Know Your Rights: Copwatching 101

In part one of our two-part Know Your Rights series, Leah speaks with Brooklyn Law School’s Jocelyn Simonson about copwatching. They cover what the law says about filming police and federal officers like ICE agents, the line between protected observation and unlawful interference, and how to think about navigating the gap between exercising your constitutional rights and personal safety. Jocelyn’s book is Radical Acts of Justice: How Ordinary People Are Dismantling Incarceration https://bookshop.org/p/books/radical-acts-of-justice-how-ordinary-people-are-dismantling-mass-incarceration-jocelyn-simonson/d544236bc31a2796?ean=9781620977446&bkshp-astro=t. Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social Get tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/ Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t& Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social For a transcript of an episode of Strict Scrutiny please email [email protected] mailto:[email protected]

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:03Speaker 00

  Mr. Chief Justice, may I please report? It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.

• 0:14Speaker 01

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 0:45Leah Litman?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. This episode is a bonus episode we are offering as part of a limited series we are calling Know Your Rights. It's kind of a what can the Constitution do for you guide? As we talked about when we were discussing Melissa's book, The U.S. Constitution, it's more important than ever for the people to understand the Constitution and to be able to claim it for themselves rather than handing it over to the weirdos at One First Street. A lot of our extra summer content is going to be in that spirit, and that includes this Know Your Rights segment, which we're hoping will be an informative overview to help our listeners stay safe and challenge unlawful conduct in an aggressive enforcement climate that calls for protest and public action.

• 1:27Leah Litman?

  This particular episode is devoted to knowing your rights about cop watching, the ability to observe and record law enforcement officers. And here to join me in explaining rights regarding cop watching is a person who literally wrote the article on the topic, Jocelyn Simonson. Welcome to the show, Jocelyn.

• 1:43Speaker 03

  Thank you for having me.

• 1:44Leah Litman?

  Thanks so much for joining. So Jocelyn is the Herman Badiot Professor of Law at Brooklyn Law School, where she teaches and writes on criminal procedure. She is also the author of Radical Acts of Justice: How Ordinary People Are Dismantling Incarceration. Okay, so Jocelyn, let's start with the basics. What is cop watching and why does it matter right now?

• 2:04Speaker 03

  Cop watching is a general term for watching law enforcement perform their duties in public. It could be with a cellphone, recording them. It could not be. It could just be observing them. It could be alone, or it could be with a group. But it's the deliberate watching of people who claim to represent the public and keep us safe. And because it's deliberately watching someone who has power, watching people who are used to having all the power, it carries with it an emphasis that can feel like a challenge and a power shift, right? I am watching you because you claim to be promoting safety. I may be recording you to try to make sure that you do the right thing in the moment.

• 2:47Speaker 03

  And if not, make sure that others can see what you're doing, too. So cop watching has always been important, and it predates cellphones. But as many people are likely aware, there have been moments where cop watching has taken on increased significance. One of them was in 2014 and 2015 around the Lives of Black Lives Matter movement, which is when I began writing about it. But in the last year and a half, cop watching has taken on renewed significance under the Trump administration, especially with watching federal law enforcement come into cities, especially ICE agents, but all kinds of federal law enforcement. So sometimes now it's called ICE watching.

• 3:31Speaker 03

  But it's the same thing. It's coming together to record law enforcement officers in your community.

• 3:37Leah Litman?

  And we'll talk about some of those variations in the course of our discussion. But when you wrote your article, Cop Watching, in 2016, it was salient at the time, and it is additionally salient now. So just to give our listeners a kind of reminder, The New York Times ran a story documenting its analysis of hundreds of cases brought by the Trump administration against protesters and immigrants, often related to allegations that people supposedly assaulted immigration officers. And in the 213 cases The Times analyzed where the government lost, they found, quote, "officers charged more than two dozen people who were filming or following agents." And there was actually no allegation of physical contact with agents. So your article that appeared in The California Law Review, we should say, remains one of

• 4:22Leah Litman?

  the authoritative texts on the topic. And you explored the particular phenomenon of organized cop watching. Can you talk to us a bit about organized cop watching? Where does it come from? And what distinguishes it from just casually pulling out your phone when you see police activity?

• 4:36Speaker 03

  Yes. I think of organized cop watching as emerging around the 1960s in urban areas in the United States, when the Black Panthers famously patrolled city streets with guns and cameras, and other civil rights organizations conducted unarmed patrols in groups to watch police officers to try to keep communities safe and try to tell people what was going on. And when I researched my cop watching article in 2014, 2015, I researched the topic because I was seeing an expansion at the time of the tactic with the rise of Black Lives Matter. And I wanted to interview activists and understand why they were doing it, what they were experiencing, and why it felt so powerful.

• 5:19Speaker 03

  Because to me, it did feel powerful when I saw it happening. Organized cop watching, it's different than casually pulling out your phone because it's collective. It's a group coming together. Sometimes they're wearing matching T-shirts, sometimes they're not. Sometimes they have big, visible cameras, sometimes they don't. But it's a group coming together and saying--

• 5:40Leah Litman?

  Sometimes they're organized gangs of wine moms. Sometimes they have whistles.

• 5:43Speaker 03

  They really are. They really are. Sometimes they have whistles. Sometimes there are signal chats. But it's different than casually pulling out your phone. It's collective. It's communal. And so it carries with it a particular significance in the moment. If we want to think of it as expression, which we do, it's saying the community is watching you, not just a person is watching you. And it can also be a communal show of support to those being arrested. I think that's a particular purpose, say, of ICE watching in this moment. Or a way for groups to gather footage and data about what's happening, which of course can be done individually, but can be done much more effectively when done collectively.

• 6:24Leah Litman?

  Yeah. So what does the law actually say about the right to film or record law enforcement, regardless of whether it occurs spontaneously by individuals or in organized groups?

• 6:38Speaker 03

  So the First Amendment does cover the ability to observe and record police officers performing their duties in public. That said, the Supreme Court has never said that. It's that most circuits have said that, and none have said that's not true. The ones that haven't said it either way, of course, is an issue for things like qualified immunity. Like, there are some places where it's not crystal clear, but it would be very hard to argue anywhere that the First Amendment doesn't cover it.

• 7:11Leah Litman?

  Can I just break those categories into two? Because you distinguish qualified immunity on one hand from what the First Amendment protects. And I think asking, does the First Amendment protect your right to cop watching would be relevant in, let's say, a case where an officer arrested you, and then someone attempted to prosecute you, and you were defending against the prosecution on the ground that, you know, my First Amendment rights were violated. And so in that case, it seems fairly clear that First Amendment doesn't allow you to be prosecuted, simply for filming an officer. But then qualified immunity would arise if you then attempted to sue the officers who arrested you for damages. And in that case, you don't just have to establish that the First Amendment gives you a right to film officers, but also that that right is clearly established. And there, the fact that the Supreme Court hasn't definitively said this, I think, is the obstacle.

• 7:56Speaker 03

  That's absolutely right. But most circuits have said pretty full-throatedly and really clearly, especially in more recent cases, although they go back, you know, decades, that the First Amendment covers the ability to observe and record. So both things, either or. I guess it would be hard to record without observing, but both things.

• 8:19Leah Litman?

  Well, I guess you could set up a phone. I don't know.

• 8:23Speaker 03

  Yeah. And I'm not sure about that, about the surveillance question.

• 8:27Leah Litman?

  Right, exactly. Exactly. That might be a separate issue.

• 8:30Speaker 03

  I don't think that one is as clear. The First Amendment covers that activity. But just because something is covered by the First Amendment, protected by the First Amendment, doesn't mean you can always do it at all times. There are, of course, going to be limits. And so we hear what we call time, place, and manner restrictions. Every circuit that has addressed it has said there, of course, could be restrictions. And the first one that they all jump to is that if it interferes with what the police are doing.

• 8:57Leah Litman?

  Yeah. So we'll unpack those in a little bit, but just for now, I kind of want to go back to some different categories of cases involving cop watching. So as we were kind of talking about, you know, when you were researching your article, a lot of what was going on was the observation of state and local law enforcement. And now, of course, as you said, there's a lot of observing federal law enforcement, particular federal immigration law enforcement. So does the law differ depending on if you are filming federal versus state officers or immigration officers in particular?

• 9:34Speaker 03

  The First Amendment does not distinguish between levels of public officials. It's about whether they're a public official doing this duty in public. So in terms of the First Amendment view, there's no difference. In terms of the power of it, I think it is different, right? It feels very different to be from a city and to go out into your neighborhood and your streets where federal officers have come, and it feels like they're occupying it, to say, no, we live here and we're the community. But the Constitution doesn't distinguish.

• 10:06Leah Litman?

  Yes. Just wanted to make that point of clarification for our listeners. So you were talking about the time, place, and manner restrictions, the reasonable time, place, and manner restrictions that courts have acknowledged can be applied to filming, observing law enforcement officers. So could you just explain the concept of the reasonable time, place, and manner framework that governs this? And then we'll talk about, you know, specific aspects of this, like, you know, as you were saying, interference and whatnot.

• 10:37Speaker 03

  Sure. Well, I think it's fair to say that in the context of recording the police in particular, the time, place, and manner restriction idea is not especially detailed in the case law and is incredibly deferential to the police understanding of what is reasonable and what is not reasonable. That said, there have been cases where entire laws have been held to be unreasonable restrictions. So for example, a law saying you can't record inside a police department office. Said, no, that's a restriction and you might say you have a reason, but it's not a reasonable restriction. So when you're looking at particular rules, administrative rules and statutes, it might be easier.

• 11:21Speaker 03

  In a case by case situation, though, I'd be hard pressed to be able to articulate something coherent, except for that you're supposed to know it when you see it.

• 11:31Leah Litman?

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• 15:01Leah Litman?

  So maybe we can go into a little bit of how courts have tried to know it when they see it. So where the recorded interactions take place, so the place part of time, place, manner restrictions. Is there a difference, or what is the difference between recording law enforcement officers in a public park as opposed to somewhere like, let's say, a military base?

• 15:23Speaker 03

  So, public space and public park is kind of the initial place that you start. And then when you start to say, well, we're on a military base, then you stop and ask, okay, is it reasonable to restrict it in that place? And as I said, courts have, for the most part, said that it's not reasonable to have a blanket restriction on government spaces, government places. There might be some exceptions. So inside of courtroom starts to be an exception. And usually those exceptions start to get at the privacy of others or the ability of, say, the military or the police to do their jobs. There, you see courts being a little less deferential to the idea, for example, like

• 16:05Speaker 03

  in this police department case, that like, oh, all of our police investigative work would be absolutely ruined if we ever let a camera in here. The courts were like, that's not quite true. Where you see the deference is more in the individual situations where an officer says, well, I couldn't possibly have done my work in that moment.

• 16:22Leah Litman?

  Yeah. Okay. So one other place question, and then we'll get to the kind of manner and obstruction issues. And the place question is about private property. Can someone film law enforcement officers inside a store or a warehouse or some other privately owned space?

• 16:37Speaker 03

  That's going to be an it depends. Again, it's going to start with yes. It's going to start with yes. But there might be a situation where third-party privacy concerns come in, or potentially third-party trespassing property concerns, but I've never seen that as a winning restriction. So all of these are going to be it depends. And if one is engaging in ice watching or cop watching, you're going to want to notice when you're shifting from public to private property, but that doesn't mean you have to necessarily put away the camera.

• 17:12Leah Litman?

  Yeah. It just means important to look around, right, and figure out what the rules in that space might be.

• 17:17Speaker 03

  That's right.

• 17:18Leah Litman?

  Okay. So now, let's go to the kind of, what feels like the big potential restriction to me, and that's the manner one. And it is, as you were saying, a distinction between protected observation and unlawful obstruction or interference. You obviously can observe, you cannot interfere or obstruct. So you mentioned, obviously, it's case by case, know it when you see it. But are there kinds of considerations that courts seem to have in mind when they are drawing the distinction? Or what does it look like?

• 17:47Speaker 03

  Here, the case law is very unclear. Courts are very hesitant to draw lines. And they're going to tend to make relatively blanket statements about the ability of police officers to do their job is of utmost importance. And of course, we can't say definitively where that line would be. Like, a line I would like to see them draw would be physical interference. And some courts start to say that, like touching. But even then, there are cases where someone's gotten close to a police officer. And again, this gets into more the qualified immunity space where there's layer upon layer of trying to figure out what's settled and what's not, where courts have said, well,

• 18:29Speaker 03

  it's not totally clear whether if you're just near somebody, you might be interfering with them. And so therefore, we're not going to allow you to sue this officer for arresting you for trying to film them, or something like that. So, I mean, I assume we'll circle back to this in the end, but like, I can tell you what the law says, but I'm very hesitant to send people out with their cameras relying on these pretty vague statements that courts have made.

• 18:59Leah Litman?

  No. That's part of what we are trying to get at, is to provide as much content as we can, but also acknowledge the limitations, or at least some of the factors that seem to enter into courts' analysis. So one potential source of limitations on the ability to film and observe officers would be statutes that prohibit interference or obstruction with law enforcement activities. Is there any kind of additional clues about when those statutes can legitimately be used against someone filming law enforcement officers?

• 19:33Speaker 03

  Yep, that's going to very much depend on the jurisdiction you're in. So every state has its own obstruction statute. In New York, we call it obstruction of governmental administration. Then there's, of course, the federal statute that you referred to in talking about the arrests in Minnesota. Rarely do they explain what they mean. So you're going to have to go to the case law. And there, there's going to be distinctions about whether it has to be physical or not. I think that's kind of a distinction that courts go to. In New York, in theory, you have to physically interfere with the ability of a police officer to do something. That's in theory. Before I was a law professor, I was a public defender.

• 20:16Speaker 03

  I tried thousands of cases and dozens of them were these obstruction or OGA cases. And very rarely did someone get anywhere near a police officer before being arrested. Does that mean they were ultimately convicted for it? Rarely, I would say never in those cases that I'm thinking of. This is often known colloquially as contempt of cop. Like someone pissed off an officer, they cursed at them. Which, by the way, the Supreme Court has said is constitutionally protected.

• 20:44Leah Litman?

  Yes.

• 20:45Speaker 03

  Or they've recorded them or said, don't do that. Don't hurt him, man. Stop what you're doing. And even that verbal thing has sometimes been written right up into a complaint by a prosecutor as being obstruction. Can you get the case dismissed? Sure. But I think what we're want to start to notice is that like, yes, there are these laws on the books. But in practice, the practice of policing is one in which officers are on guard. And you can think it's for good reason or you can think it's for bad reason. They don't want to be challenged while they're doing work that they think is important and serious or what have you.

• 21:24Speaker 03

  And being filmed or being watched or having someone to say with words, stop, stop. You know, like we do when we see someone hurting someone and we don't think it's right, can feel like interference, can feel like a challenge. And not to get too much like to the feelings of the guys with guns, but it does matter in terms of how they react and who they arrest and where we end up in court, even if cases end up being dismissed in the end.

• 21:53Leah Litman?

  Unfortunately, the feelings of the guys with guns seem to matter all too much in the law these days. You know, you mentioned that you would like to see courts adopt a kind of line about physical touch as obstruction. But you also mentioned cases where, you know, people were arrested, you know, before they kind of even came close to an officer. So, you know, is there some sense about how close someone can get while recording before a court might say they are interfering? Or is this to, you know, when you see it, it just depends?

• 22:23Speaker 03

  Ah, interesting. So it's interesting to me that you're asking that, like, where is the court going to draw the line?

• 22:29Leah Litman?

  Yeah.

• 22:30Speaker 03

  As opposed to like in a know your rights training, like of a community group? The question is not where is a court going to draw the line? The question is like, what's going to get you arrested and what isn't?

• 22:40Leah Litman?

  Yes.

• 22:41Speaker 03

  Where is that court going to draw the line? It's probably going to be either at physical, very close to physical. An officer have testifying about being impeded in doing, like in being able to make an arrest or something like that. Right? So helping free somebody from being arrested. Sometimes it could be nonverbal obstruction as if you, you know, lie to a police officer or try to impede them from arresting somebody.

• 23:09Leah Litman?

  The next question was going to be like after the courts, right? Like on the ground, like what about physical proximity? Yeah.

• 23:17Speaker 03

  Yeah. It's case by case. And here's the thing, I mean, as a lot of us know from practice, when I would have a case and say, your honor, this is a clear First Amendment violation. The case gets dismissed. That doesn't get written down anywhere. Right? So we don't have like this rich written record of what judges are and are not going to think is a First Amendment violation. I think physical touch is a clear line that someone can point to and use, but it's not a crystal clear line within the case law because courts are going to say, and again, this makes logical sense. It just gets to be like, come on, just give me a rule. The courts will say, well, there could be times where you're not physical and yet you're still interfering. And it's like, sure, your honor, you're right. Let, you know. So.

• 24:03Leah Litman?

  How about a default rule? How about a general one? Yeah, still not going to get that. So, you know, we've been talking about cop watching as potentially encompassing both observing and recording. And so when you get into the recording space, another set of laws that might be relevant are wiretap laws. You know, can an officer arrest or charge someone with violating, let's say, an eavesdropping statute for just the recording part of the cop watching?

• 24:30Speaker 03

  No, they can't. Even in states with two-way consent laws, which quite a few states have. And actually, the Illinois case that led to the Seventh Circuit finding a right to record was an eavesdropping claim because they're a two-consent state. And there they said, first of all, there's a First Amendment right to record. And then officers don't have a reasonable expectation of privacy when they're out doing their work. So for the most part, that's not going to be a problem. The one time you might want to start to think about it is when non-law enforcement are involved. Because if you're out on the street, there's a lot of people being recorded. And then it's the audio part of the video and other people talking.

• 25:12Speaker 03

  So some organized cop watching groups, when they're thinking about what videos to make public, will think about the audio of third parties.

• 25:22Leah Litman?

  Okay, got it. And then another aspect of the recording or filming question is, let's say you're a poster, right? And so you want to post the audio or video recording you made on social media. Obviously, there have been some reported instances of officers arresting people for social media posts. But I guess I'd kind of generally ask, you know, can you get in trouble for that? Or like, how often are people getting in trouble for that? And then the follow-up question is, and like, have courts kind of said anything about the limitations there?

• 25:55Speaker 03

  Courts have said very little about the limitations there. What I can say on the ground is that more often, the posting of law enforcement videos is being used as evidence against people in cases where the charge is not the post, but is something else.

• 26:12Leah Litman?

  Yeah.

• 26:13Speaker 03

  And so we're seeing this a lot under the Trump administration with federal prosecutions of group that they're declaring to be terrorists or Antifa, or there's a prosecution essentially of ice watchers in Minnesota under the label of Antifa. And there, social media posts are going to be so-called over the X in furtherance of these so-called conspiracies. But that's very different than saying the post itself is illegal. I haven't seen that. I've seen it more as used as evidence against people.

• 26:45Leah Litman?

  Okay. And how about if someone is observing or filming an officer and the officer tells them to stop, right? Either to stop recording or filming or to stop observing, you know? Does someone have to comply? Does that automatically become a kind of you are interfering with the officer's law enforcement duties? Either on the ground, right, in practice? Or, you know, how that kind of plays out in subsequent proceedings?

• 27:12Speaker 03

  Yeah, that's a tricky one because the initial like answer under the Constitution is no. Just because they tell you to stop doesn't mean you have to stop. It doesn't make the First Amendment go away. But what can happen is that different claims can pile on each other. So when an officer gives you an order, you're only required to follow it if it's a reasonable order. But now we have to determine if it's a reasonable request in the first place, which yes, is about the First Amendment, but also is about any number of other things in the moment. And so now you're asking courts, if you get arrested or if you're challenging, if you're suing the officer, now you're asking courts to make like reasonableness upon reasonableness upon reasonableness determinations. And if courts have taught us anything, it's that when they're looking at reasonableness,

• 27:57Speaker 03

  what a police officer says is reasonable in the moment is what's going to go.

• 28:01Leah Litman?

  Yeah. How about, you know, can an officer take someone's phone and make them delete the video?

• 28:07Speaker 03

  Again, no. They can't. No.

• 28:11Leah Litman?

  First line answer.

• 28:12Speaker 03

  No, that's it, yes.

• 28:15Speaker 03

  Which is true of so much of this. No, they, but again, they can't legally do it. But of course, it happens all the time. And I mean, I'm sure there are many people listening who have had interactions with law enforcement of whatever kind. When a police officer with a gun tells you to do something, it's really hard not to do it.

• 28:37Leah Litman?

  Yes.

• 28:37Speaker 03

  Right? Your heartbeat, just if you've had something happen, like your heart races. You know, so most people, many people follow that order, but no, it's not an order that you have to follow. You also don't have to show them what's on your phone. You don't have to give them your phone, none of that. Ask for a warrant.

• 28:55Leah Litman?

  So related to that, maybe that's going to be the answer, ask for a warrant. You know, how should people protect their phones and their footage, you know, if they are filming and recording?

• 29:06Speaker 03

  So the warrant would be like if you have it. But if you've dropped your phone and the police officer picks it up and they're in possession of it, then you're going to want to make sure that your phone is digitally protected in any number of ways. I'm actually, I should have looked at this before we talked. I'm not up on like the latest iPhone, what you should be doing. But certainly, password protect. Don't do the face thing because you know what? They'll just hold it up to your face.

• 29:33Leah Litman?

  Yes.

• 29:33Speaker 03

  You know, there are any number of things and there are some great resources out there. I can try to look for them for later for links about how to digitally protect your phone so that if they want to get into it, they need to get a warrant.

• 29:47Leah Litman?

  So I'm going to shift in a second to if your rights are violated, kind of like what to do about it. But one kind of last question, just on the scope of your rights. And that is, you know, does the officer need to know they are being filmed or recorded in order for the filming or recording to be legally protected lawful?

• 30:09Speaker 03

  No.

• 30:12Leah Litman?

  Great. Also, top line answer, no.

• 30:14Speaker 03

  Yes, that's a no, and that's one that I haven't seen necessarily challenged. But you were secretly recording me.

• 30:21Leah Litman?

  Right.

• 30:21Speaker 03

  Yes. I think it's a fairly common practice to secretly record because it can put you at less risk of being retaliated against.

• 30:30Leah Litman?

  Indeed. Okay, so now, did, kind of want to shift to, and like, what happens if your rights are violated? So what should someone do if they believe their rights have been violated?

• 30:41Speaker 03

  I guess it depends what we mean by that. The scariest form of your rights being violated would be to be killed for recording, which happens. It has happened. It has been happening. The next, maybe, most scary thing would be to be arrested for it.

• 30:55Leah Litman?

  Yeah.

• 30:56Speaker 03

  And so then, it's good to know when you first, don't talk to the police until you have a lawyer. When you first have a lawyer, whether it's someone you're assigned or someone you hire, bring it up. Talk about it. Think about it as a line of defense in your cases. If we're talking about you haven't been arrested, but someone, like, but, you know, you want to sue the police officer for what they did.

• 31:20Leah Litman?

  Trying to coerce you, yeah.

• 31:21Speaker 03

  Yeah, you know, you can try to bring civil lawsuits. The ACLU and a number of suits, places, including in Minneapolis, has class actions

• 31:28Leah Litman?

  Yep.

• 31:29Speaker 03

  about actions that police are seeing. You could see if a class action is happening in your area. But here's, here's the thing about inviting me onto this podcast. Like, I'm not a big fan of, like, the use of constitutional litigation to get a lot done.

• 31:43Leah Litman?

  That does not make you a poor guest for this show.

• 31:47Speaker 03

  Yes, they're not a poor guest.

• 31:48Leah Litman?

  This is very much in keeping with, yeah.

• 31:51Speaker 03

  So it's like, you know, for all of this, does the First Amendment protect this conduct? Absolutely. Where does that get us? It gets us to that the First Amendment protects this conduct. That's good to know. And, you know, to go back to when you were introducing the purpose of some of these segments, kind of the Melissa's book of reclaiming the Constitution for ourselves. I don't mean to dismiss that there are constitutional values here. I think there are really crucial, beautiful constitutional values here about what it means to have public officials with guns out on the street claiming to keep us safe, to keep you safe, but then saying, well, you can't record me while I'm keeping you safe, or you can't watch me while I'm keeping you safe. And the reason they're doing it is because they know full well that

• 32:35Speaker 03

  they're not keeping people safe, and that's not the community's understanding in that moment of what safety means. And so to come in and to reclaim that is incredibly powerful and should be protected by the First Amendment. Similarly, one of the things that I find invigorating about cop watching is that very often, people are really up in these community spaces on Fourth Amendment rights. I'm like, it's not just what can the officers do to me, it's what am I watching for? I'm watching for, are they stopping people, are they stopping people because they have the color of their skin, or because they have an actual reason to think that they could arrest this person? And I'm stopping, and I'm questioning that

• 33:17Speaker 03

  in the moment. And so I'm bringing in a popular understanding of the Fourth Amendment and what I think it should be in the moment. I think those things are beautiful. I also think a lot of what police and ICE officers do are technically legal,

• 33:29Leah Litman?

  Yes.

• 33:29Speaker 03

  technically constitutional, and are still immoral, disgraceful,

• 33:33Leah Litman?

  Yes.

• 33:33Speaker 03

  and something that we should politically fight against. And so there are groups that do ICE watching, and you know what? They're ready to go interfere with those ICE arrests. They're going to surround a vehicle to stop somebody from being kidnapped. Is that constitutionally protected? No.

• 33:50Leah Litman?

  Right.

• 33:50Speaker 03

  Might you want to do it anyway? Maybe. That's going to be like your own personal determination of safety.

• 33:57Leah Litman?

  Yeah. Okay, so you gestured earlier about, kind of, the take homes, you know, that might be coming to light out of this conversation. In particular, context dependent, it depends, right? Gap between what the law is on the books and what courts say the law is, and what the law is in practice, and also maybe the law not being enough. So any other kind of take homes or takeaways, you know, you want to make sure listeners get out of this conversation?

• 34:27Speaker 03

  I think this was implied in my last answer, but I just wouldn't want the hedging or the concerns about the law on the books and the law in practice to stop people

• 34:38Leah Litman?

  Yeah.

• 34:38Speaker 03

  from going out and doing ICE watching. I write about it because I think it's an incredibly powerful communal reclaiming of space, of the meaning of safety, of what it means to be in a community. I also write about court watching and practice court watching, and people are doing this in immigration court now, too, going to these public spaces together and trying to reclaim them. It's beautiful. It's important. It doesn't solve anything. It doesn't fix anything, but it's small steps toward reclaiming power and showing support for people who are being put in danger by the state. And so, I think people should look to ICE watching, cop watching, court watching happening into their community.

• 35:23Speaker 03

  At the same time, they should know that in this current climate, it's never, you know, quote, "safe" to do. You can never be 100% safe to do this.

• 35:31Leah Litman?

  Yeah, absolutely.

• 35:32Speaker 03

  And so that involves, like, with your group, knowing ahead of time and deciding collectively together what situations you're ready to get involved in and which ones you aren't. Are you going to pull over your car and record, you know, an ICE arrest happening? Is that constitutionally protected? Yes. Might you get shot? Yes.

• 35:52Leah Litman?

  Yes.

• 35:52Speaker 03

  Like, both things can be true, and there are no right answers. But I just wouldn't want my sarcasm about the First Amendment to stop people from knowing that, like, it's constitutionally protected and it's beautiful.

• 36:05Leah Litman?

  Yeah. So I guess, looking ahead, where do you think this area of law, you know, might be going, especially given the current climate?

• 36:13Speaker 03

  I think that there are a number of lawsuits bubbling up, including class actions about federal enforcement in DC, and Memphis, ICE conduct in LA. There's now ACLU lawsuits, I think, in Illinois and Minnesota. I'm sure they're happening in other places that are in the kind of motion to dismiss phase already, and courts are going to have to start to articulate some of these limits that we've been talking about. And again, the way the First Amendment jurisprudence is there, it's hard. I know we have a lot of Trump-appointed judges, but I have to think that the law is going to be articulated

• 36:54Speaker 03

  in a way, especially in this general context of the kind of arrests that ICE is making and that prosecutors are, prosecutions that federal prosecutors are bringing for conduct. My guess is we're going to start to see even more sharply defined right to record. At the same time, that courts are going to be like, well, if you were interfering, you know, we might see more examples of that. That might help understand what the law is and isn't. But we're going to see more of these cases.

• 37:24Leah Litman?

  Yeah. Well, thank you so much, Jocelyn Simonson, for joining. This was just a super informative conversation that I hope is very helpful to people. Again, Jocelyn is the author of the 2016 article "Cop Watching," and also the 2023 book Radical Acts of Justice: How Ordinary People Are Dismantling Incarceration. So if you want to learn more about how to engage, you know, with law enforcement practices and a way to push back against them, obviously that would be the book to check out. Thank you, Jocelyn, so much for joining.

• 37:54Speaker 03

  Thank you for having me.

• 37:55Leah Litman?

  I should also thank Luke Palmreiki for assisting in preparation for this episode.

• 38:06Leah Litman?

  Strict Scrutiny is a Crooked Media production. Our show is produced by Malady Raul and Michael Goldsman. Music by Eddie Cooper. Our team includes Matt Degrope, Ben Heathcote, Johanna Case, Kenny Moffett, Adam Lippert, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East.

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