MRR Law Enforcement Blog

When Filming is a Protected First Amendment Right

In 2014, the United States District Court, Northern District of Ohio, determined that citizens have a clearly established constitutional right to film police officers performing their duties. See Crawford v. Geiger, 996 F.Supp.2d 603 (N.D. Ohio 2014). Federal courts across the country, including the First, Seventh, Ninth, and Eleventh Circuit Courts of Appeal, have upheld an individual’s right to record officers. Id. at 617. The opinion in Crawford noted that freedom of the press gives the general public the right to record events considered “newsworthy.” New technology allows for almost instantaneous distribution of this newsworthy content. Id. at 61.

At the time of the decision in Crawford, no federal appellate court considering the issue had ruled against a citizen filming police. Id. at 617. While recognizing a constitutional right to film police officers, the right is not absolute. “[A]s of August 26, 2012, the right of a citizen to film police activity in a public setting where there was no present danger of harm to officers or others was clearly established.” Id. at 616.

An individual in the Northern District of Ohio has a constitutionally protected right to record an officer performing his or her duties. However, officers can limit recordings when members of the public actually interfere with police activities, create an unsafe environment, or prevent officers from doing their jobs. Annoyance at the presence of a news-gathering citizen is not enough to limit filming. If a citizen creates a dangerous situation by recording an officer’s activities, the officer should ask the citizen to stop recording; however, the officer should not take the recording device and/or search it without a warrant. Failure to obtain a search warrant may result in additional constitutional violations. Public policy favors dissemination of information on government action, which is reinforced with the decision in Crawford protecting the public’s right to record police officers.


U.S. Supreme Court rules “Qualified Immunity” in Mullinex v. Luna

By: James A. Climer, Esq.

Police use of deadly force has been a hot topic in the news recently. Events like the Ferguson, Missouri riots and the shooting of Tamir Rice as well as the Michael Brelo verdict in Cleveland have spurred countless news stories, blog posts and editorials concerning the propriety of police officers’ use of deadly force. The writers of these pieces have a luxury that police officers do not have when they encounter dangerous situations: time for thought and study. How can law enforcement officers avoid civil liability under 42 USC § 1983 when courts, attorneys and others have hours to sift through reams of confusing and sometimes conflicting cases to determine the proper legal course of action, while officers often have only a few seconds in chaotic situations to decide what to do? That’s the reason for the affirmative defense called qualified good faith immunity.

Qualified immunity protects public officials carrying out discretionary functions from civil liability for monetary damages under § 1983 unless their actions are prohibited by “clearly established law.” In other words, if the judges and lawyers can’t agree on what the law is, police officers and other public officials shouldn’t be called to task after the fact for violating it.

The U.S. Supreme Court recently reminded courts and the bar how to determine whether law is “clearly established” for purposes of qualified immunity in Mullenix v. Luna, 577 U.S. ___ (2015). In Mullenix, Tulia, Texas police attempted to execute an arrest warrant for a man spotted at a drive-in restaurant. They were led on a high-speed chase during which the suspect, who appeared to be intoxicated, reached speeds of 85 to 110 miles per hour and told a Tulia police dispatcher that he would shoot at police officers if the pursuit was not abandoned.

Tulia police set up tire spikes in three locations in an attempt to stop the suspect. Trooper Mullenix of the Texas Department of Public Safety also responded to the pursuit, intending to set up tire spikes near an overpass. After learning that officers were already setting out tire spikes near the overpass, Trooper Mullenix became concerned for their safety given the suspect’s threats, and Mullenix considered shooting at the suspect’s car to disable it. Trooper Mullenix asked for permission from a supervisor to carry out his plan but it was unclear whether he heard the supervisor tell him to see if the spikes worked first. Before the suspect reached the tire spikes, Trooper Mullenix shot at the suspect’s car, apparently intending to disable it, but instead hit the suspect causing his death.

The suspect’s estate sued Trooper Mullenix under 42 USC § 1983 alleging the use of excessive force in violation of the Fourth Amendment. The trial court denied a motion for summary judgment asserting qualified immunity on behalf of Trooper Mullenix and the Fifth Circuit Court of Appeals affirmed.

The Supreme Court reversed and found that Trooper Mullenix was entitled to qualified immunity. The Court first made it clear that it was only addressing the qualified immunity issue and not whether a constitutional violation had occurred. Id. at 4. The Court then rejected the basis asserted by the Fifth Circuit for its decision, the generalized principle that a police officer may not “use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.” Id. at 5-6.

Instead, the Court reminded the bench and bar that the correct inquiry is whether the law prohibited the officer’s conduct in the “situation [she] confronted.” Id. at 6 citing Brosseau v. Haugen, 543 U.S. 194, 199. While case law does not need to exactly match the facts of the case under consideration, it must be clear enough to indicate to a reasonably competent officer that his/her actions are illegal “beyond debate.” Id. at 7. Noting that it had never ruled the use of deadly force to be illegal in a vehicular pursuit, Id. at 8, the Court further reviewed a number of decisions from other courts and found that they created at best a “hazy legal backdrop” against which to judge the actions of Trooper Mullenix. Given this uncertainty in the law, Trooper Mullenix should have been granted qualified immunity.

Mullenix does not represent a major shift in the law. However, it does provide a strong reminder to the bench, bar and public officials that qualified immunity should be granted unless case law indisputably establishes that an official’s actions are illegal.

For questions or more information on “U.S. Supreme Court rules ‘Qualified Immunity’ in Mullinex v. Luna,” contact:

James A. Climer  – MRR Cleveland
Phone: 440.287.8290



Law Enforcement and the ADA

By: Casey C. Stansbury, Esq.

Law enforcement officers encounter individuals with disabilities nearly every day. These disabilities may include people who are deaf or hard of hearing, people with epilepsy or cerebral palsy, persons with autism or Asperger’s, and persons with psychiatric difficulties. However, case law across the country has been inconsistent in determining the circumstances under which police can be held liable when dealing with a person with a mental disability. Questions frequently arise when police interact with individuals who may be protected by the Americans with Disabilities Act (“ADA”). The most recent United States Supreme Court case to deal with these issues is Sheehan v. the City and County of San Francisco.

In Sheehan, the Court was asked to determine whether two San Francisco police officers could be sued over their use of force when arresting a knife-wielding woman with a history of mental illness in a confrontation in which the woman was shot multiple times. In the 6-2 decision released in May of this year, the Court granted the officers qualified immunity on the Plaintiff’s Fourth Amendment claim. However, the Court did not address whether the officers should have provided the Plaintiff with “accommodations” or taken special precautions under the ADA because of her disability.

Cases like Sheehan are extremely fact-intensive and ADA concerns merit special attention by law enforcement departments in training and development of official policies and procedures as well as consideration by officers in the field when encountering members of the public with suspected disabilities. This blog will be updated with developments in this rapidly changing area of law.

For questions or more information on “Law Enforcement and the ADA,” contact:

Casey C. Stansbury  – MRR Lexington
Phone: 800.936.9198
Fax: 440.248.8861

The Private Search Doctrine and Digital Evidence

By: MRR Law Enforcement Blog

In this current digital era, nearly everyone carries around a small, personal computer at almost all times. With this, evidence of a crime can be captured, and deleted, with just one push of a button. It also means that law enforcement personnel are facing a rapidly evolving environment of digital evidence.

What should an officer do after receiving a phone call from a man concerned about photos he found on his roommate’s computer? Prior to the computer being viewed by a police officer, there have been no violations of the Fourth Amendment right against unreasonable search and seizure. This is because of the private search doctrine. The private search doctrine provides that the Fourth Amendment right to be free from unreasonable search and seizure is inapplicable to a search effectuated by a private person, not acting as an agent of the government. While this rule is not universally applicable, the Northern District of Ohio recently held that the private search doctrine applies to searches of computers.

The question then becomes, how can an officer react to the roommate’s report? Can the officer document the statements made by the concerned roommate? Sure. Should the officer consider the information in the determination of probable cause to secure a search warrant? Yes. If the individual shows the officer a photo, may the officer look at it? Of course. Can the officer ask the roommate to further search the computer to find more information? No. By acting at the instruction of the officer, the roommate would likely be acting as an agent of the government. This would mean that a government search was being conducted, not a private search. And ultimately the evidence found could be ruled inadmissible in a criminal trial. The line when a private search turns into a government search is an important one.

Law enforcement personnel need to stay up-to-date on the various laws applicable to digital evidence, or they risk rulings of inadmissible evidence. The private search doctrine is just one of those laws. It is also important to distinguish between the various formats of digital evidence. Electronic messages, such as emails and text messages, are protected by other laws, including the Stored Communications Act. The landscape of digital evidence will likely continue to evolve and shift for years to come.

For more information on the private search doctrine, see US v. Lichtenberger, 19 F. Supp. 3d. 753 (N.D. Ohio 2014).

For questions or more information on “The Private Search Doctrine and Digital Evidence,” contact:

David M. Smith, Esq.
MRR Law Enforcement Blog Editor


Make Your Training Dollars Count – How to Train on What Really Matters

By: Tami Zupkow Hannon, Esq.

I often get asked what topics to train on when faced with limited resources. These questions frequently overlap lawsuits alleging little or no training. It is virtually impossible to train on every possible situation. So how do you make those training dollars count?

The following areas draw the most lawsuits and are always good subjects for training:

  • Use of Force – the continuum, going up AND down the continuum in response to changing situations, the use of deadly force;
  • Providing Medical Care – recognizing and documenting an individual’s appearance and any medical care provided both in the corrections and arrest setting;
  • Report Writing – I’ll admit I have never seen a lawsuit alleging negligent report writing, but I have seen many a lawsuit stemming from a poorly written report. Review what should and should not be in a report;
  • Probable Cause for an arrest;
  • Seizures – determining when stops are appropriate and the limits of each type of stop – traffic, consensual, reasonable suspicion, warrant-less arrests;
  • Searches – what searches go with what seizures – frisk, inventory, incident to arrest, etc., executing a search warrant;
  • Interactions with the Disabled – this issue is becoming more prevalent. Discuss how to recognize and respond to someone with a medical or mental health issue;
  • Evidence – handling, preserving and logging, scene preservation;
  • Harassment and Discrimination – in interactions with citizens, arrestees, detainees and prisoners, AND coworkers;
  • Internal Reviews and Investigations – designate and train appropriate officers on conducting internal reviews of incidents to ensure policies are followed and appropriate discipline given.

Outside of (or even within) these areas, review the calls you routinely handle and the most frequent situations that arise. Train your officers on handling those calls. Next, look to the less frequent but larger issues – perhaps non-English speakers, rapes, or shootings – and train officers to manage those as well. Training on the most infrequently occurring issues can similarly be less frequent.

For questions or more information on “Make Your Training Dollars Count – How to Train on What Really Matters,” contact:

Tami Hannnon

Tami Zupkow Hannon
  – MRR Cleveland
Phone: 440.424.0009
Fax: 440.248.8861