He goes around filming police. Federal appeals court ruling says that’s OK.

February 27, 2017

Take a quick look at Phillip Turner’s police videos and the word “testy” comes to mind.

A 27-year-old part-time college student, Turner has been conducting self-described “First Amendment Audits” over the past few years by shooting videos outside police stations across the state. His work often leads to tense verbal exchanges with officers who clearly don’t like what he’s doing.

A 2015 encounter with Fort Worth police outside an east-side police substation, however, is having a far-reaching impact after the federal 5th Circuit Court of Appeals earlier this month used Turner’s case to clear up any question that videotaping or filming police activities is protected by the First Amendment.

The ruling comes at a time when police activities have been under close scrutiny, with videos like the one taken in the Jacqueline Craig case in Fort Worth going viral and turning a nationwide spotlight on police conduct. Fort Worth police officer William Martin was suspended for 10 days after cellphone video showed Martin’s questionable behavior while arresting Craig and her two daughters.

“Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy,” Justice Jacques Wiener wrote. “Protecting the right to film the police promotes First Amendment principles.”

In a video posted after the 5th Circuit decision was announced Feb. 16, Turner said he “couldn’t stop smiling” when he heard the news. “I can say that I’m very, very proud we were able to accomplish this. … The news was like sweet music to my ears,” Turner said on the video.

Protecting the right to film the police promotes First Amendment principles.

Appeals Court Justice Jacques Wiener

An Austin attorney praised the 5th Circuit’s ruling, saying it was nice to see the conservative New Orleans appellate court join other “freedom-loving court circuits” in the United States in protecting this activity, adding that officers who are acting appropriately have nothing to fear.

“Being a public servant like a police officer means being held accountable, as uncomfortable as that may be at times. What better way to base accountability on the truth than having a video recording?” said Bill Aleshire, an attorney who focuses on government transparency and accountability. “With the cops wearing body cams and citizens doing their own recording, the evidence of what happened is right there to relive.”

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Activist’s encounter with Fort Worth police becomes key part of 5th Circuit ruling (Part 1)

Phillip Turner’s 2015 encounter with Fort Worth police outside an east-side police substation is having a far-reaching impact after the federal 5th Circuit Court of Appeals this month used Turner’s case to clear up any question that videotaping or filming

Ken East, an attorney representing one of the officers involved in the case, declined to comment. But in a brief filed with the 5th Circuit, he describes Turner as someone who “spends much of his time trying to entrap police officers” into detaining him, resulting in litigation where he can seek financial gain.

East also stated in his appellate brief that at the time of the incident in Fort Worth, there was not a “general right to photograph or video record police and the topic continues to be highly disputed nationwide, with many courts, even in the past two years, repeatedly finding the absence of clearly established law on the topic.”

He also noted that in June 2015 Dallas police headquarters was attacked by someone with high-caliber weapons and pipe bombs driving an armored vehicle. Four days before Turner was detained, a gunman ambushed, shot and killed a Harris County sheriff’s deputy who was putting gas in his patrol car.

Turner, a computer science major at Austin Community College, started collecting video of police activities after he said a Cedar Park police officer blocked his view when filming a DUI arrest several years ago. He filed a complaint and during an investigation learned that there wasn’t an established right to film the police.

Armed with his understanding of the law, Turner — also known as “The Battousai,” a reference to an assassin in a Japanese anime series — has since posted a series of videos on his website where he challenges police officers and police department policies on videotaping of their activities.

There is nothing wrong with it, and the officers know there is nothing wrong with it. I’m not antagonizing. I’m not yelling and provoking them to come over.

Phillip Turner on videotaping police stations

Turner has made videos in Arlington, Austin, Dallas, San Antonio and other cities with mixed results. Often police officers come out and ask Turner what he is doing and ask for his identification. Turner will say very little, but will tell them he is shooting pictures and refuses to ID himself. Sometimes Turner walks away; other times he is detained.

“The quickest way to test their policy is to take a photo of the police department, of the building and police cars,” Turner said in an interview. “There is nothing wrong with it, and the officers know there is nothing wrong with it. I’m not antagonizing. I’m not yelling and provoking them to come over.”

In September 2015, Turner decided to conduct one of his “First Amendment Audits” outside the police station at 1100 Nashville Ave. on Fort Worth’s east side. Turner stood across the street on the sidewalk and began videotaping. He was dressed in basketball shorts, a T-shirt, a hat and tennis shoes.

After a few minutes, Turner was approached by officers Grinalds and Dyess, who asked him what he was doing and said they like to know “who’s surrounding our complexes,” according to court records. They asked for his identification. Turner refused to cooperate and asked what would happen to him. The officers responded: “We’ll cross that bridge when we come to it.”

Activist’s encounter with Fort Worth police becomes key part of 5th Circuit ruling (Part 2)

After repeatedly being told by Grinalds and Dyess that he was forcing their hand, Turner’s video camera was taken away, and he was handcuffed and placed in the back of a squad car. “This is what happens when you don’t ID yourself,” Grinalds is quoted in court records as saying.

Turner stayed in the squad car until the officers’ supervisor, Lt. Driver, arrived. After Driver discussed the situation with Grinalds and Dyess, Turner was released and his video camera returned. Turner never produced any identification, but was warned that he would be arrested if he trespassed on city property, court records state.

In 2015, Turner filed a federal civil-rights lawsuit against the police officers, claiming that they violated his First Amendment rights and that he was wrongfully detained.

In February 2016, U.S. District Judge John McBryde dismissed the case, giving the officers the qualified immunity that insulates a government official from legal action when they believe that the actions they are taking are lawful. He also said that the courts had not fully addressed and protected Turner’s First Amendment right to videotape the police.

McBryde said there is nothing in case law to suggest that police officers are constitutionally prohibited from taking reasonable steps to identify someone videotaping their place of work. “In this day and age, the risk to public officials, particularly police officers, is such that a police officer could reasonably believe that he had a right to require [Turner] to identify himself,” McBryde wrote.

But the 5th Circuit, which hears appeals of cases from Texas, Louisiana and Mississippi courts, agreed and disagreed with McBryde. In a 2-1 decision, it cleared Grinalds, Dyess and Driver of any First Amendment violations because it was unclear at the time — despite other appellate-court rulings — if individuals could videotape police officers at work.

The significance, of course, is that with the advent of the smartphone over the last few years, everybody now has the ability to video and you have a population carrying with them a camera that you didn’t have as recently as 10 years ago.

Houston attorney Philip Hilder

The 5th Circuit wanted it to be clear in its future cases that it, too, now considered such activity to be protected, saying that “a First Amendment right to record the police does exist, subject only to reasonable time, place and manner restrictions,” Wiener wrote in an opinion joined by Justice Stephen Higginson.

The court sent the case back to McBryde to examine Turner’s claims that he was unlawfully arrested by Grinalds and Dyess. The court cleared Driver on that point, determining he acted appropriately. In her dissent, Justice Edith Clements said Turner’s First Amendment rights were not violated and that the officers acted reasonably in detaining Turner.

Turner’s attorney Kervyn Altaffer called the 5th Circuit’s ruling a significant one in a complicated area of the law.

“I think any time one of the federal court of appeals says that something is protected by the Constitution, that is important for all people,” Altaffer said. “I definitely think they [the police] overstepped. … This is supposed to be a free country.”

Houston attorney Philip Hilder, a former federal prosecutor and a member of the city of Houston Police Oversight Board, said the court ruling “underscores and reiterates that citizens have the right to video police officers as long as the filming isn’t unreasonable and doesn’t affect police operations.

“The significance, of course, is that with the advent of the smartphone over the last few years, everybody now has the ability to video and you have a population carrying with them a camera that you didn’t have as recently as 10 years ago.”

Staff writer Ryan Osborne contributed to this report.

Max B. Baker: 817-390-7714, @MaxbakerBB

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