Matthew T. Mangino
GateHouse News Service
August 22, 2014
Ferguson, Missouri, has stumbled into the national spotlight for all the wrong reasons. From the tragic homicide of Michael Brown, an unarmed teenager, at the hands of the police, to the large-scale protests—peaceful and violent — to the para-military police response and the intervention of the National Guard, Ferguson has taken a hit.
Rolled into all of this have been some obvious, even outrageous, infringements on individual constitutional rights. Amid all the chaos, tear gas, rubber bullets, arrests and violence, the trampling of the First Amendment has been particularly egregious.
Last week, Washington Post reporter Wesley Lowery was arrested while covering the protests. He was told by police to stop recording video on his smartphone.
The editor of the Post, Marty Baron, complained that the order to stop filming was illegal. He was right. While state laws in most states do not address the legality of recording the police at work, courts across the country have ruled that the First Amendment protects videotaping or photographing police conduct during arrests, traffic stops and even protests.
In general, an individual can record an on-duty police officer when the individual is legally authorized to be present, the police activity is in plain view, and the recording is not being obtained through some surreptitious means.
But even in public spaces, police officers may legally order an individual in the act of taping to stop if the activity is interfering with legitimate law enforcement operations. The police may ask someone who is taping an incident to move to another spot. However, the police may not ask an individual to stop taping simply because they do not want to be taped.
When it comes to actual footage, police generally cannot confiscate or demand to view video taken of police conduct without a warrant. In addition, officers are never authorized to destroy film or delete video.
This year, the U.S. Supreme Court ruled that police must obtain a search warrant to inspect the contents of data on a cellphone including photographs and videotape. The courts have long allowed warrantless searches in connection with arrests, saying they are justified by the need to protect police officers and to prevent the destruction of evidence, reported the New York Times.
Chief Justice John Roberts did not buy either argument. Police may inspect a cellphone to protect themselves from potential harm from hidden weapons, “once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.”
In a recent memorandum, the New York City Police Department confirmed a citizen’s right to photograph or videotape an encounter with the police.
The memo affirmed that “Members of the public are legally allowed to record police interactions,” according to the New York Daily News. “Intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.”
In 2012, the U.S. Department of Justice distributed a memo supporting “that private individuals have a First Amendment right to record police officers in the public discharge of their duties, and that officers violate individuals’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process.”
However, the law is unsettled regarding police officers using wiretapping statutes in certain states to arrest and prosecute those who attempt to record police activities using video cameras that include audio.
In a number of states — Florida, Maryland, Massachusetts, New Jersey, Pennsylvania — there is no general right to record audio. Appellate courts have interpreted the wiretap laws as prohibiting audio recording if the parties have a reasonable expectation of privacy. The police working in a public space normally do not have an expectation of privacy.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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