Mickey H. Osterreicher 2016-02-25 23:59:55
An update on the right to photograph and record in public Over the past year, the news has been filled with stories that involve recordings of police. Some were from dashboard cameras, others from body-worn cameras, but the majority of the recordings were from citizens using their cellphones. In some cases, the officers’ actions were commended. In others, they were vilified. But in all cases, the recording itself was the main focus. Not too long ago, the only way a photograph or recording could be widely viewed was if it were published in a newspaper or broadcast on television. The Internet and social media websites have changed that dynamic. Anyone is now able to post such images online to be seen around the world within moments. Thousands of such recordings are on YouTube and other social media websites, such as photographyisnotacrime.com. Thousands more have never been posted because nothing happened other than a law enforcement officer performing his or her official duty in a professional manner. As part of the investigations after each tragic shooting, authorities check surveillance cameras and appeal to the public for video and photos of the scene or the perpetrators that might yield valuable information or evidence. While those images are valued and sought, many police officers remain highly suspicious of anyone with a camera. Many still have the erroneous belief that they can order individuals to stop taking pictures or recording in public. Interference—and, in some cases, arrests—stemming from those actions continue to result in six-figure settlements borne by the taxpayers. To a lesser extent, these incidents have also brought about new written policies, procedures, and, on rare occasion, disciplinary action against the officers involved. As concerns over national security grow in the wake of terrorist activities, we may once again see a revival of the “If You See It, Say It” campaign, under which many police agencies have characterized photography as a “suspicious activity.” This comes from the National Security Institute Nationwide Suspicious Activity Reporting Initiative, as called for in the National Strategy for Information Sharing and used by the Joint Terrorism Task Force. The area labeled “Incident of Event Description” often includes a checkbox for “photography.” That section also sometimes contains a disclaimer stating that “these activities are generally First Amendment-protected activities and should not be reported absent articulable facts and circumstances that support the suspicion that the behavior observed is not innocent … but rather reasonably indicative of criminal activity associated with terrorism or other crimes, including evidence of pre-operational planning related to terrorism.” Unfortunately, this disclaimer—written in small type—is often overlooked. An ongoing case involving such protected activities stems from the arrest of a news photographer who was recording police officers on a public street. Photojournalist Mannie Garcia was arrested in June 2011 by Montgomery County, Maryland, police for disorderly conduct. Garcia alleges that at the time of his arrest, officers took the video card out of his camera and never returned it. Garcia was found not guilty after a bench trial in December 2011, but during the intervening months, he lost the renewal of his White House press pass from the U.S. Secret Service due to the pending criminal charges, making it impossible for him to do his job. Garcia filed a federal civil rights lawsuit for violating his rights under the First, Fourth, and 14th amendments to the U.S. Constitution and the Maryland State Constitution. The suit named three officers, along with the police chief and the county, and alleged false arrest, malicious prosecution, assault and battery, violation of civil rights, failure to properly train officers, and failure to supervise and discipline officers. The complaint cited a seminal case concerning “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space [as] a basic, vital, and well-established liberty safeguarded by the First Amendment.” Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011). “Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’” Attorney’s fees and damages in the Glik settlement cost Boston citizens approximately $172,000. Another First Circuit case, Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), extended that right to recording traffic stops “in the absence of a police order to stop filming or leave the area.” After that ruling, the town of Weare, New Hampshire, paid $57,500 to settle the case. The U.S. Department of Justice (DOJ) reinforced this finding by filing a statement of interest (SOI) in Sharp v. Baltimore City Police Dept., Civil No. 1:11-cv-02888-BEL (D. Md. Jan. 10, 2012), a federal civil rights lawsuit against officers (and the department) who seized the cellphone of a man who had recorded them making an arrest and then deleted not only those files but much of what was stored on his phone. (The DOJ made its statement as part of its responsibility to enforce federal civil rights statutes that prohibit state and local law enforcement agencies from engaging in conduct that deprives persons of their rights under the Constitution and laws of the United States.) The DOJ explained that “the right to record police officers while performing duties in a public place, as well as the right to be pro tected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution, [they] are consistent with our fundamental notions of liberty, promote the accountability of our government officers, and instill public confidence in the police officers who serve us daily.” The DOJ followed up by entering a second SOI in Garcia v. Montgomery County, Maryland, to deal with questions not directly addressed in Sharp, the answers to which they deemed critical to upholding citizens’ constitutional rights. The DOJ urged the court to find “that both the First and Fourth amendments protect an individual who peacefully photographs police activity on a public street, if officers arrest the individual and seize the camera of that individual for that activity.” The DOJ also expressed its concern that discretionary charges, such as disorderly conduct, loitering, disturbing the peace, obstruction of governmental administration, and resisting arrest “are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights.” The government asked that “the court view such charges skeptically” to ensure that individuals’ First Amendment rights are protected, stating that “core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges.” The DOJ also noted, as did the Glik court, that the public and members of the media have a “coextensive” First Amendment right to record police officers performing public duties and that the court should not make a distinction between the public’s and the media’s rights to record. The DOJ went on to state that “the derogation of these rights erodes public confidence in our police departments, decreases the accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.” While there may be exigent circumstances under which a recording device may be temporarily seized to preserve a serious crime’s evidence that may otherwise be lost or destroyed, the DOJ addressed an all-too-common problem in which police are deleting or destroying such recordings. In helping to craft comprehensive guidelines for the Baltimore Police as part of the $250,000 settlement in Sharp, the DOJ stated, “Under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed.” Other cases have negated the qualified immunity defense often asserted in civil rights cases by articulating that the right to record was clearly established in the jurisdiction in which the incident took place. They are: • American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 586 (7th Cir. 2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 651, 184 L.Ed.2d 459 (2012), holding that an Illinois eavesdropping statute did not protect police officers from a civilian openly recording them with a cellphone (case settled for $645,000). • Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995), recognizing plaintiff’s videotaping of police officers as a “First Amendment right to film matters of public interest.” • Smith v. City of Cumming, Georgia, 212 F.3d 1332 (11th Cir. 2000), finding plaintiffs “had a First Amendment right, subject to reasonable time, manner, and place restrictions, to photograph or videotape police conduct.” Trial courts in the 2nd and 5th circuits also have held that that right is clearly established. In Higginbotham v. City of New York, No. 14-cv-8549 (PKC)(RLE), 2015 U.S. Dist. LEXIS 62227 (S.D.N.Y. May 12, 2015), “the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact ‘clearly established’ at the time of the events alleged in the complaint.” In Buehler v. City of Austin, No. A-13-CV-1100-ML, 2015 U.S. Dist. LEXIS 20878 (W.D. Tex. Feb. 20, 2015), “the First Amendment protects a private citizen’s right to assemble in a public forum, receive information on a matter of public concern—such as police officers performing their official duties—and to record that information for the purpose of conveying that information.” Mistrust by law enforcement of those with cameras and the misguided belief that photography and recording in public places may be restricted under color of law will continue unless proper guidelines and policies are implemented. But those policies will remain only pieces of paper without continuous reinforcement, proper training, and, where merited, disciplinary action against those officers who violate departmental guidelines. In a time of technology and terrorism, it is more important than ever to properly balance public (and officer) safety against the rights of citizens. If we are to truly remain a free society, that is exactly what must be done, especially when encountering those with cameras. Mickey H. Osterreicher is the general counsel for the National Press Photographers Association, which represents 7,000 visual journalists. A former print and broadcast photojournalist with nearly 40 years of experience, he also has been a uniformed reserve deputy with the Erie County (New York) Sheriff’s Department since 1976. He has helped develop guidelines and policies for a number of departments, including the Washington, D.C., Metro Police Department and the Los Angeles County Sheriff’s Department. He is a member of the International Law Enforcement Educators and Trainers Association and has presented workshops at the Legal Officers Section of the International Association of Chiefs of Police and the National Sheriffs’ Association, among others. He is also a member of the Public Recording of Police Advisory Committee of the IACP and has National Incident Management System certification.
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