Sixth Circuit rules officers have no First Amendment right to record interviews during police misconduct investigations

Technology. It is the proverbial blessing and curse that has resulted in an increasing amount of litigation in the courts. One such lawsuit presented the issue of whether the First Amendment provides police officers and their union representatives a constitutional right to record or videotape interviews conducted in the course of an administrative investigation. In its recently-issued decision in Hils v. Davis, 52 F.4th 997 (6th Cir. 2022), the Sixth Circuit Court of Appeals concluded that it does not.

The matter arose from allegations made by Sergeant Daniel Hils, President of Fraternal Order of Police Lodge 69 (“the Union”), regarding behavior that he allegedly observed during the City of Cincinnati’s Citizen Complaint Authority (“the Authority”) investigations into police misconduct. Specifically, Hils claimed that one of the Authority’s investigators selectively turned off their recording device in a police officer’s interview during those periods when the officer made exculpatory statements. Hils further claimed that this investigator threatened an officer before beginning the officer’s investigatory interview.

After making a complaint to the Authority about his concerns, Hils attempted to record an investigatory interview of a police officer he was representing. The investigator stopped the interview when Hils refused to stop recording, and the next day, the Authority formally implemented a policy prohibiting officers or their representatives from recording the interviews. Despite the new policy, Hils again tried to record interviews of two officers he represented but was promptly stopped by the Authority.

Hils and three affected officers then filed a lawsuit against the City, an Authority investigator, and the director of the Authority, contending that the new policy violated their free-speech rights under the First Amendment. The Union also filed an unfair labor practice charge against the City regarding the same conduct, resulting in a partial settlement agreement in which the City agreed to record the entireties of all interviews going forward. As for the lawsuit, the district court rejected Hils’ and the officers’ claims, ruling that the First Amendment does not include a right to record a government investigation. Hils and the officers appealed.

On appeal, the Sixth Circuit affirmed the district court’s ruling, stating that, although “there are many potential ways to think about this claim, none of them provides a cognizable basis for relief.” In reaching its conclusion, the Court looked not only to the text of the First Amendment but to the history and tradition of making recordings during governmental investigations and fact findings, finding that no such tradition exists. The Court further pointed to the absence of any legal precedent supporting Hils’ and the affected officers’ claimed First Amendment right. The Court acknowledged that there is a First Amendment right to gather information in public settings but found that the investigations at issue were not open to the public, and “[t]he Constitution simply does not impose a duty on governments to provide sources of information not available to members of the public.” In support of its reasoning, the Court cited to “case after case” where the Supreme Court has recognized the power of federal and state governments to safeguard sensitive information within their control.

In the end, the Court held that the Authority’s policy prohibiting police officers or their representatives from recording investigatory interviews was permissible, as the Authority had legitimate interests at stake — including maintaining order and fairness during its interviews and ensuring the integrity of its investigations — and its policy was rationally-related to achieving those interests.

The Court’s decision requires public employees and their unions to achieve through collective bargaining what they could not achieve through the law. As a result, public employers should expect to see an increased focus on their internal investigation processes and contract proposals seeking to secure additional protections and process for union-represented employees.