By Todd Duncan, Law Enforcement and Safety Specialist
As a law enforcement officer, your sworn oath to support the Constitution means understanding and honoring citizens’ civil rights, including those established by the First Amendment. The First Amendment prohibits the government, including law enforcement, from restricting freedom of speech, the press, or the right to peaceably assemble and petition the government. Many courts have specifically interpreted the First Amendment to protect the right of citizens to film law enforcement activities in public places.
The Right to Free Speech and Assembly
The U.S. Supreme Court “has repeatedly held that law enforcement officers may not interfere with orderly, non-violent protests merely because they disagree with the content of the speech or because they simply fear possible disorder.” Jones v. Parmley, 465 F. 3d 46, 57 (2d Cir. 2006) (citing, Cox v. State of Louisiana, 379 U.S. 536 (1965)). However, once a protest reaches a point that poses a “clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order,” law enforcement may take action to disperse those protests. See Parmley, at 57-58 (citing Cantwell v. Connecticut, 310 U.S. 296 (1940)).
Use of Force During Demonstrations, Protests, Riots
Under the U.S. Constitution, the use of force by law enforcement during riots, protests, or demonstrations is governed by the same legal standard that applies to any other law enforcement encounter. As established by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989), all uses of force are evaluated under the Fourth Amendment’s objective reasonableness standard, which asks whether the deputy’s actions were reasonable from the perspective of a similarly trained deputy on the scene, given the facts and circumstances known at the time. The existence of a crowd, heightened tension, or civil disorder does not lower this standard or create a separate legal rule. Under Graham, each application of force must be justified based on:
- The severity of the offense,
- Whether the individual poses an immediate threat, and
- Whether the individual is actively resisting or attempting to flee, without the benefit of hindsight.
The Public’s Right to Record Law Enforcement
The U.S. Supreme Court has not yet issued a decision squarely holding that citizens have a First Amendment right to record (film) law enforcement officers, but its precedent makes clear that peaceful observation and documentation of law enforcement activity in public is protected expressive conduct. In City of Houston v. Hill, 482 U.S. 451 (1987), the Court emphasized that the First Amendment protects the right of citizens to observe, criticize, and challenge law enforcement action without fear of arrest, recognizing that officers must tolerate scrutiny and public oversight. The Eighth Circuit Court of Appeals, which sets binding legal precedent for Nebraska officers, has likewise referred to citizens’ right to observe police-citizen interactions without interference, albeit in the context of a Fourth Amendment analysis. Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020). Several other federal courts have discussed that recording law enforcement officers in public is a protected means of gathering information about government officials performing their duties, so long as the recording does not interfere with lawful police activity. Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).
Ultimately, effective policing and constitutional policing are inseparable. Upholding the constitutional rights of citizens is not a barrier to public safety, it is the foundation of legitimacy, trust, and lawful authority. When deputies respect constitutional limits, they protect not only the public they serve, but also themselves, their agencies, and the rule of law. In every encounter, adherence to the Constitution reinforces the principle that law enforcement authority exists to safeguard rights, not to override them, and a cautious approach goes a long way toward minimizing liability risks.
Need a policy on crowd management or recording law enforcement activity? Contact NIRMA at (402) 742-9238 or email Todd Duncan at tduncan@nirma.info.
Stay professional. Stay accountable. Protect the badge.
