Volokh Conspiracy: No drone surveillance of crime scene (even from 150 feet above), police say

Does the First Amendment include a right to gather information using flying drones? The federal trial court decision in Rivera v. Foley (D. Conn. Mar. 23) is to my knowledge the first court decision to consider the matter, and its largely skeptical of the First Amendment claim though of course it wont be the last word on the subject, both because it is just a trial court opinion, and because it mostly holds that any right to use drones wasnt clearly established at the time of the events.

Here are plaintiff Pedro Riveras factual allegations (keep in mind that they are just the allegations):

[Rivera] is employed as a photographer and editor at a local television station. [O]n February 1, 2014, he heard on a police scanner that there was a serious motor vehicle accident in the City of Hartford. [Rivera] responded to the accident site and began operating his personally owned drone, which [he] describes as a remote-controlled model aircraft outfitted for recording aerial digital images, to record visual images of the accident scene. [Rivera] was standing outside of the area denoted as the crime scene by officers responding to the accident in a public place, operating his device in public space, observing events that were in plain view. [F]rom his position, [Rivera] maneuvered his drone into the demarcated crime scene area by causing it to hover over the accident scene at an altitude of 150 feet.

Officer [Edward] Yergeau and other uniformed members of the Hartford Police Department at the scene of the accident surrounded [him], demanded his identification card, and asked him questions about what he was doing. [Rivera] informed Officer Yergeau and the other police officers that he was a photographer and editor at a local television station, but that he was not acting as an employee of the television station at the time. [Rivera] also acknowledged to Officer Yergeau and the other police officers that he does, from time to time, forward the video feed from his drone to the television station for which he works.

Officer Yergeau and the other police officers demanded that he cease operating the drone over the accident site and leave the area. [I]mmediately after he was ordered to leave the accident site, Officer [Brian] Foley contacted [Rivera]s employer and complained to [Rivera]s supervisor that [Rivera] had interfered with the Departments investigation at the accident site and compromised the crime scenes integrity. Officer Foley either requested that discipline be imposed upon the [Rivera] by his employer, or suggested that the employer could maintain its goodwill with the employer [sic] by disciplining the [Rivera]. [A]s a direct and proximate result of Officer Foleys contact with [Rivera]s employer, [Rivera] was suspended from work for a period of at least one week.

Because Rivera was suing for damages, and because he couldnt show any city policy of blocking drone overflights, he could prevail only if he could overcome the police officers qualified immunity he had to show that the officers conduct violate[d] a clearly established constitutional right, and any reasonable officer would have realized this. The court concluded that no right to gather information through videorecording had been recognized under Supreme Court and Second Circuit precedent. (Several decisions from other circuits have recognized such a right, but two others have held that no such right was clearly established at the time of those decisions, and in any event the Second Circuit, in which this particular case arose, hadnt spoken.)

But the court went further, concluding that, even if a right to videorecord was recognized, it did not clearly extended to hovering above even 150 feet above the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene (paragraph break added):

[I]n cases where the right to record police activity has been recognized by our sister circuits, it appears that the protected conduct has typically involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, the police activity at issue. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) ([T]he complaint indicates that Glik filmed the officers from a comfortable remove and neither spoke to nor molested them in any way. Such peaceful recording of an arrest in a public space that does not interfere with the police officers performance of their duties is not reasonably subject to limitation.); Am. Civ. Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012) (While an officer surely cannot issue a move on order to a person because he is recording, he police may order bystanders to disperse for reasons related to public safety and order and other legitimate law-enforcement needs. Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.).

By contrast, here [Rivera] directed a flying object into a police-restricted area, where it proceeded to hover over the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene. See, e.g., U.S. v. Causby, 328 U.S. 256, 266 (1946) (holding that invasions to airspace situated within the immediate reaches of land including airspace so close to the land that invasions of it affect the use and enjoyment of the surface of the land are in the same category as invasions to the land itself). Even if recording police activity were a clearly established right in the Second Circuit, [Rivera]s conduct is beyond the scope of that right as it has been articulated by other circuits.

This is probably the most First-Amendment-skeptical part of the courts analysis, and Im not sure its right. Practically, its not clear to me why videorecording a scene from 150 feet above is any more of an intrusion into a police investigation than videorecording it from 150 feet away horizontally or diagonally (if the drone had been off to the side but looking down at angle), at least unless a police helicopter was nearby or was likely to be nearby.

The rest is here:
Volokh Conspiracy: No drone surveillance of crime scene (even from 150 feet above), police say