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A photographer is recording from a public sidewalk when he is confronted by Police. He refused to give his information because he had committed no crime. The Police then tried to claim that he was loitering in order to arrest him. Under threat of arrest, he gave his name and information to the Police. Afterwards the Police confiscated his camera and phone under "suspicious activity".

  • Did the Police act legally when they confiscated his property?
  • Since the photographer was conducting a 1st amendment protected activity. Could he have been charged with loitering?

Here is the video for reference: https://www.youtube.com/watch?v=OWOtUDf0elQ

  • You should do some basic research: desmoinesregister.com/story/news/crime-and-courts/2019/07/10/… – BlueDogRanch Jul 25 at 3:14
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    First of all, EVERY question on this site can be answered with google and a link to a news article doesn't improve the quality of the question or answer it. Secondly, just because a U.S. District judge makes a ruling. The case does not end there... if that is what you are insinuating (We don't know by your basic comment). Ever heard of Turner V Driver? That started as dismissed lawsuit too.. – Digital fire Jul 25 at 4:07
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    You did leave out that tiny detail that he was in front of a police station and systematically filming police cars. – gnasher729 Jul 25 at 6:55
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    @gnasher729 Does that affect the 1st Amendment analysis? If so then how? – Paul Johnson Jul 25 at 12:09
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    @gnasher729 Standing in front of police station and filming anything one can see from public is completely legal. youtube.com/watch?v=Kez1-dVN3iE Here is a video of exactly that .. He got a $41K payout from the city.. – Digital fire Jul 25 at 14:56
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The district court judge, as reported in this news story has held that there was probable cause to arrest Daniel Robbins in this case, and that his rights were not violated. If this ruling stands, officers acted legally, although they might still be required to return the phone with the images.

Whether there is probable cause for an arrest (or a search) is always a very fact-based issue. I have not found the judge's actual decision, only a news summary of it, which can often be misleading. Specific facts about exactly what Robbins did or said may be important in determining whether there was in fact probable cause.

It appears that Robbins intends to appeal this decision. If he does there may be an opinion from a Circuit Court of Appeals expanding on whether there was probable cause or any violation of rights, and why.

Previous cases have established that normally there is no reasonable expectation of privacy for acts performed in public; that one my photograph or video record such public acts legally from anywhere that one may legally be; that there is a right photograph or record police officers engaged in official actions or the use of police powers; and that laws attempting to forbid such recording are unconstitutional when so applied. However, it seems from the news story that here the police officers were off-duty and not engaging in any official acts or use of police powers. That might change the ruling.

I rather expect the district court's decision to be overturned, but there is no case exact;ly on point that i know of, and one can never be absolutely sure what a court will do in a particular case. I can see why police officers may have felt threatened, and why the Judge may have been inclined to sympathize with them, although I think the decision was incorrect. But a Judge of the Appeals Court might possibly feel the same way. Until the Appeals Court rules, one cannot be sure what the law in this matter will finally be. (It is possibly, but statistically a bit unlikely, there there will eventually be a ruling from the US Supreme Court on this case.)

This article from Nolo Press discusses the issue of recording police, primarily in the context of police who are performing their official duties. It says:

Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) police officers in public while they are performing their duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law.

The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).)

The Nolo article goes on to discuss whether a Section 1983 Federal suit against police officers who arrest someone recording their actions will succeed, indicating that this will depend on the specific facts of the case.

The Nolo article mentions that one is not allowed to interfere with an officer during process of recording. What exactly constitutes "interference" is not fully clear, and will depend on the facts of a specific case. The Nolo article mentions other circumstances when recording an officer may not be legal.

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Background

From the Iowa Municipal Code:

Sec. 70-39. - Loitering near government buildings.
(a) No person shall congregate, stand, loaf or loiter in or in front of or around any school or other public building occupied in whole or in part by any governmental subdivision, including any agency, body, department, office, board or commission and the like thereof, so as to obstruct, hinder, prevent or disrupt the normal functions carried on therein or thereat or so as to obstruct, hinder or prevent persons passing by or into or out of the school or other public building or attempting or desiring to do so.

(b) Nothing contained in subsection (a) of this section shall be held to prohibit peaceful picketing, public speaking, the ordinary conduct of a legitimate business, or other lawful expressions of opinion not in contravention of other laws

Emphasis mine. As far as loitering goes, this guy (I haven't watched the video), is pretty much dead to rights standing on the sidewalk in front of a police station, and someone walks around him (obstruct...person passing by).

Does filming it make it okay under the 1st amendment? Probably not. I think a court would uphold that police have an expectation of privacy in their own police station, and LEOs driving into and out of it are not conducting an official law enforcement activity.

Even under the municipal code, I'd hardly argue filming is a legitimate business practice in this case (it might be if he needed stock footage of police cars for a film), or an expression of opinion.

Are police really that concerned with loitering? Probably not. They're probably more worried about why some guy is filming them coming and going, and what he intends to do with that information.

Answers

1). Yes, I think the police acted legally. They saw a crime being committed (loitering), and confiscated the evidence of that crime (the camera footage). Evidently, the LEOs decided not to press charges for anything, and returned the camera at some later point in time (otherwise how is this on YouTube?).

2). Absolutely he can be charged with loitering. Does he get convicted? Maybe. Does he have a 1st amendment defense? He can try. Trial outcomes are always an unknown. I think under the 1st amendment, the police would have to be carrying out some activity, like an arrest, riot control, traffic control, or something like those for filming to be protected.

  • Welcome to Law.SE. Your IANAL warning at the top of your answer is not necessary. I suggest reading through the law.meta.stackexchange.com page to get a good idea of what is and isn't required/allowed on the site. – Digital fire Jul 25 at 15:37
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    I think that reading standing on a sidewalk as "obstruction" is a bit of a reach. Otherwise anyone standing anywhere in public is guilty of obstruction. It would also make protected activity such as leafletting into a crime, so there must be an implicit 1st Amendment carve-out in this. Given that filming the police in their duties is a protected activity it would fall into this category. Also anything a LEO does while on duty is official activity. The only non-official activity would be LEOs before and after shift. The only other concern would be MOPs who might not want their visit known. – Paul Johnson Jul 27 at 7:11

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