If you keep an eye on the news, you probably have heard that the ubiquity of smartphones with capable video cameras in recent years has drastically changed how we view many things. Go to a concert and you will see hundreds (if not thousands) of people videotaping the proceedings; no longer are the aisles at school functions filled with bulky tripods for large camcorders; and if there is an arrest or other criminal activity in progress in a public location you can be sure there is video rolling.
Technology has advanced a great deal from 20 years ago and the Rodney King beating, but one thing that has happened over the last decade is an expanded role and set of powers (real or perceived) for local and state police officers. Bottom line – in the name of ensuring safety, the very act of questioning a police order or asserting constitutional rights makes you a criminal in the eyes of many.
And one ‘rule’ that has been broadly enforced by many is that you simply do not record the actions of police in public places. If you violate this ‘rule’, you may have your property seized and/or destroyed, be assaulted physically by police, or even end up getting arrested.
Let’s be very, very clear – recording police offers conducting their duties in public places is protected by the constitution and legal. This has been affirmed countless times by courts and the Obama administration has been very clear and strong in asserting the citizen journalist rights.
Yet the practice of police harassment of citizen journalists has persisted – and it is widespread enough (Boston, Chicago, New York, various California cities, Miami, etc) that it simply cannot be dismissed as ‘a few bad apples’.
A couple of weeks ago the Washington DC Police Chief Cathy Lanier had to address a lawsuit filed against the city based on police telling a citizen to stop taking pictures of a traffic stop. The ACLU had supported the lawsuit, and hopefully the outcome will lead other police districts to make similar common sense moves.
Here is some of the directive by Washington DC Police Chief Cathy Lanier from ArsTechnica
Don’t interfere with recordings
“A bystander has the same right to take photographs or make recordings as a member of the media,” Chief Lanier writes. The First Amendment protects the right to record the activities of police officers, not only in public places such as parks and sidewalks, but also in “an individual’s home or business, common areas of public and private facilities and buildings, and any other public or private facility at which the individual has a legal right to be present.”
Lanier says that if an officer sees an individual recording his or her actions, the officer may not use that as a basis to ask the citizen for ID, demand an explanation for the recording, deliberately obstruct the camera, or arrest the citizen. And she stresses that under no circumstances should the citizen be asked to stop recording.
That applies even in cases where the citizen is recording “from a position that impedes or interferes with the safety of members or their ability to perform their duties.” In that situation, she says, the officer may ask the person to move out of the way, but the officer “shall not order the person to stop photographing or recording.”
She also notes that “a person has the right to express criticism of the police activity being observed.”
No seizing cameras or deleting recordings Lanier’s directive addresses another scenario that is becoming increasingly common: a civilian takes a photograph or recording that a police officer believes could constitute evidence of a crime. Under Lanier’s directive, an individual cop cannot take a recording device away from a citizen without his or her consent. “Consent to take possession of a recording device or medium must be given voluntarily,” she writes.
In the event that the cop believes the recording is needed for evidence but its owner isn’t willing to part with it, the officer is required to call his supervisor. The device or recording media can be seized only if the supervisor is present, only if “there is probable cause to believe that the property holds contraband or evidence of a crime,” and only if “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.”
In non-emergency situations, Lanier directs her subordinates to obtain a search warrant before accessing any information on a seized device. And, she writes, “photographs or recordings that have been seized as evidence and are not directly related to the exigent purpose shall not be reviewed” by the police.
Finally, she emphasizes that police officers “shall not, under any circumstances, erase or delete, or instruct or require any other person to erase or delete, any recorded images or sounds from any camera or other recording device. [Officers] shall maintain cameras and other recording devices that are in Department custody so that they can be returned to the owner intact with all images or recordings undisturbed.”
All of this seems to make perfect sense, yet has been a real stumbling block for some police departments. Officers have pursued those filming into their houses, knocked them down and destroyed phones and cameras – basic police state stuff. And their city administrations have supported the officers, so long as it wa in their interest. In Boston, for example, the city defended the officers actions arresting someone taking video of an arrest … until a lawsuit came along. Then they resorted to “Hanging the individual officers out to dry”, and ended up paying $170k in damages – money the cash-strapped city can ill afford.
Unfortunately, even since this directive in Washington D.C. came out there have been instances of police seizing phones, as in Houston an officer shot an unarmed man dead and then seized the cell phone of a woman trying to record the aftermath, and even though the Department of Justice keeps coming out in support of citizen journalists, police continue the practice.
I applaud Chief Lanier for making such clear and easily followed rules, and hope that they result in a better environment between citizens and police – and that other police forces stop their unconstitutional actions and support all of their citizens. Because I truly believe the path to freedom and security is NOT found in an increasingly authoritarian state where citizens are unable to question police or seek redress.