By John V. Berry, Esq., www.berrylegal.com
Issues When Facing Recording Devices
We frequently represent law enforcement officers (LEOs) that have been accused of misconduct. As the old adage goes, an ounce of prevention is worth a pound of cure. In the case of law enforcement officers, it has never been more the case as it is today when it comes to public recording of police officer interactions with the public. A traffic stop or other minor arrest can be recorded by suspects, citizens, bystanders and others and placed on the Internet for all to see. It is quite often the case where such video is taken out of context and displayed without the full recording. We have seen this type of issue arise time and again in the past 5-7 years with more regularity. Before 2010, these issues rarely tended to come up. However, with the improvement of smartphone and other recording technology the issue of law enforcement recording has gotten to the point where all law enforcement officers should be trained to assume that they are always being recorded in their interactions with the public and to act accordingly.
Existing Court Law
In recent years, many federal lower courts have typically held that the First Amendment protects the right to videorecord and photograph police officers. A relatively recent decision held a bit differently. In Fields v. City of Philadelphia, 166 F. Supp. 3d 528 (E.D. Pa. 2016), the U.S. District court seemed to somewhat narrowed this right. The court in Fields held that there was no constitutional right to videorecord police when the act of recording does not accompany a “challenge or criticism” of the police conduct. The lower court in Fields was recently reversed by the U.S. Court of Appeals for the Third Circuit in Fields v. City of Philadelphia, 862 F.3d 353 (3rd Cir. 2017), which held that citizens have a general First Amendment right to film police officers. The Fields appeals court decision stated that:
"We do not say that all recording is protected or desirable. The right to record police is not absolute. '[I]t is subject to reasonable time, place, and manner restrictions.' But in public places these restrictions are restrained. We need not, however, address at length the limits of this constitutional right. Defendants offer nothing to justify their actions. Fields took a photograph across the street from where the police were breaking up a party. Geraci moved to a vantage point where she could record a protestor's arrest, but did so without getting in the officers' way. If a person's recording interferes with police activity, that activity might not be protected. For instance, recording a police conversation with a confidential informant may interfere with an investigation and put a life at stake. But here there are no countervailing concerns."
In sum, for now, it appears that the courts have almost all taken the view that citizens may actively film law enforcement officers performing their duties, unless some exception applies (i.e. substantial interference, officer safety). That said, we have included some tips in dealing with such recordings for law enforcement officers to be aware of.
Tips for LEOs in the Age of Video Recording
- During traffic stops or other arrests, it is important for a LEO to always assume that somebody is recording you. If a LEO consciously thinks about the potential for being recorded before each stop, they can consciously take steps to avoid being recorded in a bad light. One of these steps is to always maintain composure and act courteous and polite.
- Avoid getting into debates about whether or not a citizen can record a LEO's actions. These are usually counterproductive and make the officer look worse later. Additionally, the recording could be deemed to be permissible freedom of speech/freedom to film issues.
- Where the officer is aware that he or she is being recorded and the citizen is being difficult or abusive it is important for the officer to attempt to look very calm and announce any commands clearly and politely. The officer should do his or her best to explain to the individual what is happening and why it is happening. This can help later when the individual files an administrative complaint.
- Officer safety is paramount. Just because an individual has the right to film, officer safety issues can arise which could require the officer to take action. Multiple courts have ruled in favor of police officers taking necessary, reasonable steps to keep themselves and others safe in the lawful performance of duty.
- Review and understand all department specific policies on citizen recording. Knowing the policies that control the actions of a LEO during a recording incident can be important to avoid future disciplinary action.
It is important for a law enforcement officer to understand the legal and department issues that they face when it comes to public recording of police interactions. Please keep in mind that each type of situation involving citizens that record police officer interactions is different and depending on department, will vary. 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.