Videotaping the police: Officer safety and policy issues explored

Absent some clear violation of law unrelated to the act of videotaping cops' actions, officers are advised to carefully consider the legalities surrounding the decision to arrest

Smile, you’re on candid cell phone camera. Okay, don’t smile. You’re still on candid cell phone camera. The issue of cops being “caught on tape” is not new, but is sure does seem to be reaching a new level of aggressiveness on the part of the camera-wielding citizens and the attention-craving mainstream media. Over the weekend a few of the so-called “all news” stations had a story in heavy rotation about a fatal police shooting in Miami Beach captured by a Florida man on his cell phone camera.

What went unmentioned in most of the media coverage of that OIS “caught on tape” is the fact that the suspect who was fatally shot during the incident had only moments before fled a traffic stop and injured several police officers by striking them with his vehicle. As I said, that part of the story wasn’t the focus — it was the fact that would-be paparazzi Narces Benoit recorded the shooting on his cell phone, and later claimed to hide the memory card in his mouth “before police smashed his phone and handcuffed him.”

Also making news over the past weekend was a bill that passed the Connecticut State Senate — and is on its way to the State House of Representatives for consideration — that would ensure the public’s right to photograph or record police officers. Further it would apparently give citizens a new way to bring civil charges against law enforcement officers who those citizens allege ‘wrongly arrested them’ because they were taking pictures and/or videos of police. The bill was proposed by state Senate Majority Leader Martin Looney — seriously, that’s really his name — who reportedly said police officers would only have “something to worry about if they were conducting themselves improperly.”

The Looney Bill (sorry, I couldn’t help myself) was proposed in response to a few incidents in which citizens were arrested for recording incidents, with the arrests later dismissed. In 2009, East Haven officers arrested a priest named Jim Manship after he recorded on video the alleged harassment of some local store owners, and the 2010 arrest of a man named Luis Luna as he recorded the arrest of another individual.

“Under the bill, the officers are liable for a civil action if they lack a reasonable basis for believing that they are enacting a criminal or municipal law; they are protecting public safety; they are preserving the integrity of a crime scene or criminal investigation, or are safeguarding the privacy of any person, including a crime victim,” said a report in the Litchfield Register Citizen.

In a very real sense, these are two totally unrelated events — 1.) an OIS in South Florida which by all accounts appears to be a totally righteous shoot, and 2.) a piece of legislation in Connecticut which isn’t even a law yet and may never be a law in that state — but they’re both indicative of what’s happening across the country. So, let’s assess...

Officer Safety is Always Key
As a general rule — consult your agency P&Ps for your own specific guidelines — a civilian may record a police officer’s activity as long as they:

1.) remain at a reasonable distance, and
2.) don’t interfere with the officers’ duties or create a safety concern for the officer, person detained, or another onlooker

Meanwhile — and again, this is merely a general rule! — based on the totality of the facts surrounding the event, the officer should consider the arrest of the person for the appropriate section if the person:

1.) refuses to stay at a reasonable distance, or
2.) creates through their actions a reasonable safety concern

One of my many friends from San Jose (Calif.) Police Department is Ed Flosi, who is also a regular Police1 Contributor. Flosi told me today, “As long as a person is within their legal rights to video record the officer, my advice to the officer would be to act like the professional law enforcement officer that you are and not to worry about the person making the video. The key training issue is to understand what ‘reasonable’ means in this context. As with any other evaluation of reasonableness, it will depend of the totality of facts and circumstances known to the officer at the time of the event. The facts relied upon by the officer must be objective and measurable.”

Flosi added that the days of claiming, ‘It is an officer safety issue’ without documenting specific and articulatable facts as to why are over. He said further that in the past when video recording devices were not so prevalent, responding officers could more easily mitigate the very real concern that video capturing tactics might be posted to the internet. By setting up a big enough perimeter that the news outlets couldn’t get close, most of the officer safety and OPSEC issues were eliminated. Not anymore.

“This is the age of instant video and everybody with a cellular device is a potential news reporter in their own right,” Flosi said. “There is no way to absolutely restrict civilians from video recording an officer. If the non-involved person taking the video is in a lawful place and is not causing a safety concern for anyone involved, the officers should be more concerned with the task at hand rather than who is running video of the event. An officer who takes his or her attention away from the task at hand to worry about a person running video is going to suffer from split-attention deficit. When a person is forced to focus on more than one item, the amount of focus on either item suffers. In other words, they may miss something that the primary suspect(s) is doing that could get them hurt or killed.”

Lawful Arrest and/or Seizure of Video Devices
“I’ve heard several officers say that they would just confiscate the camera as evidence since the person has video recorded the officer taking action(s) surrounding a criminal act. This logic is not sound and I would recommend that officers speak to their appropriate attorney representative before making such a seizure of private property without a warrant,” cautioned Flosi.

For a plethora of legal and policy matters, I regularly turn to my friend and Police1 Contributor Terry Dwyer, who since his 2007 retirement from a 22-year-career with the New York State Police, has been an attorney in private practice representing law enforcement. In the brief legal analysis (see sidebar above and left), Dwyer writes that if an arrest is to be made of a citizen for videotaping officers in public, it should be related to an officer’s concerns other than a desire to prevent the taping.

“While no one wants to find themselves on YouTube or any other social media site,” Dwyer told me today, “the present-day reality is that there is increased public scrutiny of officers and an added avenue for bringing to light some objectionable officer behavior. This is not necessarily a bad thing because it has resulted in police departments being able to dismiss marginal officers for behavior that may have otherwise not been able to be substantiated but for a citizen’s recording. Arrests of citizens who videotape police in public would be justified if the citizen is otherwise interfering with the performance of the officer’s duty. An unheeded warning to move away from the scene if the videographer is too close or in an unsafe position could be grounds for an obstructing arrest.”

Dwyer said also that while arrests of citizens for videotaping police officers in public have been made under various eavesdropping statutes, the use of such statutes in this regard “has often been misplaced” so be wary of that. Police officers are public servants who perform very visible public functions. As one federal district court noted, “activities of the police... are subject to public scrutiny.”

Suffice it to say that after the event — whatever that event might be — if an officer determines that there’s a specific and articulatable need to have the video because it contains crucial evidence, the officer would be well advised to first ask the citizen to voluntarily surrender the recorded material. If obstruction, breach of the peace, disorderly conduct, or other criminal charges begin to come into play, so be it. Absent some clear violation of law unrelated to the act of videotaping cops' actions, officers are advised to carefully consider the legalities surrounding the decision to arrest.

For more on the legal elements of this matter, I strongly suggest you consult with your FOP, your department’s legal advisors, and your P&Ps. I also suggest you check out Dwyer’s column on this topic also appearing on Police1 in conjunction with the column you’re nearly finished reading.

Closing Comments
Let’s head back to Connecticut for a moment, because despite much evidence to the contrary, a certain number of thinking people actually do live there. Addressing the matter of the Looney Bill, State Senate Minority Leader John McKinney — a Republican from Fairfield — said in a report in the New Haven Independent, cops already have enough to worry about. “I don’t want that police officer to be thinking for a second, ‘wait a minute, I’ve got this new law I might be liable. Oh darn. What am I going to do?’” he said in the Independent. “I think that takes away from them doing their best job.”

Connecticut State Senator Kevin Witkos, who it should be noted is a police officer in the state, said in that newspaper article that while he agreed with the underlying concept of the legislation — if members of the public are lawfully present and not interfering with police, they should be allowed to photograph them — at present it is written too broadly. “For instance, when an officer is in the investigative stages of an incident and has not yet determined whether an area is a crime scene, it’s good not to be recorded, he said. Sometimes recording police can inflame already tense situations,” Witkos told the local paper.

“How appropriate: Martin Looney,” chuckled my friend Dan Marcou when we spoke today about this thing. Getting serious, Marcou continued, “During a year where officers are being ambushed and killed in the line of duty at an alarming rate, all we needed was some ‘Looney Toon’ with an axe to grind against law enforcement writing legislation to convince the ‘I-pay-your-wages crowd’ to run around a hot scene with cameras. All this will do is to divert, distract and endanger police officers even further. Hey Martin, police officers are not the problem — they are the solution!”

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