You CAN Record Police in Florida While in Public According to a Decision from the 4th District Court of Appeal
According to 3 judges from the 4th District Court of Appeal in South Florida, yes, you can record police in public without getting arrested for it.
After a long legal battle spanning over a decade, Florida’s 4th District Court of Appeal reversed their previous decision that Tasha Ford obstructed justice by recording her son’s arrest in 2009.
Boynton Beach Woman’s Fight for Justice and Police Accountability
In 2009, Tasha Ford received a call to pick up her underage son when he was arrested for trespassing in a Muvico in Boynton Beach, Florida. Ford, a black woman in South Florida, has experienced racial injustice in her life and did not want her son falling victim to similar treatment from the police. As a result, she grabbed her camera along with her keys on her way out of the house to get her son.
Ford approaches the police officers, turns on her camera, and begins asking why her son was being arrested. The police on the scene asked her to turn off her camera multiple times, saying it is illegal for her to make audio recordings of them. Ford kept her camera on through most of the interaction and asserted that she was a concerned mother inquiring why her son was being arrested.
The police arrested Ford in front of her son for criminal charges of Obstruction of Justice without Violence as well as Intercepting Oral Communications and Ford was promptly taken to jail. State Prosecutors decided not to file charges against her and dropped the case. Ford, however, was not satisfied with this resolution. She knew it was wrong that the police arrested her. She filed a civil lawsuit against the Boynton Beach police officers for the false arrest.
First Amendment Rights Get Threatened in an Unjust Appeal Court Decision in Florida
Tasha Ford enlisted the help of the ACLU, also known as the American Civil Liberties Union, to sue the Boynton Beach police officials. The case went to the 4th District Court of Appeal in South Florida where Ford’s lawsuit was litigated, or disputed in court, for over a decade.
In a disheartening turn of events, 2 out of 3 judges hearing the case in the 4th District Court of Appeal upheld the police’s decision to arrest Ford for obstructing justice.
The result of this tumultuous lawsuit drew the attention of civil rights groups and media outlets across the nation. The decision came in the wake of civil unrest regarding racial injustice following the murder of George Floyd. Even the dissenting judge argued in her opinion on the lawsuit that a ruling against Ford would suggest that Darnella Frazier, the woman who recorded the act of brutality against George Floyd, was guilty of criminal activity. We even wrote a blog article expressing our views on this outrageous decision and our view on it being an attack on our First Amendment Rights.
Unfortunately, Judges Melanie G. May and Edward L. Artau of the 4th District Court of Appeal ruled that Tasha Ford obstructed the Boynton Beach police investigation when she failed to comply with the officers’ requests to stop recording her son’s arrest. Judge Martha Warner, on the other hand, disagreed and wrote a long dissenting opinion stating the police officers did not have the right to privacy while performing an arrest in public.
When this ruling was issued in May of 2021, the 4th District Court of Appeal in Florida decided that the police did the right thing. The significance of this cannot be understated. That means that the court decided that Tasha deserved to be arrested. That means it was the court’s opinion that recording the police the way Tasha did is a criminal offense.
The dangerous implication of this decision is that all Floridians should think twice before pulling out their phones to record a police officer. That means the digital tool that was instrumental in bringing justice for George Floyd would not be available to individuals interacting with police in Florida. This is particularly hurtful for the Black community in Florida because the right to record the police has been so crucial for combating racial bias and maintaining police accountability. We believe that suppressing one of the greatest defenses against police misconduct is a great injustice and a devastating blow to the progress our country has made in achieving racial justice and equality.
4th District Court of Appeal Reverses its Ruling about Recording Police Officers
The decision the 4th District Court of Appeal made about Tasha Ford recording the Boynton Beach police outraged the American Civil Liberties Union of Florida and several other civil rights groups across the country. After these groups pushed for the court to rehear Ford’s case, the Florida Court of Appeal reversed their decision and issued a new ruling stating that the Boynton Beach police officers “did not have a reasonable expectation of privacy”.
The same court and the very same judges that decided Ford illegally recorded the police just three months earlier have now completely reversed their ruling. How is this possible?
Normally, if an appeal court rejects your case and you would like to appeal it again, you would have to take that case to a higher court. In this case, the very same judges that issued a decision just three months earlier on the decade long lawsuit are rehearing the exact case again.
Ford’s lawyer, Samuel Alexander, filed a motion (which is a request for a judge to decide on a contested issue in a case) to rehear the case after the ACLU along with other civil rights groups submitted court documents in support of Tasha Ford. This motion was approved because Ford’s counsel brought forth new documents and a new argument for the case. If a court has new information that can impact a previous decision they have made, the judges can rehear a case.
The reason why the ACLU and other civil rights groups fought so hard for Ford is because of the significance of court decisions and their broader implications for our society. These decisions are called “precedents” and they are used as a guide for future decisions. That means whatever the courts decide about recording the police in Ford’s case will become a standard by which they evaluate cases in the future. And if the court decides that the way Ford recorded the police was illegal, that means the court will view all future similar police recordings as illegal.
Conversely, if the ACLU can prove that Ford did nothing wrong and she was within her rights to record the police, then the court will create a new precedent that anyone who records the police as Tasha did is acting within their rights.
When Ford got her second chance to be heard by the 4th District Court of Appeal, her legal counsel focused on the argument that ordinary citizens have the First Amendment right to record police officers performing their job in public spaces. The police, however, argued that doing so would violate their privacy and subsequently obstruct their ability to perform their duties of enacting justice. The legal issue, then, would be whether or not police have a reasonable expectation of privacy while on duty in public.
Boynton Beach Police Lose Case and the Right to Record Police Remains Protected
The laws regarding individuals’ rights to privacy are tricky, but in general, it is agreed that one forfeits most of his or her rights to privacy when they are in public. The right to privacy is the freedom one has to be left alone, free from the observations and disturbances of other people. In a sense, an individual gives up that right whenever they occupy a public space because they are out in the open where they can be observed.
An individual can take photos and record videos while in public because everyone else who is around is voluntarily in an open area where they cannot conceal themselves. As a result, the judges applied this same standard to the police and decided that they had an unreasonable expectation of privacy while publicly arresting Ford’s son in a parking lot outside of a movie theater.
Judge Martha C. Warner stressed how important cellphone videos are for police accountability in her written opinion about the lawsuit. She does not believe our society should recognize that the police have the authority to decide if their duties, when conducted in public, are private or not. If that were the case, a police officer can commit atrocious acts of misconduct while on duty and prevent a citizen from recording it by saying he or she was doing it “in private”.
This new court ruling is a major victory for Tasha Ford and her family, civil rights activists, the state of Florida, and even for our country. You can now take videos in public of a police officer acting on duty knowing you are not doing something illegal.
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