The Cincinnati Enquirer has reported on the uptick in detentions by the United States Immigration and Customs Enforcement ("ICE") since President Trump's inauguration. ICE is coming whether we like it or not.
I won't opine on the propriety of President Trump's policy here. The purpose of this column is more practical. And the subject is whether citizens may record ICE in action. This matters because ICE, like any law enforcement body, needs to operate openly. This cuts both ways. If ICE is acting illegally or inappropriately, we have a right to know. And if ICE is proceeding by the book, we should know that too. Either way, the information is valuable.
So, getting back to my question whether citizens may record ICE in action, the short answer is yes. While the United States Supreme Court has not yet weighed in, numerous Federal Appellate Courts have held that there is a First Amendment right to record law enforcement officers exercising their official duties. Nine of twelve Circuit Courts have made this point clear. In a decision from the First Circuit, the court noted "[g]athering 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.'”
As to video recording, there isn't much debate – assuming the recording is done in a public area, there is no right to privacy for anyone involved – either the ICE officers or the detainee. The question of recording audio presents a slightly different question. Some states require the consent of all parties to a conversation to record. Most states, however, including Ohio, Kentucky and Indiana, only require the consent of one party. In addition, the "two party consent" rule typically applies to private conversations, not those audible to the general public.
It’s also important not to take too seriously Border Czar Tom Homan's threat to prosecute publicizing photos of ICE agents. Again, the First Amendment protects the right to record and disseminate video of law enforcement officers exercising their official duties. In a contest between a Czar and the Bill of Rights, the Bill of Rights wins.
Citizens may not interfere with ICE agents performing their duties. But this does not mean that ICE may arbitrarily push citizens out of camera range. Citizens may get as close to the action as they wish, so long as they don't impede the ICE agents. A federal judge in Louisiana recently enjoined enforcement of a statute that made it a crime to approach within 25 feet of a law enforcement officer after being told to stay back. The court held that the statute was unconstitutionally vague and “allows for arbitrary and discriminatory enforcement.”
It's also important to remember that ICE agents can't confiscate a citizen's phone or review its contents without a warrant. Without a warrant, ICE may not compel a citizen to unlock a phone or provide a password.
Assuming ICE agents are performing their duties properly, one would assume they'd appreciate being videotaped. But the reality is, cops frequently get camera shy. It's important to remember that your right to record trumps ICE's desire to be left alone.
