Every court to consider the question has held that there is a constitutional right to record police and other government officials in public. And the Supreme Court has held that, despite the absence of an express authorizing statute, people may sue federal officials for the violation of at least some rights under the so-called Bivens doctrine. Whether this includes violations of the right to record federal agents in public remains an open question that this case squarely presents.

The case arose when Tobias Jones was wandering around Washington, DC, videotaping his experiences and various sights along the way. He noticed a strange-looking building with an open hangar-style door and began recording it from the sidewalk. A Secret Service agent emerged from the structure and advised Jones that he could not point his camera towards the hangar door. Jones asked if recording it was illegal, and the agent told Jones that he “cannot take a picture inside of here.” An argument ensued, with one agent physically pushing Jones’s camera aside and another demanding his identification and ordering him away from the building. The agents then informed Jones that he was being detained, handcuffed him, and searched his belongings—including his backpack, which they said could contain explosives. Jones was then released and told he was free to leave. Jones sued for violations of his First Amendment right to record in public and his Fourth Amendment right to be free from unreasonable searches and seizures.

The district court dismissed the case on the grounds that national-security concerns arising from the Secret Service’s protective duties precluded extension of a Bivens remedy to Jones’s asserted claims.

Cato’s brief in support of Jones’s appeal to the DC Circuit argues that Bivens squarely covers his claims because they arise out of an unreasonable search and seizure and a legally baseless infringement of his right to record government officials in public. And while it is true that Secret Service agents do sometimes perform sensitive protective duties from which bona fide national-security concerns might arise, they also perform routine law-enforcement functions that do not plausibly implicate national security. The district court’s mistaken reading of Jones’s complaint to infer national-security concerns where none are alleged (or plausibly inferable), together with the insufficient weight the court gave to the importance of the right to record police and other government officials in public, are errors that the DC Circuit should correct to ensure that federal agents do not have carte blanche to prevent people from exercising their constitutional right to monitor and record them as they go about their duties in public.