Eleventh Circuit Says No Clearly Established Right to Photo Police on Highway

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eleventh Circuit ruled last week that a witness to a highway accident didn't have a clearly established right to photograph police activity on the median. The court granted an officer qualified immunity against the witness's First Amendment claim and dismissed the case.

The case, Crocker v. Beatty, arose when James Crocker stopped to take pictures of an accident on the median of I-95 in Florida. Martin County Deputy Sheriff Steven Beatty confiscated Crocker's phone and placed him in a patrol vehicle. Crocker sued, alleging a violation of his First Amendment right to free speech, among other things.

The Eleventh Circuit ruled that Beatty enjoyed qualified immunity, because Crocker had no clearly established right to photograph police activity on a highway median. The court said that circuit precedent, Smith v. City of Cumming, established only that "[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest." The court said that this was too vague a statement to create a clearly established right to photograph police "on the median of a major highway at the rapidly evolving scene of a fatal crash," in "the chaos of a fatal car crash," by "a citizen who (as we will explain shortly) might well have been photographing the incident from an unlawful vantage point" (although Beatty specifically told Crocker that he wasn't violating the law).

Judge Martin dissented, arguing that Smith clearly established the right.