Federal Jury Says Cops Can’t Arrest People for Recording Police Encounters

by Jacob Sullum

Last week a federal jury in Oregon awarded damages to an environmental activist who sued the city of Eugene after a police officer seized his video camera and arrested him for wiretapping. In March 2009, Josh Schlossberg was distributing leaflets outside Umpqua Bank in downtown Eugene when Sgt. Bill Solesbee told him to move along. Schlossberg replied that his lawyer had advised him he was not breaking any laws. Solesbee then entered the bank and came back out. When he approached Schlossberg again, Schlossberg took out his camera and announced that he was recording the encounter. The Oregonian describes what happened next:

Solesbee told Schlossberg he needed a permit to set up a table in front of the bank and accused him of blocking pedestrian traffic. Then he asked, “Are you taping me?” 

As the two men argued over whether Schlossberg had notified him he was shooting video, the sergeant pointed at the camera and said, “Gimme that. That’s evidence.”

Schlossberg’s lawyer [Lauren Regan] said the sergeant then charged the activist, roughly grabbed for his camera and wrenched his arm behind his back. Schlossberg was thrown to the ground, where his head struck the pavement, and felt the sergeant’s knee on his neck, Regan said.

Solesbee seized Schlossberg’s camera and arrested him. He was jailed for five hours on charges of resisting arrest and intercepting communications. Prosecutors later dismissed the charges.

Victim’s Financial Award to Goes to Lawyers

As Simon Glik did after he was arrested for recording an arrest in Boston, Schlossberg complained to the police department, which said Solesbee had not done anything unconstitutional or contrary to policy. Like Glik, Schlossberg filed a federal lawsuit to vindicate his constitutional rights when the police department was unresponsive. In a pretrial hearing U.S. Magistrate Judge Thomas Coffin ruled that Solesbee had violated the Fourth Amendment by examining the contents of Schlossberg’s camera without a warrant. As a result of last week’s verdict, in which an eight-person jury concluded that Solesbee arrested Schlossberg without probable cause and used excessive force, the city is supposed to pay Schlossberg $4,083 for injuries, $1,500 for pain and suffering, and $200,000 for legal fees.

Regarding the verdict’s broader significance, Regan tells The Oregonian, “Across the country right now, legal scholars and lawyers are just eating it up, because it’s actually a solid statement of the right to privacy in the age of technology.” The outcome also reaffirms that photography is not a crime. In both the Glik and Schlossberg cases, courts found that trumped-up wiretapping charges against people recording public events are unconstitutional. Eugene Police Chief Pete Kerns says the department has changed its policy in light of court rulings since 2009 and now discourages such arrests. Φ

Radley Balko covered “The War on Cameras” in the January 2011 issue of Reason.

Tags: police, Eugene, activist, arrest, filming, reassessment of police policy, lawyers, pain and suffering, political crimes.