Man's arrest leads to questions about right to record

POST FALLS — A man is questioning the limits of the right to record in public spaces after he was accused of stalking.

Spokane resident Chadlen Smith was arrested in Post Falls on Jan. 3.

Smith engages in “First Amendment auditing,” an activity that usually involves photographing or filming a public space, especially government buildings or police stations, in order to “test” constitutional rights. These audits are often posted on social media.

Smith, who previously recorded and posted videos taken in and around the Kootenai County Courthouse, said he was returning to Spokane after visiting a friend around 10 p.m. on Dec. 20 when he stopped to photograph Christmas decorations outside the Post Falls Police Department.

Around that time, an employee’s shift ended. When leaving the parking lot, the employee reportedly saw Smith’s car pull out of a nearby space. Smith's car remained behind the employee as they drove home.

The employee contacted police, who initiated a traffic stop.

Smith reportedly said he was looking at Christmas lights in the area and did not intend to follow anyone. He was cited for having an invalid driver’s license.

Smith told The Press he submitted a public records request for the body camera footage and dash cam footage for the traffic stop. He recorded himself picking up the footage at the Post Falls Police Department on Dec. 22.

Body cameras have been issued to all Post Falls police officers since 2007. Officers are expected to activate their cameras during any kind of service or during interactions that could be of evidentiary value. At the end of a shift, footage is saved and archived.

Post Falls Police Officer Jason Mueller said law enforcement officers generally expect to be recorded and supervisors randomly review body camera footage.

“They can watch it and see how an officer performed,” he said.

Smith said the footage he received Dec. 22 was incomplete and submitted another request. He returned to the police department on Dec. 28. He also recorded the interaction.

After he received the additional footage he had requested, police served Smith with a trespass warning notice, which he said he felt was unwarranted.

“Everything I did was within my legal rights and constitutionally protected,” he said.

Mueller said an individual’s right to record interactions with law enforcement is protected in most cases.

“It’s your First Amendment right,” he said.

When in public spaces where they are lawfully present, people have the right to photograph anything that is in plain view, according to the American Civil Liberties Union of Idaho. That includes pictures of federal buildings, transportation facilities and police.

Taking photos or video does not constitute reasonable suspicion of criminal activity in itself, according to the ACLU.

However, police officers may order individuals to cease activities that interfere with legitimate law enforcement operation.

Courts have held that police have discretion to take reasonable steps to protect the public and their own safety, according to First Amendment Watch, a project of the Arthur L. Carter Journalism Institute at New York University.

What a court finds reasonable depends on the situation. It might include keeping people at a distance from an incident, for example, or limiting traffic in an area.

Smith returned the evening of Jan. 2 to the Post Falls neighborhood where he was pulled over in December. He said he was taking photos of the area in order to determine whether he had made a traffic violation.

A neighbor reported the activity to police.

An officer conducting a prowl check in the neighborhood around 5 a.m. on Jan. 3 observed Smith’s vehicle. When questioned, Smith said he was in the area to finish taking photos.

Police arrested Smith and charged him with second degree stalking, a misdemeanor.

Mueller said he couldn’t comment on the specifics of Smith’s case, which is ongoing. He noted, however, that an individual’s right to photograph or record can be limited in some circumstances.

“We have to look after the safety of the public and our employees,” he said. “If behavior goes beyond recording, where they’re following or menacing people, we have to step in.”

Smith said the experience was demoralizing. He posted $1,500 bail and paid $266 to get his car out of impound. His electronics were seized as evidence. Medication was also taken when he was arrested and later released to him.

“It’s been a huge inconvenience,” Smith told The Press, adding that he doesn’t believe his actions were unlawful. “I’m feeling disappointed by the system.”

He became emotional when he described his reasons for engaging in First Amendment auditing.

“I’ve been through the system,” he said. “I’ve had problems in the past and I did my time. It’s my way to take the power back.”

He said his goal is to educate the public about their constitutionally protected rights to record in public.

“I’m doing it for everybody’s First Amendment rights,” Smith said.

The experience has caused him to question whether he should continue his activities.

“There’s risks with it,” he said.

Though video recordings are important tools, Mueller said, they aren’t infallible. A video might capture only part of an interaction or show an angle or perspective that doesn’t reveal the complete context.

“Videos are fantastic and they’re great to have,” he said. “They don’t necessarily show an accurate depiction all the time.”

Still, Mueller said, people should feel free to record or document law enforcement interactions, whether their own or someone else’s.

“Make sure you do it from a distance where you won’t be obstructing an officer doing legitimate duties,” he said.