Activist Antonio Buehler scored a legal victory this week when a federal judge declined to dismiss his lawsuit against the Austin Police Department, ruling he had a clearly established constitutional right to photograph and film officers when they arrested him multiple times while videotaping authorities.
In an order filed Thursday, U.S. Magistrate Judge Mark Lane found all private citizens have the right to record officers in public places as they perform their official duties, so long as they don’t interfere, and that the officers in Buehler’s case weren’t immune from allegations that they had detained and searched him without probable cause.
Lane said the city and Police Department could not escape liability for failing to establish a policy and provide training addressing how officers should proceed when citizens videotape or photograph them, according to the memorandum filed in the U.S. Western District of Texas. He rejected Buehler’s claims of excessive force and malicious prosecution.
The case has garnered the attention of activists and journalists as the U.S. Supreme Court hasn’t ruled on the right to record officers, and it has fallen on federal appeals courts to determine the law.
The city, which had sought to have the civil case dismissed on the grounds that filming officers wasn’t a recognized constitutional right, can appeal the judge’s decision to the 5th U.S. Circuit Court of Appeals. If its petition is denied, the case moves forward until a settlement is reached or the parties go to trial.
Police officials referred comment to the city attorney, who didn’t return calls Friday.
Daphne Silverman, Buehler’s lawyer, said she and her client were pleased with Lane’s detailed analysis in support of his constitutional rights. “This ruling is a clear signal to law enforcement that the public can now photograph and videotape police officers so long as they don’t interfere with the officer’s duties,” she said.
Buehler said he hopes his case exposes corruption endemic within the Police Department in Austin and in those nationwide. “Every one of my arrests has been unjust,” he said.
The 37-year-old Army veteran has been in a dispute with the department since officers arrested him New Year’s Day 2012 as he videotaped a woman being arrested in the parking lot of a convenience store on Lamar and 10th Street. Buehler has said he was trying to capture the officers abusing the driver and her passenger, and he later founded the Peaceful Streets Project, whose members record police encounters and post them online.
Buehler was arrested two more times in August and September 2012 while filming officers.
His civil complaint filed on the last day of 2013 came more than four months after a Travis County grand jury cleared Buehler and officer Patrick Oborski of felony charges in the January 2012 incident.
The National Press Photographers Association in May filed an amicus brief in support of Buehler’s civil case, which the organization says is “part of a nationwide phenomenon where police have interfered with citizens’ rights to photograph and video-record officers engaged in official business in public spaces.”
Mickey Osterreicher, general counsel for the association, said he contacted Police Chief Art Acevedo several times in 2012 and 2013 to offer help at no cost with instituting guidelines and training on how officers should interact with citizens who are filming them.
“We had very cordial exchanges by email,” he said. “We got some promises but never had anything substantive.”