See no evil

Suppose you are standing on a street corner waiting for the pedestrian light to change when you look up and see a police officer standing next to you who suddenly orders you to look away; to not look at him, and if you continue to do so he will arrest you for looking at him. Is that police officer legally and constitutionally authorized to order you not to look at him?

Of course not! You are free to look at anything, anyone or any activity going on in a public place. You are free to whip out your notebook and write down a description about anything you see. And you are just as free to record exactly what you can see with your own eyes with a cell phone or digital camera.

But what if the cop is in the process of using force to subdue a criminal suspect; taking him down, handcuffing him, making an arrest and taking him into custody? Can that cop order you and all other bystanders on the street not to look at that? Are you and others not allowed to use your own eyes if the cop orders you to look away? Can the cop order you not to remember what you saw; to refrain from writing it down; to not record the event in any fashion?

Again, of course not! The very idea is ridiculous! No one has the legal or constitutional authority to tell you that you are not allowed to look at events, such as police activity, that are happening right out in the open in a public place. And if you are free to look at such events, you are just as free to write about them, and yes, to record them with a camera.

OK, but what about this nitwit U.S. District Court Judge Mark Kearney from Philadelphia who ruled that citizens can sometimes be stopped from recording police officers on duty? There is only one reason why any police officer performing his duties in a public place, such as a street corner, would object to bystanders looking at him or recording his activities – he might not want to be accountable for what he is doing.

It’s a simple as that.

This nitwit judge is going to be overruled in the court of appeals. He thinks that citizens don't have an unfettered right to record police activity and that police are free to stop such recordings unless the person shooting the video announces he or she is recording as a challenge or protest to officers' actions. The First Amendment doesn't give people a right to record police unless it is part of "expressive conduct," declared the judge.

That is the most bizarre judicial ruling I have ever heard in my entire 45 year legal career. A cop can order bystanders in a public place to see no evil unless they announce that it is expressive conduct, the judge reasons. That’s what his ruling amounts to.  

"Gathering information for dissemination is a fundamental part of what we do under the First Amendment, and videotaping a police officer conducting their duties in a public space is a fundamental example of gathering information," observes Paul Hetznecker, a civil rights lawyer who represented a photojournalist arrested in 2010 for recording police at a protest in Philadelphia.

Forget about the First Amendment; were talking about a most basic and fundamental liberty here. Bystanders on a public street enjoy the liberty to look at and record any activity that is taking place in public. They may not be deprived of that basic liberty without due process of law, and since looking at activity occurring in a public place is not a crime no police officer has the authority to order them to…

see no evil.