General Question

rojo's avatar

If there is not a law for something or against something do you have a right to do it in the US?

Asked by rojo (21952points) August 5th, 2014

Listening to Democracy Now today one of the news items discussed was whether or not a citizen has the right to film police officers in the performance of their duties. Evidently some courts have said yes while others have said no.

I found interesting what Norman Siegal, former director of the New York Civil Liberties Union for 15 years, had to say on the subject. According to Mr. Siegal “In the absence of law, saying you have a right, there’s usually not a right.”

Is this correct? You have no right to do something unless there is a law allowing it? For some reason (probably years of civics class and, evidently, government propaganda) I was under the impression that as long as there was not a law AGAINST it you could do whatever you wanted here in the US.

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16 Answers

El_Cadejo's avatar

Great question. I don’t know the answer to it and would be interested to hear from someone who does. On a related note though I once saw an officer in Philly slam someone to the ground and cuff them for “obstruction of justice” when all they were doing was filming them. I reported the incident to the police office but they shrugged it off and since I myself didn’t have any evidence of the events there really wasn’t much to be done.

zenvelo's avatar

The Ninth and Tenth Amendments address this issue:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

However, the clause “are reserved to the states respectively” has been interpreted by most citizen v. state or locality as meaning the state gets to boss you around.

If we ever get a Supreme Court that believes in individual liberty, a good lawyer would be able to set a precedent at the Supreme Court to uphold a citizen’s right to film police. But conservative judges have on occasion determined it is interfering with the police’s ability to protect public safety.

I know that if it came down to a Corporation filming police the current court would side with the Corporation.

jaytkay's avatar

You can’t be indicted for a crime without a statute defining the crime.

kritiper's avatar

Not exactly. People come up with new gimmicks all the time to screw people and that can never be tolerated whether there is an exact law against it or not. Sooner or later, the person in question will violate another’s civil rights. And the person trying to film or whatever may open his or her self to a lawsuit which they, the person’s being filmed, have a right to pursue as well, depending on the circumstances. Is it worth the risk?

jaytkay's avatar

whether there is an exact law against it or not

Prosecutions are always about a particular law.

There can be arguments about how that law is defined. And whether it is constitutional, That’s why we have appeals to a higher court.

But in a criminal case there will be charge involving a particular statute.

JLeslie's avatar

I don’t think I would say you have a right to do it in the absense of a law. I think when we talk about rights we also need to consider whether a behavior is ethical or moral. The person might not be able to be arrested and convicted absent a law, but we can still say what they did does not fall under a protected right in my opinion. I think prosecutors can try to apply a law that does not specify the exact action, but that might be close enough that the spirit of the law might apply. However, I think that is a tough sell. I think what happens more is a person gets out of being convicted of a crime based on laws that can be stretched beyond their original scope.

LuckyGuy's avatar

There are so many laws on the books even if an act is not mentioned it can fit into one category or another.

My son was a precocious 2 year old. One day as I was sitting in the kitchen through the doorway, I happened to notice him walking back and forth between the bathroom and the family room carrying his little sand pail. Cute. Until I got up to take a picture of my little cherub. He was filling his pail from the toilet , pouring the water on the couch and splashing in it ! I asked him why he did that and he said: “You didn’t tell me not to.”

We are not 2 years-olds and secular laws are pretty well defined.

I’m curious. Can you come up with an offense that is not listed? Start with this tree. Are your actions hurting: people or property or wildlife? Now figure intent. Was this accidental, intentional, or coincidental with another infraction? How much will it cost to correct or right the situation? Less than $1000, more than $1000 but less than $10,000, etc. Can it ever be righted?
And so on… There is a statute that covers it.

ragingloli's avatar

That is what lawyers are for.
They will pick an existing law that seems close to what you have done, and then start twisting words to fuck you over with it.

LuckyGuy's avatar

@ragingloli Or, if you pay them, twist the words to get you out of it.

Sure you were driving drunk and crashed into the light pole. The facts are indesputable and my client regrets his transgression. But was it his fault the 40 year old wooden, and likely termite infested light pole decided at that moment to fall on Mrs McKeever and her Pomeranian with expired tags walking on the sidewalk while blatantly ignoring the mandatory poop collection ordinance specifically passed for the protection and safety of the community? That law was passed unanimously over 10 years ago so the fine people of this community need not walk in fear of messing their shoes.
Rather than charging him with manslaughter I contend my client be nominated for citizen of the year for removing a blight that has been terrorizing the neighborhood.

It seems like new laws are written every day but they appear to be rehashes of existing laws or can easily be covered by others.

CWOTUS's avatar

This is a good question, and some good responses so far. This is worth the interest.

You may be interested in the results of a google search for “everyday felonies”. Here is an interesting look at some of the felonies (not simple misdemeanors, or twisting of “obstruction of justice” or “interference with a police officer in the conduct of his duties” or even “disturbance of the peace” nonsense) – these are actual felonies which some people run afoul of – with zero intent to become “criminals”.

LuckyGuy's avatar

@CWOTUS Let’s not forget the teenage girls in NJ who took pictures of their boobs and sent them (unsolicited) to a 14 year old boy in their class. Because the girls (the senders and the subjects) were underage the pictures were considered child pornography and they were charged with distribution of child porn. Since he was under age there was another charge involving a minor. (I forget the exact charge.)

I was trying to think of something new… and can’t come up with one.
Consider the example of a UAV outside your window. The owner can be charged with being a peeping tom or criminal trespass or disturbing the peace..
Or you can blow it out of the sky with your 12 gauge and be charged with destruction of property. or interference with police officer duties. Or you might be covered by Stand Your Ground laws by stating you thought your life was in danger since the device could have been armed and was clearly aiming at you.

Pandora's avatar

I don’t think he was completely right or wrong. There is no law against farting a stinky fart in a crowded elevator and yet it isn’t something people should do.
You probably shouldn’t film an officer performing his duties because you do not know if plastering their face all over the web will endanger them but I don’t see the harm if it was something only turned over to the authorities to show that the officer was in the wrong. If they were not doing anything outside of their duties than I would think there is no need to film them.

It is a public job and should always be under scrutiny when they are dealing with the public. I grew up in NYC and in the70’s and 80’s I will say there were a lot of cops who should’ve never been cops. They took the job to either boost their egos or to be legal bullies or simply to get a steady check. It is not a job for everyone and someone needs to police them. I think these films should only be released if the court doesn’t punish the bad cops because they want to cover things up and save the city money.

CWOTUS's avatar

Since it is not always clear to even Americans, much less foreigners with only vague notions of what the United States is all about, the federal and state constitutions were written with the express purpose to describe the limitations as well as the functions of government. So the general response to this question and to others like it should be: “If there is no law against it, then it should be a legal activity”, but that doesn’t mean that everything that’s “legal” or at least “not specifically illegal” is right to do.

There are times and places where even actions that are perfectly legal and sensible (thanks, @LuckyGuy) under normal conditions are detrimental to law enforcement, life-saving and other higher-priority concerns, and those activities may then be prohibited at the time as they interfere with the more important activities. But those should be rare, too.

Even so, this doesn’t prohibit police from making spot decisions to disallow perfectly legal and non-interfering activities, to make an arrest or detention for continued activity after warning to cease, and which may or may not result in later prosecution. If we’re going to stop unwarranted detention, arrest and prosecution, then we have to sue the bastards as they do these things, because even if the things police and prosecutors do sometimes aren’t legal, they can get away with continuing to do them if no one takes them to court or otherwise obtain judgments against them.

zenvelo's avatar

Of course, you might not get arrested for interfering, but get followed around the clock and then get arrested on trumped up charges.

And your wife get arrested too.

snowberry's avatar

Didn’t read all of the above, but if it’s “against the law” to film someone, what about all those security cameras? A lot of them are put up by private citizens and businesses. Are THEY against the law? I don’t think so. So the idea that it’s against the law to film someone sounds bogus to me. It’s also not against the law for me to put a “nanny cam” in my home. And it’s not against the law to put a dash cam in my car. In fact as soon as I can afford it, I intend to install one. It might save me a lawsuit.

In addition, many police officers are starting to wear body cams to document what’s going on. In the absence of body cams, private citizens filming police activity is a GOOD THING!

And don’t forget all the times police officers committing felonies have been filmed by private citizens. Nothing happens until they put it up on YouTube or hand it to the local TV news station. Then suddenly the officers are held accountable and something is done about them. So if it’s “against the law”, it is so to protect the public from the truth and protect the police from being found out.

Bill1939's avatar

I suspect that the quote “In the absence of law, saying you have a right, there’s usually not a right.” may have been taken out of a context that would have made clear its facetiousness (at least I hope so). In most cities one may not operate a business without being granted (at considerable cost) as many as four licenses, local, county/parish, state and federal. One way or another all laws are tax laws. In the presence of laws, saying you have a right is usually wrong.

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