Sixth Circuit Says No Right to Record Police Misconduct Investigations

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

The Sixth Circuit ruled this week that the First Amendment doesn't protect a right to record police misconduct investigations.

The case, Hils v. Davis, arose when the president of the police union sought to record Citizen Complaint Authority interviews of an officer in a police-misconduct investigation. The union president alleged that the Authority wasn't recording the entire interviews, so he sought to fill the gaps. The Authority prevented him from recording, and he sued.

The court examined the "many potential ways to think about this claim," including text and history of the First Amendment, precedent involving press access to public proceedings, government-employee speech, and forum analysis. It rejected the claims under them all. The fundamental problem according to the court: Authority interviews are part of non-public government investigations. The court said that the Authority has a legitimate interest in keeping the interviews under wraps while the investigation is pending, and that interviewees have other ways of voicing their concerns that the Authority is selectively recording the interviews: Say so.