Professor Jocelyn Simonson Cited in U.S. Supreme Court Decision on Filming of Police


U.S. Supreme Court Justice Sonia Sotomayor cited Professor Jocelyn Simonson’s article, Beyond Body Cameras: Defending a Robust Right to Record the Police, 104 Georgetown Law Journal 1559 (2016), in her dissent to the majority opinion in Nieves v. Bartlett, a case about the constitutional right of civilians to talk back to or film the police in public without fear of retaliatory arrest.

In Nieves v. Bartlett, Sotomayor dissented from the holding that police officers are generally exempt from lawsuits for retaliatory arrests if they had probable cause to arrest someone. In the underlying case, plaintiff Bartlett claimed that a police officer at the “Arctic Man” festival arrested him in retaliation for the protected First Amendment conduct of refusing to talk to that officer and verbally intervening when another officer was attempting to interview a minor. As partial evidence for the retaliatory motivation behind the arrest, Bartlett claimed that the officer told him, “bet you wish you would have talked to me now.” Chief Justice John Roberts held for the majority that the fact that an officer has probable cause to make an arrest, as they did in Bartlett’s case, will usually defeat a retaliatory arrest claim in the absence of objective evidence that similarly situated people were not also arrested.

Sotomayor looked to Simonson’s work for the idea that “[s]martphones that become video cameras with the flick of a thumb are ubiquitous,” meaning that lay people who film the police create records that can facilitate individualized constitutional challenges to police conduct, even when there may have been probable cause to make an arrest. In Beyond Body Cameras, Simonson identified the multiple facets of First Amendment protection for filming the police in public, arguing that such actions are both an important challenge to police power in the moment and a means of collecting data about law enforcement conduct.

This is the second time that a Supreme Court opinion has cited Simonson’s scholarship. In 2017, her article, The Criminal Court Audience in a Post-trial World, 127 Harvard Law Review 2174 (2014), was cited in the majority opinion in Weaver v Massachusetts.

At the Law School, Simonson teaches courses in criminal law, criminal procedure, and evidence. She is co-director of the Center for Criminal Justice. Her schol­arship explores ways in which the public participates in criminal justice processes and how that participation has the potential to lead to broader changes in the justice system. Her articles have appeared or are forthcoming in top law reviews, including the Harvard Law Review, California Law Review, Columbia Law Review, and Georgetown Law Journal.