By Christopher Dunn
As the country is bludgeoned by one video after another capturing police officers assaulting and even killing unarmed civilians – typically black men – we are in the midst of a national debate about proposals to curb police misconduct, ranging from body cameras to grand jury reform. As important and necessary as are reforms of police practices and criminal justice processes, it also is important to consider the options available to civilians who are on the scene and witnessing police action.
Videotape available to anyone with an Internet connection routinely shows encounters in which police officers seize a person for a minor offense but nonetheless resort to excessive – and sometimes deadly – physical force that the person tries to defend against, with the Eric Garner video being the most dramatic example from New York. In many instances, the ensuing fracas leads to bystanders rushing in and surrounding the officers, creating a tense and dangerous situation for everyone. And, of course, civilians routinely pull out smartphones to videotape the struggle.
This all-too-common scenario raises important questions about the rights of civilians to resist police action to protect themselves, to physically intervene in police action to assist a person being assaulted by officers, and to videotape police action. Many may be surprised by the state of the law governing these different options.
The Right to Resist or Rescue
As exemplified by the Eric Garner incident, police union officials often argue that civilian injuries arising from police action result not from officer excesses but from civilians resisting efforts to arrest them. While it is unlawful to resist arrest, in New York that does not mean civilians are legally barred from defending themselves from officer assault nor does it mean that bystanders are barred from inserting themselves into arrest situations to defend a civilian who is being assaulted.
On their face, New York statutes seem to give civilians few options. Section 205.30 of the Penal Law makes it a misdemeanor to resist a lawful arrest, with resisting occurring when a person “intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.1 Separately, section 35.27 broadly bars the use of physical force in resisting arrest: “A person may not use physical force to resist arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer . . . ."2 With these provisions applying to persons being arrested and to bystanders who attempt to intervene in an arrest,3 they seem to legally bar those being arrested or witnessing an arrest from resisting or interfering with the arrest in general and from using physical force to do so in particular.
Nonetheless, a third Penal Law provision raises the prospect of an opening for civilians. Specifically, section 35.15 provides in relevant part, “A person may . . . use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.”
Precious few reported cases discuss section 35.15’s authorization of force in the context of police arrests. Perhaps the most significant one dates back to 1972, when the New York Court of Appeals decided People v. Stevenson4 (in which the NYCLU appeared as amicus curiae). Like several of the recent notorious incidents of police killings, the Stevenson case arose out of a minor traffic matter and then escalated. As the Court of Appeals explained,
While performing [an] errand, defendant was driving unlicensed and had no registration for the vehicle. At 125th Street and Park Avenue, he stopped to get frankfurters and a drink for his two passengers. When he returned with the food, he noticed Officer Davis leaning inside the car. The officer asked for his license and registration and “I asked him what was wrong and he said I was obstructing traffic and I said I wasn’t. So he said ‘Give me your license and registration.’ And I said, ‘Just a minute.’ And I put my hand inside the car to give the franks and drinks to the people inside and he pushed me ... I asked him why is he pushing me for. He asked me [again] for my registration, so what -- you know, what is he edging me on for? ... So I said ‘Why?’ I kept on asking him why. He said, ‘You are under arrest.’ I said, ‘No, for what?’ ... he just kept on saying, ‘No, you are under arrest,’ and was grabbing for me.” He then noticed two other police officers approaching the scene with one of the officers wielding his “stick”. Afraid that he was going to be beaten, he grabbed Officer Davis by the shoulders and swung him around so that he was between him and the oncoming officers. “Please don’t let them hit me,” he told Davis. “If there is something wrong, I'll go with you but don't let them hit me.” He stated he never punched or kicked any of the officers, but that he was kicked and hit. After several other officers had joined the fracas, he was taken to the precinct house.
Among other offenses, Stevenson was charged with and convicted of resisting arrest. In the Court of Appeals, he argued the trial court had improperly failed to instruct the jury of the availability of a justification defense under Penal Law section 35.15. Citing that section, the Court of Appeals agreed that “there can be no cavil with the proposition that a citizen may use reasonable force in self-defense where the force exerted by the police in effecting an arrest is excessive.” (Nonetheless, it affirmed the conviction on the grounds that Stevenson had resisted arrest before any threat posed by the officers presented itself, rendering “moot” any justification defense Stevenson might have had for his use of force later in the interaction.)
In stating that a citizen could invoke section 35.15 to justify the use of physical force to resist excessive force by a police officer, the Court of Appeals cited a single New York case, an Appellate Division decision from a year earlier. In People v. Sanza,5 the Second Department reversed a conviction because the trial court had failed to instruct the jury that the defendant was entitled to use physical force to defend himself from a police assault. Notwithstanding the seemingly broad sweep of Penal Law section 35.27’s bar on the use of force to resist arrest, the Second Department held,
Where the evidence adduced at the trial permits the inference that the defendant was the victim . . . of the use of excessive physical force to effectuate an arrest, he is entitled to a charge that reasonable acts of self-defense are justifiable. In the case at bar this rule applies to both the charge of assault in the second degree and to the charge of resisting arrest, despite section 35.27 of the Penal Law. The purpose of that section is merely to prevent combat arising out of a dispute over the validity of an arrest and does not prevent an individual from protecting himself from an unjustified beating (emphasis added).
Confirming the currency of Stevenson and Sanza, the Second Circuit recently cited them in rejecting a claim that Penal Law section 35.27 barred a civilian from trying to grab the nightsticks of police officers who were beating him without justification.6 And under these two cases, New York law allows those facing arrest to use physical force to defend themselves
The Right to Videotape
While many may be surprised that New York law allows civilians to use force against police officers in some arrest circumstances, many may also be surprised to learn that neither the Supreme Court nor the Second Circuit has addressed the issue of the constitutional right to videotape police misconduct, and the local federal District Courts are deeply split about the extent to which the right is established. Moreover, only one federal Court of Appeals – the First Circuit – has analyzed in any detail the First Amendment right to videotape an arrest.
Glick v. Cunniffe7 arose out of the arrest of Simon Glick for using his cell phone camera to film police officers arresting a young man on the Boston Common in 2007. Concerned that the officers were using excessive force to effect the arrest, Glick alleged that he stopped about ten feet away and began recording the arrest with his phone. Officers then arrested Glick, charging him with disorderly conduct, violating the state’s wiretapping statute, and aiding in the escape of a prisoner.
After all charges were dropped, Glick brought a damages suit in federal court, claiming among other things that his arrest violated the First Amendment. The officers moved to dismiss the complaint, arguing the right to film the police was not “clearly established” and therefore that they were entitled to qualified immunity (which they would have been were the right not clearly established). In rejecting this argument, the First Circuit explained in its 2011 ruling how the right to videotape the police falls squarely within the First Amendment:
As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” An important corollary to this interest in protecting the stock of public information is that there is an undoubted right to gather news from any source by means within the law.
The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs. Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because it is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.” This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties.
Before Glick two other Circuits had summarily endorsed the idea of a First Amendment right to videotape the police in a public place,8 and since Glick one Circuit has preliminarily enjoined enforcement of a state wiretapping statute as it would apply to audiotaping public statements by police officers engaged in enforcement activity.9 But that is the extent of the federal appellate law on the subject.
As one who has spent years at heavily policed events and who has genuine respect for the difficult job faced by police officers, I am loathe to suggest that people facing arrest fight back or that bystanders throw themselves into arrest situations, which in most instances will lead to their being arrested and perhaps even assaulted. On the other hand, the litany of recent videos compels responsible people to ask what they can and should do when faced with officers using excessive physical force. After all, query whether Eric Garner would be alive today had bystanders inserted themselves after his repeated plea, “I can’t breathe.” New York law would have allowed them to do so.
Likewise, civilians plainly have a right to film the police, and I view the relative lack of caselaw on the subject simply to reflect the self-evident nature of the proposition. As the recent spate of videos makes clear, videotaping police actions is vitally important, and civilians should videotape freely so long as they do so from a safe distance and do not interfere with valid arrest activity.
*Christopher Dunn is the associate legal director of the New York Civil Liberties Union. He can be reached at firstname.lastname@example.orgFootnotes1 Penal Law § 205.30.
2 Penal Law § 35.27 (emphasis added).
3See, e.g., People v. Stevenson, 31 N.Y.2d 108 (1972); People v. Addickes,30 N.Y.2d 461 (1972).
4 31 N.Y.2d 108 (1972).
5 37 A.D.2d 632 (App. Div., 2d Dept. 1971).
6 See McLaurin v Falcone, 2007 WL 247728 (2nd Cir. Jan. 25, 2007).
7 655 F.3d 78 (2011).
8 See Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).
9 See ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012).