It was 2009 when the story of a mother named Tasha Ford who was arrested on felony “eavesdropping” charges for recording police detaining her teenage son in the parking lot of a South Florida movie theater after accusing him of trying to sneak inside without a ticket.
Ford’s arrest by Boynton Beach police was one of several high-profile arrests at the time on charges of eavesdropping or “wiretapping”; an unconstitutional trend in which cops across the country were using outdated felony laws to keep citizens from recording them in public.Several landmark court cases since then have affirmed that citizens have a First Amendment right to record police in public which is one reason why we have been seeing so many police abuse videos in recent years. Turns out, they had a lot to hide during those early years.
But on May 5, the Fourth District Court of Appeals in Florida ruled the Boynton Beach cops who arrested Ford had a reasonable expectation of privacy and therefore had probable cause to arrest her, once again denying her the right to sue for damages. Ford first filed the lawsuit in 2010 but has since faced a string of judges who claim that cops have an expectation of privacy in public despite existing case law stating otherwise.
Ford’s video from that night should have ended the expectation of privacy debate because it shows the cops were standing in front of a bustling movie theater on a Saturday night as dozens of people stood or walked by. Some of the bystanders exchanged comments with the officers. One man even walked up and introduced his date to an officer while the cop tried to obtain Ford’s home address. The officer shook both their hands before resuming the conversation with Ford as if it were just another meet-and-greet community event.
But it does not appear as if Judges Edward L. Artau and Melanie G. May even watched the video, much less researched case law because they did not elaborate on their decision other than recite what was already stated in summary judgment from the lower court judge.
In his summary judgment under the heading “Undisputed Material Facts,”, Judge G. Joseph Curley described Ford as “confrontational” because she would not stop recording when ordered to do so. He also stated that she had “admitted” to recording the cops without consent as if confessing to a crime when the whole point of the lawsuit was that she was not committing a crime and had nothing to admit to because she never made it a secret that she was recording.
The summary judgment also claims that the cop’s friend who walked up and introduced his female companion also had an expectation of privacy, never mind the fact he was the one intruding into a conversation that had nothing to do with him.
The 2-1 ruling is already being challenged in an amicus brief filed Thursday by the ACLU, the National Press Photographers Association, the Society of Professional Journalists and several other First Amendment groups who predict cops in Florida will begin using the ruling to arrest anybody recording them in public as they’ve done in the past.
Below is an excerpt from the amicus brief which you can read here:
If allowed to stand, the panel majority’s opinion will license law enforcement officers to order citizens to stop recording the officers’ public discharge of their duties and to arrest all who refuse to comply for obstruction without ᴠɪᴏʟᴇпᴄᴇ. Like Ms. Ford, those individuals can hope and expect that sensible prosecutors will decline to charge, and sensible judges and juries will decline to convict, but they will nevertheless suffer the considerable consequences of an unlawful arrest, ranging from һᴜᴍɪʟɪɑтɪᴏп, degrading confinement, the cost of bail and defense counsel to the potential loss of employment and disruption to familial bonds, all captured by the popular culture saying, “you can beat the rap, but you can’t beat the ride.”
This Court should put an end to the practice by:
1. Granting rehearing or rehearing en banc;
2. Ruling that defendants lacked probable cause to arrest Ms. Ford;
3. Holding that recording police officers in the public discharge of their duties cannot create probable cause to arrest for wiretapping or for resisting without ᴠɪᴏʟᴇпᴄᴇ irrespective of whether ordered to stop recording; and
4. Holding that arguably rude speech unaccompanied by тһгᴇɑтѕ, incitement, or physical interference cannot give rise to probable cause to arrest for resisting or obstructing without ᴠɪᴏʟᴇпᴄᴇ.
The dissenting judgeIt appears that the only judge who watched the video was dissenting Judge Martha Warner who has been on the bench since 1989 when she was appointed by then-Governor Bob Martinez. Artau was appointed to the bench last year by Governor Ron Desantis and May was appointed to the bench by Governor Jeb Bush in 2002.
Judge Warner not only watched the video and did her research, she explained her dissent in detail, citing a couple of the landmark cases that were made since Ford’s arrest. She also highlighted the viral George Floyd video from last year and the importance of being able to record police in public as you can read in the excerpt below.
I would hold that a law enforcement officer has no reasonable subjective expectation of privacy in conversations he has with the public or the arrestee in the performance of the officer’s duties in public places. They are performing a public duty at the time, and the public has a right to hear their words. This is as true today as it was in 2009.
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, he would have been guilty of a crime.
The facts of this case seem to be only too similar to so many police encounters caught on video or cell phones. The officers had no reasonable expectation of privacy in their conversations while performing their public duties, particularly in public spaces. Given the prevalence of small video cameras and cell phones in public spaces, society has definitively come down on the side of approving the videoing of officers in the performance of their duties as a method of accountability. Because I conclude that the court erred in finding that the officers had probable cause to arrest the appellant for violation of the wiretap statute or for obstruction of the justice statute, I would reverse the final summary judgment and remand for further proceedings.
The arrest took place on February 28, 2009, a time when most people did not have video cameras on their phones. Not even the iPhone had a video camera at the time.
Ford, who had recently moved to South Florida from Washington DC, was at her mother’s house when she received a call from Boynton Beach police telling her to come pick up her son whom they said tried to sneak into a movie theater without purchasing a ticket.
Ford drove to the theater and began recording with her Canon Powershot as soon as she stepped out of the car. The cops immediately accused her of being “aggressive.” She responded by saying she was “passionate” about her son, especially after learning one of the cops slammed him against the car when he would not remove his headphones.
At no point did the cops whose names are Robert Kellman, Ricky Lauture and Russell Faine ever make an attempt to keep people from walking through the area where they had the teen detained while talking to his mother, which is a routine step when they want to keep their conversations private.They just did not appreciate Ford questioning their authority as she recorded them which was not as common back then as it is today where there are now dozens of YouTube channels dedicated to doing just that. That is what made her aggressive in their eyes.
And that is what made her “confrontational” in the eyes of Judge Curley, a word that was also by the attorney of the cops in describing the incident to the judge, according to court documents.
Curley decided to weigh the evidence in summary judgment rather than let the undisputed facts speak for themselves as he is supposed to do.
Judge Curley’s misunderstanding of the eavesdropping law probably comes from federal judge William Zloch who dismissed Ford’s federal lawsuit in May 2011 by claiming the cops had probable cause to arrest her because she had recorded them without consent.
Judge Zloch was probably in for a shock when less than three months later in August 2011, the landmark Glik vs. Cunniffe decision from the First Circuit Court of Appeals in Massachusetts affirmed that citizens had the right to record cops in public, contradicting his opinion on the issue.
The following year, ACLU vs. Alvarez out of the Seventh Circuit in Illinois was what finally put a stop to Chicago police arresting people on felony wiretapping charges for recording them in public.
But even before those landmark cases, the right to record police in public was already established in the 11th Circuit Court of Appeals, which includes Florida, with the case, Smith vs the City of Cummnig in 2000 which states citizens have a “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct,” including a “right to record matters of public interest.”
The following is an excerpt from our original article on the arrest published on March 6, 2009 after we interviewed Ford by phone, less than a week after she was released from jail. It was a time when the mainstream media would ignore such arrests until they became impossible to ignore which is what happened here.
After pulling into the parking lot, she started filming as soon as she stepped out of her car.
“I saw my son surrounded by five officers and I started filming them, then I filmed the officer walking up to me,” she said.
Rather than stop to talk to the officer, she walked up to her son and asked him what happened. He told her that he had been tackled from behind by an officer and handcuffed after having been thrown out of the theater by a security guard.
“I kept asking the officers, ‘Was he aggressive? Did he pose a threat? I cannot perceive why you would want to put a child in handcuffs’,” she said.
But the officers seemed mainly concerned about the camera.
“They said ‘you can’t record people without letting them know’,” she said.
“So I said, ‘Ok, Tasha Ford is recording you’ and I continued filming them.
“I was filming them for my own protection,” said the mother of two who recently moved to South Florida from Washington DC. “I’ve seen the way cops interact with civilians down here.”
She said one of the officers, Robert Kellman, was extremely antagonistic towards her and told her son, “since your mother is such a fucking asshole, I’m going to arrest you for trespassing’.”
And then a supervisor arrived and when he noticed that she had a Maryland driver license, he allegedly told her, “you fucking northerners think you can come down here and mess with cops. You are about to get a lesson 101 on how to deal with Florida cops.”
The supervisor ordered her arrested under Florida’s electronic surveillance law, which is mostly applied to recording phone conversations without the other party’s consent.
In other words, it doesn’t apply to people who do not have a reasonable expectation of privacy.
But here we are 11 years later and the judges still don’t understand basic Constitutional law. Or perhaps they just don’t care.
After dismissing the federal claims over the eavesdropping charges, Judge Zlock kicked the case back down to the lower court to resolve the claim over the obstructing justice/resisting arrest charge which is really nothing more than a contempt-of-cop charge.After her arrest, prosecutors wasted little time in dismissing both charges against Ford which should have bolstered her chances of suing police for damages but she had the misfortune of going before clueless or ᴄᴏггᴜρт judges who ignore actual case law.
The amicus brief filed last week is requesting an en banc review which would bring the case up before the entire bench of 12 judges in the Fourth District Court of Appeals rather than just a panel of three. And the next step after that would be the Florida supreme court.
The case has never gone before a jury who would likely have a much different interpretation of the eavesdropping law than the bulk of judges mentioned in this article.
Ford vowed more than a decade ago that she would continue fighting this until she obtains justice so it is unlikely she is about to give up. Especially now that she has found an honest judge.
Watch the video of the arrest below: