb down. As he was doing so, police pulled him to the sidewalk, forcefully took his camera, handcuffed him and held him in jail for several hours. He was charged with disorderly conduct.
Following his arrest, Higginbotham brought a civil rights action against the arresting officers and the City of New York in the United States District Court for the Southern District of New York. Higginbotham asserted that he was falsely arrested in violation of the Fourth Amendment, and that “the defendants retaliated against him for filming a violent arrest in violation of his First Amendment rights.”
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