drones

I examined a case for the Connecticut Law Tribune that could test the legal contours of the right to use drones in newsgathering:

A Connecticut television photographer's federal lawsuit could shed some legal light on how far journalists can go to record police activity and what rights they might have to use drones to gather news.

Photographer Pedro Rivera, who works on an on-call basis for WFSB-TV, took his remote-controlled drone — which weighs 2 1/2-pounds and is propelled by four rotors — to the scene of a serious motor vehicle accident in Hartford on Feb. 1, 2014. While flying the camera-carrying drone 150 feet above the accident scene and recording police activity, Rivera, in court documents, says he personally was "standing in a public place, operating his device in public space, observing events that were in plain view."

Nevertheless, he says uniformed members of the Hartford Police Department surrounded him, demanded that he stop operating his drone over the accident scene and told him to leave the area. According to Rivera's court filings, the question at hand is not whether he simply has "the ability to operate the drone somewhere; it is the ability to operate the drone around newsworthy events."

While at the Feb. 1 accident, Rivera was not working for WFSB, but he had provided drone footage to the station in the past, according to court papers. He argues that the police actions violated his Fourth Amendment right to be free from unreasonable seizures and his First Amendment right to freedom of expression. The lawsuit names Hartford police Lt. Brian Foley and Sgt. Edward Yergeau, who are being sued in their individual capacities.

According to the lawsuit, Foley contacted one of Rivera's supervisors at WFSB to complain that the photographer had interfered with the accident investigation and had compromised the crime scene's integrity. As a result, Rivera says he was suspended from work for at least one week.

In the most recent round of briefing in the case, Nathalie Feola-Guerrieri, senior assistant corporation counsel for Hartford, argued in court papers filed July 31 that the photographer's complaint should be dismissed.

For one thing, she wrote, "there is no factual indication that it was plaintiff's recording of police activity, rather than plaintiff's intrusion with his equipment into the denoted crime scene area where no other members of the public were allowed to enter, ... that motivated Foley's contact with his employer."

Further, she stated, the two police officers have, as public officials, qualified immunity from any lawsuit stemming from their on-the-job decisions. While police are required to follow the law and not bar legal newsgathering, Feola-Guerrieri wrote there have been no decisions from the U.S. Supreme Court or the U.S Court of Appeals for the Second Circuit "that would support the existence of plaintiff's right to operate his drone equipment in and directly above the denoted crime scene area while an active investigation is being conducted."

Even if courts eventually recognize the right of journalists to use drones to record a crime scene, the Hartford officers shouldn't be punished retroactively for grounding Rivera's drone. In an interview, Feola-Guerrieri said that "it could very well be that it's perfectly OK for [Rivera to operate his drone above the accident scene]. It's undetermined at this point."

'Lawful Vantage Points'

The photographer's lawyer acknowledges that the U.S. Supreme Court has not directly addressed the right to record police activity but cites others federal court decisions supporting a right to record police activity. Lawful news gathering, including news gathering using drones, can be curbed only if police reasonably believe that journalists are interfering with law enforcement activity, Bethany attorney Norm Pattis said in court papers.

As a result, the individual police officers are not entitled to qualified immunity in this case because "the right to photograph the police from lawful vantage points … is established," Pattis wrote.

While Rivera and his lawyer acknowledged that municipal governments may not be sued solely for constitutionally questionable actions by employees, they said they can show the Hartford Police Department has a widespread policy aimed at stopping the public from recording police activity. The city's reply is that a single incident involving officers below the "policymaker level" does not mean the courts can infer the city has a policy to curb the public's and press's First Amendment rights to record police activity.

James Bergenn, a Shipman & Goowin attorney who co-chairs the Connecticut Bar Association's Media and the Law Section, said that, on one hand, drones are a non-intrusive way for the public to monitor police investigations because they operate in space law enforcement personnel aren't using.

On the other hand, Bergenn said that allowing drones to go into the airspace above crime scenes could lead to the public learning facts about an investigation that only the perpetrators would know. Investigators often want to keep such information out of the public limelight. The possession of investigative facts is a "truth detector, a truth insurer" for law enforcement, Bergenn said.

The right to use drones in newsgathering also implicates the Fifth Amendment right to due process, Bergenn said. The courts will have to balance the strict scrutiny given to Fourth and Fifth Amendment rights with the "need in an orderly society for law enforcement to be able to act unimpaired in response to dangers to public safety," Bergenn said.

U.S. District Judge Vanessa Bryant has not yet ruled on the motion to dismiss Rivera's complaint.

The Federal Aviation Administration is still developing regulations for use of drones in American airspace, including for journalistic purposes. According to USA Today, the FAA is supposed to have a plan in place for the unmanned devices to fly along with airplanes by September 2015, but the rulemaking process is lagging behind schedule.