Major Victory for Smartphone Recordings of Police
From 2012.
It is no longer a crime in Washington, D.C. for a citizen to photograph or make a video of something that a policeman is doing publicly in the line of duty. This is now official policy of the police.
This was forced on the police by a lawsuit from a man who was arrested two years ago for doing what was fully legal but prohibited by the police. Now the department has adopted a policy which acknowledges that this is legal.
This policy will be used by the ACLU and other First Amendment rights organizations as they sue police departments across America. They will pressure cities and counties to adopt this policy in order to avoid further lawsuits.
Here are parts of the new regulations.
I. POLICY
The Metropolitan Police Department (MPD) recognizes that members of the general public have a First Amendment right to video record, photograph, and/or audio record MPD members while MPD members are conducting official business or while acting in an official capacity in any public space, unless such recordings interfere with police activity.
II. REGULATIONS
A. Members are reminded that photography, including videotaping, of places, buildings, structures and events are common and lawful activities in Washington, D.C.
1. If a person is taking photographs or recording from a place where he or she has a right to be, members are reminded that this activity by itself does not constitute suspicious conduct.2. Members shall refer to GO-HRC-802.06 (Suspicious Activity Reporting Program) for guidance concerning identification and reporting of suspicious activities.
B. In areas open to the public, members shall allow bystanders the same access for photography as is given to members of the news media [See GO-SPT-204.01 (Media)]. Members shall be aware that:
1. A bystander has the same right to take photographs or make recordings as a member of the media, as long as the bystander has a legal right to be present where he or she is located.RECORDING OF MEMBERS BY THE PUBLIC (GO-OPS-304.19) 2 of 6
2. A bystander has the right under the First Amendment to observe and record members in the public discharge of their duties.
3. Public settings include, e.g., parks, sidewalks, streets, and locations of public protests; but that protection extends also to 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.
4. The fact that a bystander has a camera or other recording device does not, however, entitle the bystander to cross a police line, to enter an area that is closed to the public, or to enter any area designated as a crime scene.
C. As long as the photographing or recording takes place in a setting at which the individual has a legal right to be present and does not interfere with a member’s safety, members shall not inform or instruct people that photographing or recording of police officers, police activity or individuals who are the subject of police action (such as a Terry stop or an arrest) is not allowed; requires a permit; or requires the member’s consent.
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Published on July 30, 2012. The original is here.
One of the most popular television shows is Blue Bloods. It centers around the New York Police Department.
Until a year ago, the show had a weekly segment where there would be an arrest by two uniformed department members, a man and a woman. Several years ago, the show began to feature smartphones in every arrest on the street. We would see half a dozen citizens recording whatever the police officers were doing. That was when I realized that what had happened in 2012 was really significant. The public now knows that Americans have the right to make a recording of whatever the police are doing on the street. Furthermore, they can legally upload their videos to YouTube. The scriptwriters understood this, and the characters learned how to adjust to this new reality.
Today, as always, every bureaucracy fears exposure of its blunders. This fear is second only to the fear of a budget cut. But since budget cuts never happen, fear of exposure is, from an operational standpoint, their greatest fear. People can get fired for a blunder. I can think of no technology that has produced more fear on the part of police departments than the smartphone.
The smartphone is a major barrier against America's becoming a police state. A bureaucrat can make life miserable for a citizen, but the police now have a major restraint on what they do. They must do it by the book. The ACLU and citizen's rights groups have access to the book. They can force a rewriting of the book. That happened in Washington, D.C. in 2012.
This is from the self-help legal site, Nolo.com.
You see an officer talking to a guy on the street, and things are getting heated. You’re a concerned citizen who has seen how helpful a bystander’s video can be in determining whether a police officer acted lawfully. After all, isn’t a recording the most accurate way to observe and report police conduct? Aren’t you simply doing your civic duty to document the interaction? . . . .Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) police officers in public while they are performing their duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law.
The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).)