On Monday, a University of Kentucky student posted a video on YouTube that showed him berating some police officers who entered his dormitory, according to Photography is Not a Crime. Warning: the video includes profanity.
According to Tyler Kingkade of The Huffington Post, the University of Kentucky has now fired the police officer in question, which makes it look like the student was pretty clearly in the right to object to the search. But why? To answer that, we need to address a few questions. First, what Fourth Amendment rights do students have in their public university dormitories? Kentucky courts haven’t reached the issue yet, but in some jurisdictions, such as Michigan (Smyth v. Lubbers, 398 F. Supp. 777 (W.D. Mich. 1975)) and Ohio (State v. Ellis, 2006 Ohio 1588 (Ohio 2006)), courts have explicitly declared that a student has the same "reasonable expectation of privacy" in a dormitory as in any other private dwelling. Hence, these courts have concluded that students’ Fourth Amendment rights attach to searches and seizures in dormitories. (And the recent case of United States v. Jones, 565 U.S. ___ (2012), could imply additional grounds for student Fourth Amendment rights resting in their property rights.)
Second, to what extent are students permitted to videotape law enforcement on public university campuses? Answer: they have First, Fourth, and Fourteenth Amendment rights that are implicated when they do so, as the United States Department of Justice noted in a May 14, 2012 letter. Although there is not yet a court case directly controlling in Kentucky, some federal circuit courts have also found that citizens enjoy First Amendment rights to record police officers publicly discharging their duties. See, e.g., ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2012). Contrary to the statement of the police officer at 1:26 and 5:40 ("We’re university administrators; we don’t need a warrant"), the law must be followed, and that means warrants or probable cause where required.
The final question this video raises is: Can you afford to be ignorant of your basic individual rights on campus? Listen to the statements made by the police officers throughout the video: "We are going to kick your ass out of this university." "Don’t even bother paying your tuition next semester." "What I’m going to do, is I’m going to have you removed from the university." Had this student been less well-informed about his rights, he may well have backed down when faced with such threats. Thankfully, FIRE has your back: check out the new-and-improved Guide to Free Speech on Campus. In addition, FIRE issues other Guides, including a Guide to Due Process and Fair Procedure on Campus. With the law at your fingertips, you can effectively fight back when your rights on campus are threatened.
If these officers violated the law (and it looks like they may have), this University of Kentucky student can file a 42 U.S.C. § 1983 lawsuit to remedy the violation of his Fourth Amendment rights. It is clearly established law in the Sixth Circuit (which includes Kentucky) that warrantless, nonconsensual searches of dwelling-places are unlawful. See Andrews v. Hickman County, 2012 U.S. App. LEXIS 24840 (6th Cir. 2012). Further, as the video clearly shows, the officers’ intrusion was not based on their confusion as to whether the Fourth Amendment applied to dormitories. Rather, they seem to think that the Fourth Amendment could not possibly apply to college administrators. This boggles the mind, especially in light of so much case law clearly establishing that public schools are state actors for constitutional purposes. Cf., inter alia, Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969); Goss v. Lopez, 419 U.S. 565 (1975). Neither campus police nor college administrators have a license to violate the Constitution. Acting on such an unreasonable belief could lead these police officers to be personally liable to the student in the video; they, not the University of Kentucky, would pay out of their own pockets.
As reported above, it looks like Kentucky has fired the police officer involved. I suspect the student is at least owed an apology from the university and its police department as well.
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