Firm Wins Reversal on Right to Record Police in Boynton Beach Appeal

It's been a long journey for Tasha Ford. In 2009, Boynton Beach police arrested her for wiretapping and obstruction because she refused to stop recording them with her phone as they arrested her minor son. She sued for false arrest, but after 10 years of litigation, the City won its motion for summary judgment.

We appealed in late 2019. A few months ago, the Fourth District Court of Appeal affirmed the trial court's decision over a blistering dissent from Judge Martha Warner.

You can read some of the coverage here:

• https://www.palmbeachpost.com/story/news/2021/05/08/state-appeals-court-rejects-appeal-mom-who-filmed-cops-cuffing-son/5006605001/

• https://www.sun-sentinel.com/local/palm-beach/fl-ne-police-videorecording-public-lawsuit-appeal-ss-prem-20201214-tbomhpwnyjbizjhfhnmgnr7ewi-story.html

• https://cbs12.com/news/local/the-legal-battle-continues-over-recording-police-in-florida

• https://www.tampabay.com/opinion/2021/05/06/videotaping-police-officers-is-a-valuable-tool-in-florida-lets-keep-it-that-way-editorial/

• https://www.tampabay.com/news/2021/05/05/think-twice-before-you-whip-out-your-phone-and-record-a-cop-in-florida-you-could-be-arrested/

• https://www.orlandosentinel.com/opinion/editorials/os-op-editorial-recording-police-court-ruling-20210512-sdwgo4ebkrhj5mxayw2wbntvda-story.html

• https://www.palmbeachpost.com/story/opinion/editorials/2021/06/20/court-should-affirm-citizens-right-videotape-police-editorial/7728969002/

We filed a motion for rehearing, rehearing en banc, and for certification of a question of great public importance. That motion was supported by an amicus brief joined by the ACLU, the NLG, the Center for Freedom of Information, and numerous other First Amendment and journalistic-freedom advocacy organizations.

Today, in another split decision, the Fourth DCA granted our motion for rehearing, withdrew its previous opinion, and reversed the trial court's decision. Here’s the key ruling:

Because as a matter of law the officers could not have had a reasonable “expectation that such communication is not subject to interception under circumstances justifying such expectation” as required by the wiretap statute, section 934.03(1)(a), Florida Statutes (2009), and section 934.02(2), Florida Statutes (2009), there was no probable cause to arrest appellant for violation of the wiretap statute. Further, the officers did not have probable cause to arrest appellant for obstruction, because her words and actions did not constitute obstruction of the officers in the performance of their duties. Therefore, we reverse the summary judgment and remand for further proceedings.

Here is some key reasoning from Judge Warner’s concurrence:

A rule otherwise would mean that everyone who pulls out a cell phone to record an interaction with police, whether as a bystander, a witness, or a suspect, is committing a crime. Given how important cell phone videos have been for police accountability across the nation, I do not believe that society is ready to recognize that the recording of those interactions, which include audio recordings, are somehow subject to the officer’s right of privacy. If that were the case, then had the individual who recorded George Floyd saying to the officers “I can’t breathe” been in Florida, she would have been guilty of a crime.

Ms. Ford deserves this win. She was right all along: she had every right to record the public detention of her son, and the police had no right to arrest her for refusing to stop recording, or for obstruction, when she never physically obstructed them.

This opinion is also a win for all Floridians, because it affirms our right to record police in public places while performing their official duties.