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Your Right to Record Law Enforcement

As most of you know, the Civil Liberties Defense Center has defended the rights of activists, people of color, those experiencing emotional distress, and many other marginalized and targeted communities both on the streets and in the courtroom. We work extremely hard to hold police accountable for their abuse of the tremendous power that ‘we the people’ have bestowed upon these public servants who are sworn to protect and serve our communities in exchange for the somber authority to arrest or kill their fellow humans under extremely limited circumstances. Federal civil rights lawsuits are one way that the CLDC attempts to make our communities safer, but these cases are difficult to win and can be very expensive to litigate. Not everyone who has been the victim of police misconduct or racial profiling will be able to seek justice in the Courthouse, nor do the Courts have the ability to make victims whole after they have been gravely harmed by police.

In light of the shortcomings of the legal system and growing police violence against people, there are many ways that communities can help each other to defend their rights to be free from unlawful searches, seizures, and cruel and inhumane treatment by law enforcement officers.

One way to assist with police accountability is to audio and/or video record police whenever you see a disconcerting police interaction. In the event a citizen complaint, public inquiry, or federal lawsuit is necessary, or if someone ends up charged with a crime, the best evidence to document police misconduct, excessive force, unconstitutional actions, or unprofessionalism is by audio and video recording the incident. Bias is something every person experiences unintentionally and/or subconsciously—whether that bias manifests as racial discrimination and profiling by the police, or the very strong bias in this country for jury members to see police officers as protectors of peace who would never lie. It is the State’s job to play on this bias and use the police officer’s word against a suspect or victim’s word. As a result of this inherent bias present in many jurors or police auditors, video documentation can have an enormous effect of eliminating this bias and bringing abuse to light. In addition, if police know they are almost always being recorded, they may act more professionally and lawfully. Finally, use of the Internet has allowed people to share videos and document the huge and growing number of victims of egregious police murders and abuse in the U.S.

A Few Reasons to Copwatch*

*Copwatching is a name used to describe individuals or groups of people who record police interactions on the streets of their community. Some organize copwatching in particular neighborhoods during certain hours, or during protests or rallies, and others spontaneously video record police as they go about their daily lives. For more info on copwatch, check out: berkeleycopwatch.org, copwatch.org, and portlandcopwatch.org.

* Help protect marginalized community members (race, economic status, perceived disability or gender differences, etc.) and reduce racial profiling and bias in targeted neighborhoods.

* Reduce police harassment, sexual impropriety, abuse and corruption.

* Police officers do not want a negative video of themselves going public for their family and neighbors to view. Videos that show cops acting unlawfully or inappropriately should be shared with the local news as well as on social media to educate people about the reality of police misconduct as well as to effectuate positive changes in police culture.

* We need to educate people and promote the right to record police officers, make copwatching a norm, and protect people while asserting their rights.

First Amendment Rights to Record Police

You have a First Amendment Right to record the police—public servants performing their public duties in a public place have no right to privacy regarding your right to record their actions. Courts have ruled that “Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers. Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Therefore, your right to record police is limited only by the usual “reasonable time, place, and manner restrictions” which can be placed on acts protected by the 1st Amendment. Such restrictions on your right to record might include: You cannot record police officers if you are knowingly trespassing to get your footage; the police can order you to step back or record from a distance under circumstances where a suspect might have a gun or dangerous weapon; you can’t create a situation where your actions are clearly causing serious interference with the police investigation (not an exclusive list).

Fourth Amendment Right to Keep Your Recordings From Police

The 4th Amendment ensures your right to privacy. This protects your right to record police by making it illegal for a law enforcement officer to “unreasonably” search your recording device or confiscate it. As we discussed in a previous post, police do not have the right to view the contents of your cellphone or other recording device without your consent or a warrant. Make sure your phone is password protected, and if you obtain critical video, upload it, email it, or attempt to ensure that if your phone is unlawfully seized or damaged by police, your video will be safe. Assert your fourth amendment right by always stating, “I don’t consent to this search and/or seizure.”

Fourteenth Amendment Right to Due Process

The 14th Amendment and your right to due process means there must be some fair procedure owed to you if an officer does confiscate your possessions. Police officers violate the due process clause of the 14th amendment when they deprive individuals of their recordings without first providing notice and an opportunity to object.

Where You Can and Cannot Record Police

You can record police (and everyone else) in public spaces or anywhere you are legally allowed to be. This includes: your home, your car, a place of business, the common areas of public and private facilities and buildings, parking lots, city streets, sidewalks, and parks. *We do not recommend that you record a police officer when you are the target of their interest, particularly if they order you to stop recording. Even though you are legally allowed to record a police officer who pulls you over, the officer may have a hostile reaction in this situation, and if possible, it is best to have a friend do the recording. You cannot enter locations you are prohibited from entering simply for the purpose of recording the police. This includes: private property where the owner or person in charge has forbidden you from entering or there is a clear ‘No trespassing’ sign, or an established crime scene (this needs to be apparent to a reasonable person– for example, there is crime scene tape surrounding the location).

Learn How to Use your Camera Effectively

Your video will only be powerful if you can capture and relay the critical events, which often means getting close enough to record badge names and numbers, obtain clear audio, and see cop hands and weapons as they are being used to hurt someone.

Cops tend to cluster around the victim to hide abuse, so get as close as possible, or hold the camera over your head and point it downwards. If you are filming at night, you will need a light; consider using a good microphone to capture audio. Try to captures some wide-angle video of the entire scene if possible and try to brace your recording device to reduce shakiness.

As mentioned earlier, make sure you get critical video off sight (upload immediately or leave the scene a.s.a.p., and if needed, get it to a lawyer for security). It’s also important to make sure you say the date, time, and location of the situation you are recording at regular intervals. If you are actively copwatching, buddy up–one person films while the other person keeps an eye on what is going on around you. Look for other incidents taking place around you such as dangerous activity in close proximity– especially behind you—or watch for police approaching the videographer to disrupt filming. You should not narrate the scene while recording if possible. If you do speak into your camera, do not say anything derogatory about the officers or the situation. If your video is needed in Court, this type of narration will only make you look less credible. You want to appear as neutral or unbiased as possible to maximize your credibility both on scene and possibly in court as a witness. Pursuant to Oregon law (a 2-party consent state), you can state, “I am recording” into the camera, but this is not required under U.S law. Film the entire incident if possible – Prosecutors look for gaps in videos and try to use those gaps as a basis to object to its admission in court.

Important Case Summaries

In 2012, the CLDC won an important federal court victory, Josh Schlossberg v. Eugene Police, Officer Bill Solesbee, and the City of Eugene, Oregon, upholding the right of activists to record police. Josh Schlossberg was a Eugene environmental activist lawfully picketing and leafleting outside an Umpqua Bank. Eugene Police Sergeant Solesbee told Schlossberg he needed to leave and then went inside the bank. Although Schlossberg was legally allowed to be there he decided to pack up anyway. Solesbee came out of the bank before Schlossberg was entirely finished packing and Schlossberg took out his camera to record the interaction and told Solesbee numerous times he was recording. Solesbee grabbed Schlossberg’s camera, threw him to the ground, injured him and arrested him. Solesbee then forcibly viewed the contents of Schlossberg’s camera. Schlossberg brought this case claiming Solesbee violated his 1st and 4th amendment rights when he searched and seized him and the camera without a warrant, as well as used excessive force upon him resulting in injuries. A jury found the Eugene police officer liable, and the Oregon district court held that Solesbee violated Schlossberg’s constitutional rights on all counts. The judge likened a camera or cellphone to a file cabinet filled with thousands of private documents and therefore a warrant should be required to access that material as well.

Department Of Justice Memo: After the Schlossberg court ruling, the United States Department of Justice issued a memo in 2012 pertaining to a police misconduct case that happened in Baltimore, MD involving a police officer who confiscated and deleted a video taken by a bystander of the officer making an arrest. The memo states that the United States believes that any resolution to the above case “should include policy and training requirements that are consistent with the important First, Fourth, and Fourteenth Amendment rights at stake when individuals record police officers in the public discharge of their duties. It also emphasizes that police must not intimidate or coerce people who are recording them. This memo has been the precipitating force driving many police departments around the country to implement revised policies and training protocols regarding the right to record police.

Glick v. Cunniffe: Simon Glick was arrested for using his cellphone to record police officers making an arrest of another person in the Boston Commons. The charges against Glick were dropped and he filed a suit claiming that his arrest was a violation of his 1st and 4th amendment rights. The United States Court of Appeals for the First Circuit held that Glick was exercising clearly established 1st amendment rights in filming the officers in a public space and that his 4th amendment was violated by his arrest without probable cause.

Riley v. California: Two cases from California and Massachusetts consolidated which involved people being charged or found guilty due to evidence obtained from a warrantless search of a cell phone. The United States Supreme Court held that the interest in protecting officer safety did not justify a warrantless search of a cell phone, and interest in preventing destruction of evidence did not justify a warrantless search of a cell phone.

In addition, the following websites further demonstrate the importance of copwatching and/or recording police:

http://www.theguardian.com/us-news/video/2014/dec/04/i-cant-breathe-eric-garner-chokehold-death-video

http://www.npr.org/blogs/codeswitch/2014/07/29/335847224/what-we-see-in-the-eric-garner-video-and-what-we-dont

http://www.democracynow.org/blog/2015/4/13/ramsey_orta_man_who_filmed_nypd

http://www.cnn.com/2014/09/11/us/ferguson-michael-brown-shooting-witnesses/

Lauren Regan is an attorney and executive director of the Civil Liberties Defense Center.

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