One of the consistent problems with the policing of the Occupy movement has been the way that forces deal with being filmed. Not that Occupy is unique—the spread of affordable, good-quality cameraphones is a fundamental change in the dynamic of police-civillian relations. The “he said/she said” model of complaints against the police, where prosecutors and juries tend to trust the uniform more than the blue jeans (or hoodie), falls down when there’s video evidence. It’s been falling down for twenty years.
People hate being caught out. And groups with strong esprit de corps and a deep feeling of separation from the common community are always at risk of putting defense of group members over justice to outsiders. The natural, inevitable reaction in this case has been a police culture of intimidation, confiscation and deletion against citizen journalists.
The ACLU, unsurprisingly, has been on the case. On May 3 they, along with the EFF and a number of similar groups, wrote a letter (pdf) to US Attorney General Eric Holder, calling for federal intervention.
The First Amendment has come under assault on the streets of America. Since the Occupy Wall Street movement began, police have arrested dozens of journalists and activists simply for attempting to document political protests in public spaces. While individual cases may not fall under the Justice Department’s jurisdiction, the undersigned groups see this suppression of speech as a national problem that deserves your full attention.
And the DoJ has already been doing so, even before the ACLU’s letter. In January, they sent a Statement of Interest to the judge in a civil case in Baltimore, where police had deleted a bystander’s video of an arrest. The Statement of Interest essentially instructed the judge to find that the bystander had a constitutional right to film the arrest.
The right to record police officers while performing duties in a public place as well as the right to be protected 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 governmental officers, and instill public confidence in the police officers who serve us daily.
The Baltimore Police Department revised their General Order J-16, which covers the topic. But the DoJ, not satisfied, sent a letter, which is both a critique of the rewrite and a broad statement of the federal government’s position on the matter. It’s sweet reading for those of us who have felt for some time like the walls are closing in.
Because recording police officers in the public discharge of their duties is protected by the First Amendment, policies should prohibit interference with recording of police activities except in narrowly circumscribed situations. More particularly, policies should instruct officers that, except under limited circumstances, officers must not search or seize a camera or recording device without a warrant. In addition, policies should prohibit more subtle actions that may nonetheless infringe upon individuals’ First Amendment rights. Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices.
Policies should prohibit officers from destroying recording devices or cameras and deleting recordings or photographs under any circumstances. In addition to violating the First Amendment, police officers violate the core requirements of the Fourteenth Amendment procedural due process clause when they irrevocably deprived individuals of their recordings without first providing notice and an opportunity to object.
Nice, huh? How about this:
…an individual’s recording of police activity from a safe distance without any attendant action intended to obstruct the activity or threaten the safety of others does not amount to interference. Nor does an individual’s conduct amount to interference if he or she expresses criticism of the police or the police activity being observed.
The Supreme Court has established that “the press does not have a monopoly on either the First Amendment or the ability to enlighten….. Indeed, numerous courts have held that a private individual’s right to record is coextensive with that of the press. A private individual does not need “press credentials” to record police officers engaged in the public discharge of their duties.
There’s plenty more, too. I’d recommend reading the whole thing.
I find this emphasis on the right of citizens to supervise law enforcement a little surprising, considering some of the other things we get out of Washington these days. But, as Patrick would say, that’s how politics works: inconsistently, messily, gradually and surprisingly. So it gives me cause to hope.
(I’ve already Parheliated some coverage of this. But I thought it warranted pulling onto the front page.)