Photographing Police Is Legal in Texas, Too, Judge Rules in First Amendment Case

A federal court judge in Texas has rejected an argument that the right to photograph or videotape police officers “is not recognized as a constitutional right,” clearing the way for a citizen’s civil rights claim against the City of Austin, its police chief, and various Austin police officers.

“The First Amendment protects the right to videotape police officers in the performance of their official duties, subject to reasonable time, place and manner restrictions,” U.S. Magistrate Judge Mark Lane wrote in the decision handed down last week.

The judge also rejected an argument by the defendants that they should be immune from prosecution in the case because the right to photograph police officers performing their duties was not clearly established when they arrested the plaintiff on three separate occasions.

“A robust consensus of circuit courts of appeals that have addressed this issue have concluded that the First Amendment encompasses a right to record public officials as they perform their official duties,” the judge wrote, citing several right-to-record decisions favorable to plaintiffs from around the country.

The plaintiff in the Texas case, Antonio Buehler, was first arrested on January 1, 2012, when he photographed two Austin police officers engaged in a traffic stop in a parking lot. Buehler was refueling his truck nearby when he heard one of the officers yelling, then saw a passenger of the stopped vehicle being “yanked violently” out of the car and thrown to the ground.

Buehler started taking pictures from a distance, and asked the officers why they were abusing the passenger, according to court papers. One of the officers approached Buehler and arrested him for “resisting arrest, search or transportation” after accusing Buehler of spitting on him, according to court documents.

Buehler filed a complaint with the police, but he alleges that no action was taken. He ended up forming an organization called Peaceful Streets Project to help inform people about their rights “and hold law enforcement accountable.” The organization now routinely video records police officers to prevent and document police brutality, according to court papers.

Buehler was subsequently arrested for recording the arrest of a man in downtown Austin on August 26, 2012. He was arrested a third time about a month later, also for video recording police performing their duties. Both times he was charged with Interference with Public Duties.

In response, Buehler sued for violation of his First and Fourteenth Amendment rights. He also alleged false arrest, excessive force, unlawful search and seizure, and malicious prosecution.

In addition to refusing the city’s motion to throw out Buehler’s federal civil rights claims, Judge Lane sustained his claim for false arrest; his claim that the city and its police chief failed to establish a policy, train, and supervise city police officers about the rights of individuals to record police; and his various state law claims.

But the judge dismissed parts of Buehler’s lawsuit, including claims for malicious prosecution and excessive force, because Buehler’s allegations didn’t meet the legal standards required to sustain those claims.

The ruling was not a final decision on the merits of Buehler’s claims. Instead, it cleared the way for Buehler to continue pursuing the surviving claims.

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4 Responses to “Photographing Police Is Legal in Texas, Too, Judge Rules in First Amendment Case”

  1. Photographing Police Is Authorized in Texas, Too, Decide Guidelines in First Modification Case | JanNews Blog Says:

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  2. Chris Wendt Says:

    A short time after 9-11-2001 there was a bomb scare on 23rd street near Madison Avenue in NYC. The police closed-off 23rd Street for obvious safety concerns while the Bomb Squad went to work. I asked one of the uniformed officers where I could go to photograph the situation, and he directed me into Madison Square Park, across the street. I had a good vantage point atop a park bench. At the scene, one of the Bomb Squad saw me taking pictures, and issued instructions to have me arrested. Fortunately, the officer who had directed me into the Park stood behind his instructions, and I was released at the scene.

  3. Patsy Lynch Says:

    I am glad that the rights to document police activity is being held up by a Federal judge. All to often, alleged misconduct on the part of law enforcement personnel and photographers, be he/she be a professional or not, is used as a reason for assault or worse.
    Common sense and judgement needs to be encouraged.

    Hopefully cases like this and others will be used by all parties when documenting activities.

  4. Kevin Vandivier Says:

    I am so glad to see this ruling. I’ve worked in the Austin area off and on as a PJ since 1980. These last 15 years have been horrible. The police in this city have lost their minds and moral compasses. In all my travels over the years to many countries less tolerant and “free” than ours, I have never experienced the kind of oppression I have here from the Austin Police Department. I can remember a day when they were nice, respectful and understanding of my duties as a photojournalist. It has also spread to all the surrounding police departments in our area. I last accepted a news assignment here to cover the huge wildfires we had here and for two weeks while working assignments I was threatened to be arrested by just about every brand of law enforcement multiple times a day and in manners that were incredible rude, unprofessional and just plain mean! I’ve since stopped taking news assignments in this area for this reason alone. Antonio Buehler has now become one of my hero’s!