Homestead Police Department (HPD), in South Florida, has myriad problems respecting the First Amendment. I went to HPD this week to serve some officers in a civil rights suit, the story was covered earlier. While entering I discovered that HPD still has not learned that photography is not a crime.
I covered HPD officer John Frank, last year, him initially claiming that I could not take his picture. He quickly backed down once I started recording the video below. HPD adopting a policy such as shown in the sign above makes it understandable that some of their officers would fail to realize that photography is not a crime.
However, HPD officers such as Tony Sincore realize that it is our right to record them and to record within the station. The below video was taken by another local victim of HPD abuse.
Photography Is Not A Crime, is not only our name as an organization, it’s the law. It is also part and parcel of our First Amendment right as Americans to gather information on governmental affairs. First, I will address briefly herein the legal issues of video recording with sound which is legally equivalent to audio recording. Then I will cover photography which is legally equivalent to video without sound.
The Florida wire tap statute, FSS. 934.03, makes it illegal to intercept an “oral communication”, i.e. voices, without the consent of all parties. In this way video recordings having audio and/or audio recordings could be a crime, in some cases. Yet, the definition, FSS. 934.02, of “oral communication”, excludes conversations having no expectation of privacy, see also State v. Inciarano. Additionally, what can be plainly seen or overheard in public is covered by the plain view doctrine.
Katz v. United States establishes that no person in the publicly accessible lobby of the police department would have an expectation of privacy. Further, it must be noted that Constitutional rights, such as privacy, protect citizens from government intrusion not the other way around.
What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment [privacy] protection.
Additionally, no public official in Florida has an expectation of privacy in the performance of their official duties, see Department Agriculture and Consumer Services v. Edwards.
Further, Smith v. City of Cumming establishes the right to record in such public locations.
The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.
The rights established by the First Amendment outlined in Smith above is subject only to intermediate scrutiny. This is a high burden to meet, Bacon v. McKeithen.
The state would need to show that it does not “restrict speech substantially more than necessary to further a legitimate government interest,” and it “leave[s] open adequate alternative channels of communication.”
Therefore, video recording with sound or audio recording in the publicly accessible lobby of a police station, would not be a crime if you are not otherwise breaking the law. Additionally, taking photos in public places, while lawfully present with an intention to express ideas to an audience, is protected activity and not a crime.
There is NO Florida or Federal statue which addresses such photography in public. Further, the state cannot after the fact create laws upon which to prosecute an action, as this violates ex post facto provisions of the Constitution. This means things are not illegal until made so by duly enacted laws, and such laws cannot be applied retroactively.
If anyone attempts to use the Florida wire tap law against you under similar circumstances, then you should cite them your rights and the immunity you have because you believed in good faith your actions were lawful under constitutional grounds, FSS. 934.10(2)(c).
Even the Department of Homeland Security (DHS) knows public photography is not a crime in lobbies, publishing a memo documenting such in 2010. Therefore, it makes no sense that HPD would believe otherwise in 2017. Further, Florida has its own Government in the Sunshine and Open Government provisions to its laws and Constitution. This means they can restrict your rights much less on state property, such as a police department.
We have a First Amendment right to video record, audio record and/or photograph in publicly accessible places, subject only to intermediate scrutiny. The sign shown above which HPD presents when first walking into their lobby is an affront to our liberties, demonstrates their lack of concern for following the Constitution and laws they swore an oath to uphold, and would chill the man of ordinary firmness from exercising his rights. HPD’s sign violates the Florida and US Constitutions. It further punishes speech before it happens and not after thus creating a prior restraint, Nebraska Press Association v. Stuart.
[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.
I would hope this article would shame HPD and their Chief Alexander Rolle into correcting these problems. However, Rolle has repeatedly shown himself to be shameless, which explains a lot in terms of the sign at the new police station. Rolle probably had this sign put in place because I recorded him before, and obtained evidence of him committing a few felonies.
You can follow updates, and see more of the history on Homestead’s rights violations on Facebook @ True Homestead.
Lastly, If such an affront to the First Amendment upsets you, you should consider exercising your right to petition, contacting Homestead, and telling them PHOTOGRAPHY IS NOT A CRIME!
City of Homestead; phone: (305) 224-4433
Homestead Police Department; phone: 305-247-1535
The Mayor Jeff Porter; email: jporter@cityofhomestead.com.
The City Manager George Gretsas; email: ggretsas@cityofhomestead.com.
Homestead Chief of Police Alexander Rolle; email: arolle@homesteadpolice.com.
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