Turner v. Driver

{{Short description|2017 American appeals court decision}} {{Use American English|date=October 2018}} {{Use mdy dates|date=June 2023}} {{Infobox U.S. Courts of Appeals case | Litigants = | Court = United States Court of Appeals for the Fifth Circuit | CourtSeal = Seal of the United States Court of Appeals for the Fifth Circuit.svg | ArgueDate = | ArgueYear = | DecideDate = February 16, | DecideYear = 2017<ref name="columbia" /> | FullName = | Citations = | Prior = | Subsequent = | Holding = | Judges = | Majority = | JoinMajority = | Concurrence = | JoinConcurrence = | Dissent = | JoinDissent = | LawsApplied = }} '''''Turner v. Driver''''', No. 16-10312 (5th Cir. 2017), is a 2017 decision of the United States Court of Appeals for the Fifth Circuit that affirmed the First Amendment right to record the police.<ref name="techdirt">{{Cite news|url=https://www.techdirt.com/articles/20170217/10423836736/appeals-court-says-filming-police-is-protected-first-amendment.shtml|title=Appeals Court Says Filming The Police Is Protected by the First Amendment|last=Cushing|first=Tim|date=February 21, 2017|work=Techdirt|access-date=October 1, 2018}}</ref><ref>{{Cite journal|last=Johnson|first=Stephanie|date=April 11, 2018|title=Legal Limbo: The Fifth Circuit's Decision in Turner v. Driver Fails to Clarify the Contours of the Public's First Amendment Right to Record the Police|url=https://lawdigitalcommons.bc.edu/bclr/vol59/iss9/14/|journal=Boston College Law Review|volume=29|issue=9}} Rev. E. Supp. 245</ref><ref name="columbia">{{Cite news|url=https://globalfreedomofexpression.columbia.edu/cases/turner-v-driver/|title=Turner v. Driver|work=Global Freedom of Expression|publisher=Columbia University|access-date=October 1, 2018|language=en-US}}</ref><ref>{{Cite news|url=https://arstechnica.com/tech-policy/2017/02/divided-federal-appeals-court-rules-you-have-the-right-to-film-the-police/|title=Divided federal appeals court rules you have the right to film the police|last=Kravets|first=David|date=February 23, 2017|work=Ars Technica|access-date=October 1, 2018|language=en-us}}</ref> One of the officers involved was criminally indicted for a similar incident around the same time.<ref>{{Cite news|url=https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/26/galveston-police-officer-indicted-for-searching-car-of-photography-rights-activist/|title=Galveston police officer indicted for searching car of photography rights activist|last=Volokh|first=Eugene|date=February 26, 2016|newspaper=The Washington Post|language=en|access-date=October 1, 2018}}</ref>

==Background== Philip Turner ("The Battousai", after his YouTube channel) was standing on the sidewalk, across the street from the police station, recording. Several police officers came over, including at least one police car. Turner was questioned about what he was doing. The officers then demanded he provide identification, which he refused, citing Texas law 38.02, which does not require people to identify themselves unless arrested. According to the complaint, officers put Turner in the back seat of the cruiser, since he refused to give ID, saying, "We're gonna make you sweat," and Turner demanded to speak to a supervisor. Lieutenant Driver showed up, also requesting Turner's identification, which was also refused. After a short period of time, which was not more particularly described, Turner was released.

Turner started his YouTube page on January 21, 2014.<ref name=":02">{{Cite web |title=The Battousai – YouTube |url=https://www.youtube.com/@BattousaiTvD/about |access-date=2023-02-26 |via=YouTube}}</ref> At the time of his arrest on September 1, 2015, Turner was a part-time student and a part-time employee.<ref>Am. Compl. ¶10, ECF No. 15</ref> As of February 26, 2023, Turner's Battousai YouTube page had over 100 million views.<ref name=":02" /> ''Turner v. Driver'' established the right to record police under reasonable circumstances in the Fifth Circuit.<ref name=":22">848 F.3d 678 (5th Cir. 2017)</ref>

== Facts From Turner's 9/1/2015 interaction with Fort Worth PD == Turner recorded much of his interaction with the police and posted it on his YouTube channel, Battousai.<ref name=":3">{{Citation |title=1st Amendment Audit Fort Worth PD Assaulted & Tortured 9/1/2015 |url=https://www.youtube.com/watch?v=VvPpdeqwHBs |access-date=2023-02-26 |language=en}}</ref> The beginning of the video is of Turner videotaping the Fort Worth Police Department offices located at 1100 Nashville Ave, Fort Worth, TX 76105.<ref>{{Cite web |title=Welcome to the Fort Worth Police Department |url=https://police.fortworthtexas.gov/Patrol/East |access-date=2023-02-27 |website=police.fortworthtexas.gov}}</ref> As Turner was recording, Officers Grinalds and Dyess parked their squad car across the street then approached Turner and asked him if he had an ID on him.<ref name=":3" /> Turner did not answer as the officers continued to ask about ID.<ref name=":3" /> At one point, Turner asked if he was being detained, and Officer Grinalds responded that Mr. Turner would be detained for investigation and that they were concerned with who was walking around with a camera.<ref name=":3" /> Grinald's reasoning was, "We like to know who's surrounding our complexes."<ref name=":3" /> After Turner continued to not identify himself, the two officers grabbed him and placed him under arrest.<ref name=":3" />

The officers handcuffed Turner, and Turner alleges that the officers used excessive force, which caused an injury to his wrist.<ref name=":22"/> Turner asked for a supervisor to come.<ref name=":22"/><ref name=":3" /> The rest of the interaction occurred off camera; officers placed him in the back of the squad car with the windows up.<ref name=":22"/> Once Lt. Driver came to the car, he asked Turner if he had any ID on him. Turner responded to Driver by saying that he had no obligation to give identification because he had not been lawfully arrested.<ref name=":22"/> Turner then alleges that Driver responded, "You're right," before walking away and talking to Officers Grinalds and Dyess.<ref name=":4">''Turner v. Driver'', 848 F.3d 678, 684 (5th Cir. 2017)</ref>

Lt. Driver came back to the patrol car after some time to talk with Turner.<ref name=":4" /> Turner told him, "You guys need to let me go because I haven't done anything wrong."<ref name=":4" /> Lt. Driver walked away again from the car, allegedly talked on the phone, and again spoke with officers before releasing Turner.<ref name=":4" /> When the officers released Turner out of the back seat, Turner alleges that he was lectured before the officers allowed him to leave. That is when the officers returned his camera.<ref name=":4" /> Turner, after resuming the video, shows his wrist and explains how tight the handcuffs were on him.<ref name=":02"/>

== District Court case == The District Court ruled<ref>''Turner v. Driver'', No. 4:15-CV-824-A, 2016 U.S. Dist. LEXIS 20179 (N.D. Tex. Feb. 19, 2016)</ref> that "an official is entitled to qualified immunity unless pre-existing law makes apparent the unlawfulness of the official's conduct."<ref name=":1">Turner v. Driver, 2016 U.S. Dist. LEXIS 20179, *8</ref> When determining whether the officers had qualified immunity, the court looked at (1) whether a clearly established statute or constitutional right existed at the time of the incident and (2) whether a reasonable official understood he violated the person's right.<ref>''Turner v. Driver'', No. 4:15-CV-824-A, 2016 U.S. Dist. LEXIS 20179, at *4 (N.D. Tex. Feb. 19, 2016)</ref>

In general, the court explained that the qualified immunity standard allows for mistaken judgment, but protects against officials acting under the color of law who are "plainly incompetent" or "knowingly violate the law."<ref>''Turner v. Driver'', No. 4:15-CV-824-A, 2016 U.S. Dist. LEXIS 20179, at *6 (N.D. Tex. Feb. 19, 2016)</ref> The court held that no case law, either in the Supreme Court or the Fifth Circuit, prohibits police officers "from making a reasonable inquiry and taking a reasonable step to identify an unknown person who is seen videotaping their place of work and the place where they come and go in their private vehicles."<ref name=":1" /> Their rationale was that public officials like police officers are often in danger and should take steps to ensure their safety.

The court therefore ordered that Turner's claims against Driver, Grinalds, and Dyess be dismissed, leaving only the City of Fort Worth as the defendant.<ref>''Turner v. Driver'', No. 4:15-CV-824-A, 2016 U.S. Dist. LEXIS 20179, at *10 (N.D. Tex. Feb. 19, 2016)</ref>

== First Amendment analysis == The issue was whether the public has a First Amendment right to videotape the actions of police officers.<ref>''Turner, 848 F.3d at 690''</ref><ref>Stephanie Johnson, ''Legal Limbo: the Fifth Circuit's Decision in Turner v. Driver Fails to Clarify the Countours of the Public's First Amendment Right to Record the Police'', 59 B.C. L. REV. 245, 251 (2018).</ref> The court first looked at whether the right to video record police activity was clearly established in September 2015.<ref name=":5">''Turner v. Driver'', 848 F.3d 678, 685 (5th Cir. 2017)</ref> The Court of Appeals disagreed with the district court on there being a circuit split regarding a First Amendment right to record the police in public.<ref name=":5" /> The Court of Appeals noted, that in the First, Seventh, and Eleventh Circuits, a clearly established right exists to record the police.<ref name=":5" /> However, no circuit has actually decided that the First Amendment does not protect against recording the police.<ref name=":5" /> The court also noted that the Third, Fourth, and Tenth Circuits held the right to film police activities was not "clearly established."<ref name=":5" /> However, the Fifth Circuit pointed out that those jurisdictions did not reach a decision on the issue of whether a First Amendment right to record the police exists going forward.<ref name=":5" />

The court agreed with the district court that no existing precedent placed this First Amendment constitutional question "''beyond debate''."<ref name="Turner v. Driver 2017">''Turner v. Driver'', 848 F.3d 678, 687 (5th Cir. 2017)</ref>

The court then moved on to whether the right to record is clearly established henceforth.<ref name="Turner v. Driver 2017"/> The court decided that the right should be clearly established because filming the police promotes First Amendment principles.<ref name=":6">''Turner v. Driver'', 848 F.3d 678, 690 (5th Cir. 2017)</ref> However, the court noted that recording the police "may be subject to reasonable time, place, and manner restrictions."<ref name=":6" /> They did not establish a reasonable standard regarding when it is not appropriate to record the police. The court noted that the restriction must be narrowly tailored to fit a significant governmental need, but the restriction need not be the least restrictive.<ref name=":6" />

== Qualified immunity analysis == In general, qualified immunity protects against all but the (1) plainly incompetent or (2) those who knowingly break the law.<ref>''Turner v. Driver'', 848 F.3d 678, 692 (5th Cir. 2017)</ref> To meet the burden, the court said "the plaintiff must show (1) that the official violated a statutory or constitutional right and (2) that the right was clearly established at the time of the challenged conduct."<ref name=":5"/>

The court upheld the district court's decision to give Officers Grinalds, Dyess, and Driver qualified immunity for Turner's claims under the First Amendment and the Fourth Amendment for unlawful detention.<ref name=":73">''Turner v. Driver'', 848 F.3d 678, 696 (5th Cir. 2017)</ref> They also affirmed qualified immunity as to Driver's Fourth Amendment claim for unlawful arrest. The court, however, reversed qualified immunity for unlawful arrest with regard to Grinalds and Dyess.<ref name=":73"/>

First, for a detention to be unlawful, it has to be objectively unreasonable in light of the existing law.<ref name=":8">''Turner v. Driver'', 848 F.3d 678, 691 n.58 (5th Cir. 2017)</ref> The court found that Officers Grinalds and Dyees had a reasonable suspicion to approach Turner based on their knowledge of recent violence against police officers.<ref name=":9">''Turner v. Driver'', 848 F.3d 678, 691 (5th Cir. 2017)</ref> The court believed it was reasonable for the officers to believe Turner's actions in filming the police station were suspicious enough to question and detain him briefly.<ref name=":9" />

In regards to the arrest, the court said that they limited their holding to the fact that Officers Grinalds and Dyees "could not prolong an investigative detention without an investigatory purpose."<ref name=":8" /> The court decided that Turner had made a valid Fourth Amendment claim for the purposes of defeating the two officers' summary judgment.<ref name=":10">''Turner v. Driver'', 848 F.3d 678, 695 (5th Cir. 2017)</ref> However, the court acknowledged that Grinalds and Dyees on remand, will have an opportunity to explain their actions,<ref name=":10" /> but at the stage of summary judgment, qualified immunity was not proper for them.<ref name=":10" />

However, for Driver, the court then looked at whether he violated a separate constitutional<ref name=":10" /> right since he was not there during the arrest. The court found that Driver did not unreasonably prolong the arrest based on the facts of Turner's complaint.<ref name=":10" /> They found that the complaint showed Driver "diligently pursued a means of investigation that was likely to confirm or dispel the officers' suspicions quickly."<ref name=":10" /> Due to those facts, Driver was entitled to qualified immunity on the arrest claims, as well.<ref name=":10" />

==Decision== The court found:

<blockquote>We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.<ref name="techdirt" /></blockquote>Overall, the Fifth Circuit said that when Turner was arrested, no clearly established right existed to record police officers in public, so the doctrine of qualified immunity should be used. However, in the future, the court will recognize the right to record as clearly established.<ref>'''Turner v. Driver''', 848 F.3d 678, 685, 687-88 (5th Cir. 2017)</ref><ref>Kourtni C. Douglas, ''Constitutional Law – The Applicability of Qualified Immunity versus the First Amendment Right for Civilians to Record Police Officers – Harlow v. Fitzgerald, 457 U.S. 800 (1982)'', 45 Am. J. Trial Advoc. 239,243 (2021), https://heinonline.org/HOL/P?h=hein.journals/amjtrad45&i=251.</ref> The court also reversed qualified immunity for Grinalds and Dyess regarding only Turner's Fourth Amendment claim for unlawful arrest.<ref name=":73"/>

== Turner dissent == Chief Justice Edith Brown Clement dissented from the majority's opinion that established going forward the First Amendment right to film the police in the Fifth Circuit.<ref name=":73"/> Chief Justice Brown felt that deciding this issue in this case was unnecessary because the first issue is whether the trial court properly guaranteed the officers qualified immunity.<ref name=":73" />

Judge Clement also believed, though, that the majority had inappropriately decided on what is "clear established law" based on "a high level of generality."<ref name=":11">''Turner v. Driver'', 848 F.3d 678, 697 (5th Cir. 2017)</ref> She believed that other precedents had narrowly decided that the First Amendment gave citizens the right to record the police.<ref name=":11" /> She does not believe that right extends to recording a police station, which Turner did in this case.<ref name=":11" />

== Aftermath of the decision == Some question whether ''Turner v. Driver'' now establishes a right to record the police. Other Fifth Circuit decisions followed the First Amendment analysis of ''Turner v. Driver.''<ref>''Buehler v. Dear'', 27 F.4th 969, 993 (5th Cir. 2022)</ref><ref name=":12">''Cobarobio v. Midland Cty.'', 695 F. App'x 88, 89 (5th Cir. 2017)</ref><ref>Christina Murray, ''Cameras down, Hands up: How the Supreme Court Chilled the Development of the First Amendment Right to Record the Police'', 71 MERCER L. REV. 1125 (2020).</ref>

== Subsequent decisions == Going forward, to win a First Amendment retaliation claim, the plaintiff must allege that:<blockquote>(1) he was engaged in constitutionally protected activity, (2) the officers' action caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the officers' adverse actions were substantially motivated against Plaintiff's exercise of constitutionally protected conduct.<ref name=":13">''Alexander v. City of Round Rock'', 854 F.3d 298, 308 (5th Cir. 2017)</ref><ref>''See e.g. Payton v. Town of Maringouin,'' No. 21-30440, 2022 U.S. App. LEXIS 21506, at *4 (5th Cir. Aug. 3, 2022)</ref></blockquote>This standard is found in ''Alexander v. City of Round Rock,'' which provided guidance going forward about when an officer violates a citizen's First Amendment right to record.<ref>''See e.g. Flores v. Rivas, No. EP-18-CV-297-KC, 2019 U.S. Dist. LEXIS 178034 (W.D. Tex. Aug. 11, 2019)''</ref><ref name=":13" />

In ''Buehler v. Dear'', cross-appellant Antonio Buehler appealed after the ''Turner v. Driver'' decision that made it legal to film the police in the Fifth Circuit so long as it "hinder[s] the police."<ref name=":14">27 F.4th 969, 976 (5th Cir. 2022)</ref> Even though ''Buehler''<nowiki/>'s appeal was decided on March 3, 2022, the actual incident occurred on August 2, 2015, a month before Turner's arrest.<ref name=":14" /> Therefore, the court held that regarding the First Amendment issue, no clearly established right existed (except in the Constitution of the United States) at the time Buehler recorded the police.<ref name=":14" />

Another case in the Fifth Circuit that followed ''Turner''<nowiki/>'s decision was ''Cobarobio v. Midland Cty'' where the plaintiff could not establish that at the time of his arrest in 2012, he had a First Amendment right to record the police.<ref name=":12" /> Because the First Amendment right to record the police was not established at the time, the officers had qualified immunity for their arrest.<ref name=":12" />

A Texas Western District Court in ''Flores v. Rivas'', following ''Turner'', found that the plaintiff adequately alleges a First Amendment retaliation claim against the defendant officer.<ref>''Flores v. Rivas'', No. EP-18-CV-297-KC, 2019 U.S. Dist. LEXIS 178034, at *44 (W.D. Tex. Aug. 11, 2019)</ref> In making that determination, they used the test found in ''Alexander v. City of Round Rock''.<ref name=":13" />

Also, a Third Circuit case cited ''Turner v. Driver'' as one of the cases they were joining and held that "the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public."<ref>Fields v. City of Phila., 862 F.3d 353, 356 (3d Cir. 2017).</ref><ref>{{Cite web |last=F.3d 353 |first=Recent Case : 862 |title=Fields v. City of Philadelphia |url=https://harvardlawreview.org/2018/05/fields-v-city-of-philadelphia/ |access-date=2023-04-04 |website=harvardlawreview.org |date=May 10, 2018 |language=en-US}}</ref> Before ''Fields'', the Third Circuit had previously held in 2010 that there was no clearly established right for citizens to videotape police officers during a traffic stop.<ref>Criminal and Civil Liability of Civilians and Police Officers Concerning Recording of Police Actions, 84 A.L.R.6th 89, 7</ref><ref>''Kelly v. Borough of Carlisle'', 622 F.3d 248, 262 (3d Cir. 2010)</ref>

== References == {{Reflist}}

Category:2017 in United States case law Category:United States Court of Appeals for the Fifth Circuit cases