By John V. Berry, Esq., www.berrylegal.com
With the significant number of high profile police cases in the media in 2015 law enforcement officers have found the need to be extra careful in every aspect of performing their public duties. In our practice of representing law enforcement officers, this concept should extend to a law enforcement officer's use of personal (non-Department) cellphones, tablets, etc.
Due to the development of technology, law enforcement officers have been subject to increasing public scrutiny. Often times, at any given traffic stop or other interaction with the public there are individuals with camera cellphones who record or otherwise attempt to capture footage of an officer performing his or her duties. The natural reaction to this type surveillance by the public is for an officer to want to keep their own photographic or video records. Our advice is to be careful in doing so for a number of reasons.
BE CAUTIOUS IN USING PERSONAL CELLPHONES
Taking photographs, video recordings or audio of events involving the public can cause a number of issues to arise for an officer. Four immediate issues come to mind when we evaluated the downsides to an officer using their own personal cellphone or tablet while on duty.
First, many departments ban the use of personal cellphones or tablet devices while on duty. Hence, the officer can get into trouble by using their personal device. We have defended officers that have received disciplinary actions for the use or possession of such devices while on duty. Thus, it is important to find out the department policy (to the extent one exists) on the use of personal cellphones or devices on duty.
Second, and equally important is the increase in litigation. As the number of major media events involving police officers have increased over the years, so have the number of lawsuits. One of the major issues that the courts are now seeing, once a lawsuit has been filed, are discovery requests which seek inspections of all of a police officer’s personal cellphones and/or data devices for information related to an incident. For instance, a plaintiffs' or criminal defense attorney might ask for copies of all photographs taken from an incident. It is likely that the courts will further open the door to requiring officers to produce such information in the years to come.
Third, depending on the jurisdiction (federal, state, county, local), taking audio, photographs or video of a private citizen may be restricted by law. There may be privacy laws which govern and restrict the ability to maintain or use such information. In addition, in some jurisdictions video or audio recordings taken by an officer while in the line of duty might be considered public records and have a requirement that they be turned over.
Fourth, no matter what the department rules or laws are that govern, it is very important that officers not post or otherwise disclose such information (video, recordings or other information) from an incident on the Internet. We have seen this type of issue give rise to law enforcement offices in the form of department discipline and it is likely to increase in the years to come. Lawsuits have already been filed by individuals photographed, videotaped or recorded by officers on various grounds, on privacy grounds. When these cases come to light the officer is inevitably charged administratively with discipline for doing so.
There have not been many reported court cases which have developed where the plaintiff, prosecutor or defendant seeks an officer’s private personal cellphone or tablet records, but they are certainly coming. The most on point case, thus far, occurred in New Mexico, in State v. Ortiz, 215 P.3d 8111 (NM Ct. App. 2009). In the Ortiz case, the defendant was charged with driving while intoxicated. The defendant’s attorney sought all records, including personal cellphone records from the officer involved in the arrest which may have aided in the defendant’s legal defense. The court in Ortiz held that the government was required to turn over the officer’s cellphone records.
Not many cases have followed Ortiz as of yet, but as I mentioned above they are coming. There is little doubt that evidence taken (e.g. photographs / video recordings of a crime scene) on an officer's personal cellphone will be likely required to be turned over in the future by the courts as the law in the area develops.
Law enforcement officers are cautioned to know department policy when using personal cellphones or tablets while on duty. Officers should also take care, even when authorized, to be aware that recordings (audio or video) may be later sought by a plaintiffs’ attorney or prosecutor. Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here Berry & Berry Facebook Page.