The Right to Record and Police Accountability

by | Jun 30, 2017

The Right to Record and Police Accountability

by | Jun 30, 2017

The New York Police Department’s Civilian Complaint Review Board (CCRB) reported that over a three-year period, NYPD officers threatened, blocked, and otherwise tried to prevent individuals from recording them in public in the performance of their duties. Almost 100 of the 346 allegations made between 2014 and 2016 were substantiated by the board, not counting the many cases that may not have been reported.

To be fair, there are many thousands of contacts between police and individuals that happen in New York City. Although there is no way to know how many of those interactions are recorded, it’s fair to assume that many of them have been as cell-phone recording capabilities have become ubiquitous. However, there is clearly a segment of officers—perhaps very small, but nevertheless real—who feel that they may violate the First Amendment rights of people who record them. To alleviate this, the CCRB suggested that a new entry should be included in the Patrol Manual to reassert the public’s right to record police interactions. That insertion is fine, but more could and should be done because it is extremely unlikely that every officer who disrupted lawful, public recording was ignorant of the right to do so. Any officer who already knew the law was committing misconduct.

Police officers should be held accountable for their actions. Unfortunately, New York State law prohibits the Department or the CCRB from releasing the names of officers who have complaints lodged against them, whether or not they are sustained, or what the outcomes of any disciplinary actions taken were short of termination. As I testified before the U.S. Commission on Civil Rights in 2015:

According to an investigation of New York City’s Civilian Complaint Review Board records, about 40 percent of the 35,000 NYPD officers have never received a civilian complaint, but roughly 1,000 officers have more than 10 complaints on file. One officer has over 50 complaints but retains his position.

Institutionally, the NYPD knows these 1,000 officers are repeat offenders several times over. Multiple complaints against a single officer over a period of months or years implies the officer must, at times, operate too close to the line of impropriety. Those 1,000 officers represent fewer than three percent of NYPD officers but can damage the reputation of the rest of the department. Clearly, some portion of these 1,000 officers are abusing their authority, and the NYPD is unwilling or unable to remove these officers from duty. And because the public can’t know their names and records, we cannot measure how effectively the NYPD addressed these incidents with any given officer. (internal citations omitted)

The lack of transparency is not limited to New York, by any means, but the NYPD’s institutional dedication to data collection at least gives us a glimpse of what is going on. Getting the right to record in the Patrol Manual is a good start, but the State of New York should repeal the anonymity granted to misbehaving officers. Such laws punish the best officers by making them indistinguishable from those who intentionally—and sometimes repeatedly—violate the rights of the people they are supposed to serve.

For a robust First Amendment analysis of the right to record, read this opinion by 2014 B. Kenneth Simon Lecturer Judge Diane Sykes. You can read my 2015 USCCR testimony on police transparency and the use of force here. Finally, you can check out the 2014 panel we hosted on recording the police here.

Republished from the Cato Institute.

About Jonathan Blanks

Jonathan Blanks is a Research Associate in Cato’s Project on Criminal Justice and Managing Editor of PoliceMisconduct.net. His research is focused on law enforcement practices, overcriminalization, and civil liberties. Blanks has appeared on various television, radio, and internet media including HuffPost Live and Voice of America. His work has been published in the Washington Post, The New Republic, Denver Post, Chicago Tribune, Capital Playbook (New York), Vice, Reason, Libertarianism.org, Rare.us, and the Indianapolis Star, among others. In 2015, Blanks testified before the U.S. Commission on Civil Rights on police accountability. Blanks is a graduate of Indiana University.

Our Books

latest book lineup.

Related Articles

Related

TGIF: Immigration in an Nth-Best World

TGIF: Immigration in an Nth-Best World

We live in an nth-best society. It's neither fully libertarian (though libertarians disagree over exactly what that would mean) nor totalitarian like the Soviet Union, Nazi Germany, Fascist Italy, Maoist China, or North Korea. It's somewhere in between, closer to...

read more
Our Bloody Cultural Psychosis

Our Bloody Cultural Psychosis

Imagine someone who did not know the difference between right and wrong and felt that he could, and should, take anything he wanted from anyone he wanted because, as far as he could see, there was no reason not to. If he wanted to buy something but was low on funds,...

read more
Biden’s Yemen Policy Isn’t Working

Biden’s Yemen Policy Isn’t Working

For the last several weeks, the country of Yemen and their Houthi government have been in the news far more than they were during their war with Saudi Arabia. This is because the Houthis began to attack ships in the Red Sea, a frustrated reaction to the United States’...

read more
No Man Controls Everything in a State

No Man Controls Everything in a State

The constant screeching about various “strongmen” from America’s media and think tank classes seem to have created a widespread misunderstanding about how governments, or really any large organization, work. We perhaps see this the most with Russia, where we hear the...

read more
From Bouazizi to Bushnell

From Bouazizi to Bushnell

Twenty-five-year-old Aaron Bushnell, an active-duty member of the United States Air Force, died on Sunday after setting himself on fire in front of the Israeli embassy in Washington DC as an act of protest against the slaughter in Gaza. Unfortunately, the act is...

read more

Pin It on Pinterest

Share This