Filming the police (at a safe distance) is not a crime

posted at 1:01 pm on January 2, 2016 by Jazz Shaw

In some parts of the country this seems to be a settled question but it’s still cropping up in a disturbing number of places. We’re seeing incidents where court cases are popping up over instances where private citizens out on public property wind up in court with the cops after filming the activities of police on the streets. This can go one of two ways: the citizen is in trouble for doing the filming and faces charges or the cops are on the stand because of how they reacted to the filming. Neither should be showing up on the docket, but they still are, such as this case in New York from Christmas Eve. (Yahoo News)

Charges against a police officer accused of arresting a man for filming him with a cellphone camera have drawn fresh attention to a decades-old issue: citizens’ rights to record police.

Officer Jonathan Munoz pleaded not guilty Tuesday to official misconduct charges in the March 2014 arrest of 21-year-old Jason Disisto.

Even before Munoz’s arrest, Disisto contended in a lawsuit filed in Manhattan federal court that New York Police Department officers intimidate or arrest people recording police activity. He cited instances since 2005 when people, including journalists, were arrested after recording police with cameras or phones.

Police spokeswoman Sophia Mason says NYPD employees are reminded not to interfere with people recording police activity.

This is a case where the officer got into trouble for overreacting and using his badge against someone who was, by all descriptions, filming an arrest from an appropriate distance. The protestations by the police union here are understandable but misguided as I see it. I should preface this by noting that I’m about as “pro-cop” as they come and anyone who has been reading this space for a while will tell you the same. But the excuses being invoked by the union in response to these allegations really just make the cops wind up looking worse.

There are times when bystanders can most definitely cause a problem through their desire to record police activity and everyone needs to be educated about such situations on both sides of the debate. If you are grabbing your cell phone and dashing up in the middle of an arrest or confrontation where weapons are drawn or tensions are escalating you’re only asking to either get yourself injured or hinder the cops from preventing someone else from getting hurt. You need to keep a reasonably safe distance away.

The other objections about people using videos to torment or harass officers are understandable but I’m afraid that’s the way of the world in the 21st century. It’s true that both activists and their supporters in the media will show edited versions of videos and they generally only show the cop’s response without the minutes leading up to it, which is grossly biased reporting. But at the same time, the sooner we have body cameras and dash cams for all the cops, the sooner we can get that full context out in response to accusations if the cops are doing nothing wrong. (Which is the case in the vast, vast majority of instances.) Everyone has cameras these days and clips show up on social media (followed by the mainstream media) like lightning. There’s just no away around it.

Some municipalities have overreacted in the opposite direction and actually tried passing laws to punish people who record the activities of the police in public. That was the case in Illinois one year ago when they passed their new eavesdropping law. (HuffPo)

Even though the Illinois Supreme Court struck down the state’s overbroad eavesdropping law, which had led to multiple citizens being arrested and charged with felonies for filming police officers without their consent, earlier this year, on Dec. 4 the Illinois Legislature introduced a new bill that would have nearly the same effect.

Senate Bill 1342 would criminalize any “oral communication between 2 or more persons” that was surreptitiously recorded where one party, including police, had a “reasonable expectation of privacy.” The Illinois Supreme Court ruled that police in performance of their duties in “public,” do not have an expectation of privacy, but did not define “public.”

That whole “public vs private” question is at the heart of it. The majority of police confrontations seem to take place on the streets or on private property in full view of the public roads and walkways. There really is no expectation of “privacy” for anyone under those conditions and even less so for police who are ostensibly doing the business of the public and being paid on their dime. Now, if the pursuit of a criminal takes the cops inside a residence or other private structure which doesn’t belong to you, then you have no business following them in there and I’ll have little sympathy for you if you wind up turning into collateral damage. But out on the public roads? They belong to all of us.

Since activists claim they want more transparency in police/community relations, this is one way to get it. And as long as the cops aren’t acting totally out of bounds they’re going to win these cases nearly every time. Trying to ban people from filming the public activities of law enforcement officials is simply the wrong way to go and will only lead to further mistrust, providing fuel to the media when they want to bash the police.

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Podcast with Mickey Osterreicher, general counsel for the National Press Photographers Association (NPPA) discussing this issue.

Additional discussion pages on this topic from one of the most engaged industry group: NPPA Advocacy pages

Skip2014 on January 2, 2016 at 3:13 PM

To only drive it a couple of times a year… I could never do that.

oscarwilde on January 2, 2016 at 3:09 PM

I have two garage queens here and I noticed that both are leaking a tad of oil due to dried up main seals. Hope the seals are not cracked.

Was going to give them to the kids and no one wants the old things that are too loud. Well, the son that lives here likes ’em and has his own.

HonestLib on January 2, 2016 at 3:13 PM

Porsche’s which I love.
oh well, i cant afford either.lol

bazil9 on January 2, 2016 at 3:09 PM

Had a Porsche once, yea, they are a pain to keep running. Fun to drive though, almost worth the effort to keep up…. ALMOST

oscarwilde on January 2, 2016 at 3:14 PM

Go ahead, ignore me Oscar.

Walter L. Newton on January 2, 2016 at 3:12 PM

Not ignoring you, Walter… Just your car…

oscarwilde on January 2, 2016 at 3:15 PM

listen smarty pants,,i Did spell it Stingray and but auto corrct took control.

bazil9 on January 2, 2016 at 3:13 PM

You told me I am not your type….so leave my pants out of it!

It has been spelled both ways.

HonestLib on January 2, 2016 at 3:16 PM

Podcast with Mickey Osterreicher, general counsel for the National Press Photographers Association (NPPA) discussing this issue.

Additional discussion pages on this topic from one of the most engaged industry group: NPPA Advocacy pages

Skip2014 on January 2, 2016 at 3:13 PM

I’ve already seen their articles. I can count about 12 since 2001. Blink made it sound like it was an epidemic. And most of the cases had extenuating circumstances. No cut and dried.

I knew the answer to my question to Blink before I asked it. I do the same thing in interviews, rarely ask a question that I don’t already have an answer.

Blink is just being stupid.

There is no war on reporters.

I’ve never been arrested. And I’m both a photo journalist and reporter. And yes, I’ve been at hard news scenes.

Walter L. Newton on January 2, 2016 at 3:17 PM

Smoke check. Reporting person says she heard an explosion and then smoke in the air. Ha… another one of our hash extraction labs probably blew.

No in my county, I’ll stay here and monitor. Not running out, editor wouldn’t use story anyway.

Walter L. Newton on January 2, 2016 at 3:19 PM

Porsche’s which I love.
oh well, i cant afford either.lol

bazil9 on January 2, 2016 at 3:09 PM

P-cars taught me about drop throttle over-steer. When the 911SC came out, 1978 if I remember correctly, I learned to like them.

Most folks frowned, but I also like my 944S.

HonestLib on January 2, 2016 at 3:19 PM

Most folks frowned, but I also like my 944S.

HonestLib on January 2, 2016 at 3:19 PM

My 928 was wicked… Just a lot of electrical and cooling problems.

oscarwilde on January 2, 2016 at 3:23 PM

I didn’t post the links to make a point, only to provide some info for non-industry posters. Js and PJ have been arrested covering stories. How many? Not a lot given the number of media out their, but still it does happen. A press pass only means something if whoever scrutinizes it respects the individual or the organization.

Skip2014 on January 2, 2016 at 3:24 PM

HonestLib on January 2, 2016 at 3:19 PM

Hey. Wanna talk about my playing car collection? Roman, Greek and Jewish ancient coins? Pickles?

Walter L. Newton on January 2, 2016 at 3:26 PM

I didn’t post the links to make a point, only to provide some info for non-industry posters. Js and PJ have been arrested covering stories. How many? Not a lot given the number of media out their, but still it does happen. A press pass only means something if whoever scrutinizes it respects the individual or the organization.

Skip2014 on January 2, 2016 at 3:24 PM

Yes. Thanks for posting that info.

Maybe Blink will get the message, it’s not dozens and dozens.

And the same thing with citizens, it’s not that common for a citizen to get arrested for filming, unless they have actually breached a respectful boundary.

My advice, this is what telephoto lenses are for.

Walter L. Newton on January 2, 2016 at 3:28 PM

Pickles?

Walter L. Newton on January 2, 2016 at 3:26 PM

You know nothing about pickles you piker… <— Insert evil maniacal laughter here…

oscarwilde on January 2, 2016 at 3:31 PM

My advice, this is what telephoto lenses are for.

Walter L. Newton on January 2, 2016 at 3:28 PM

And shotgun mics… ;)

Skip2014 on January 2, 2016 at 3:36 PM

Hey. Wanna talk about my playing car collection? Roman, Greek and Jewish ancient coins? Pickles?

Walter L. Newton on January 2, 2016 at 3:26 PM

Things I collect…cars, boats, guns, US coins, guitars, vintage sport watches, alimony and child support payments.

Outside of that I ain’t got nutten.

HonestLib on January 2, 2016 at 3:44 PM

Not ignoring you, Walter… Just your car…

oscarwilde on January 2, 2016 at 3:15 PM

lmao..a Geo is pretty bad. ;)

bazil9 on January 2, 2016 at 3:59 PM

Our house was broken into back in ’07 or ’08, and several valuables were stolen. We called the police. They were very professional and polite as well. None of our property was harmed. None of our family members were shot. None of our animals were killed.

They never found our stuff, either, but there wasn’t much to go on.

The point is, I know there are some police officers who behave badly, but there are an awful lot of good ones, too.

Cheshire_Kat on January 2, 2016 at 5:32 PM

That doesn’t mean a citizen doesn’t have the right to film or take photographs of LE and others at the scene, but they don’t have the right to invade the privacy of other citizens that may be at the scene, or part of the incident.

Walter L. Newton on January 2, 2016 at 2:52 PM

There is no right to not be photographed when you’re in a public place. Reporters ought to know this. However, I never said anything about other people, which is not the same as ignoring their situations. I said, specifically, that police officers shouldn’t have any expectation of privacy in any place when they’re performing their duties because they’re, right then and there, acting as public officials.

James on January 2, 2016 at 6:35 PM

There is no right to not be photographed when you’re in a public place. Reporters ought to know this. However, I never said anything about other people, which is not the same as ignoring their situations. I said, specifically, that police officers shouldn’t have any expectation of privacy in any place when they’re performing their duties because they’re, right then and there, acting as public officials.

James on January 2, 2016 at 6:35 PM

Paparazzi think this too.

unclesmrgol on January 2, 2016 at 8:56 PM

We too soon forget that our “Peace Officers” are supposed to enforce the LAWS, but ALSO “Keep the Peace” (unwritten laws = MANNERS)!

Sorry, nobody, no group, and no race is perfect. Our laws aren’t either – but they’re what we’ve got.

9 of 10 times, I’m going to back the “PEACE OFFICER!

FloridaBill on January 2, 2016 at 9:56 PM

MOST fatal encounters, involving “Peace Officers”, could be COMPLETELY AVOIDED, if only the ‘victim’ complied with LAWFUL INSTRUCTION and showed even a modicum of respect, if not for the officer – Then for the badge.

NO SYMPATHY FROM ME FOR MR. VICTIM MCHOLEY…

FloridaBill on January 2, 2016 at 10:05 PM

FloridaBill on January 2, 2016 at 10:05 PM

Not everything that comes out of a cops mouth is lawful instruction, moron, and no law says you have to respect the badge.

Cowards are a dime a dozen. Enjoy your chains.

rightwingyahooo on January 2, 2016 at 11:21 PM

The far right….. They are anti cop when it suits them and pro cop only when unarmed black kids get shot to death.

farleftprogressive on January 2, 2016 at 2:44 PM

This is nothing but pure trolling.

Why is this not a bannable offense, but good commenters like davidk lose their names for one word, heat of the moment remarks?

njrob on January 3, 2016 at 12:33 AM

The police officers who currently object to filming will simply mute their body cameras in some way to make the video inadmissible evidence. Plus the body camera is directly filming the suspect and only indirectly filming the police officer.

Most of the time there are no consequences for the police officer or only a slap on the wrist. Perhaps the Federal Government needs to step in and charge the police officers with civil rights violations and Federal judges need to hand down lengthy jail sentences.

edrebber on January 3, 2016 at 12:40 AM

Paparazzi think this too.

unclesmrgol on January 2, 2016 at 8:56 PM

And they’re right to think it. When paparazzi get in trouble is when they attempt to do their work on people in private areas, such as homes, hotel room balconies, bathrooms, etc. in the pursuit of exposing what would be reasonably considered to be private moments. Any images they record of individuals in public are completely fair game.

I don’t particularly like it…I would prefer that half the ownership of an image’s rights should go to the image’s subject and fair use should have to be negotiated between the subject and the ‘artist,’ but the law is what the law is.

James on January 3, 2016 at 12:54 AM

I guess when you’re a cop, you are on video 24/7

Dollayo on January 3, 2016 at 4:26 AM

That’s why…

1) All of the 88 deputies and support staff with a badge know me.
2) That’s why I carry a press pass
3) That’s why I have a telephoto lens
4) That’s why I arrive on a scene as quick as I can and that’s why I stay on a scene, even after the initial incident is over.

Maybe it would be a good idea if citizens read up on how media approaches being on a crime scene. It would help, only in the fact that there are ways that LE is used to media finding that common ground at a crime scene.

Media will intrude, but they are good at it and most use good senses on a scene. Common citizen doesn’t have the training or knowledge.

But a citizen, if they are not disrupting a scene, have all the rights in the world to film or take pictures.

Walter L. Newton on January 2, 2016 at 1:23 PM

Wasn’t it the “Journolists” that a few years back was pushing Congress to give them special rights that the average citizen would not have. I seem to recall something about licensing, free speech restrictions, something like that. But anyways….

Before going on I do want to point out that a press pass in New York means absolutely nothing legally. A “Journolist”,or anyone with a “press pass” has no more rights than the average citizen. Waving around may make you feel special, and some police MAY give it deference at their discretion, but legally you’re just as much a peasant as everyone else.

I did notice that you, and many others, have repeatedly kept silent about the several judgments against NYPD that at a minimum required a training change to inform officers of a citizen’s right to record them in public. Time and again NYPD has ignored it.

It’s gotten bad enough that Upstate cities think their above NY State law. Both Rochester and Syracuse had to issue apologies to people arrested by their police departments for filming officers. Rochester has the added distinction of harassing the original photographer after the apology AND GETTING CAUGHT ON TAPE AGAIN.

So don’t sit there with your righteous indignation about how us lowly peasants should mind themselves, keep their place, and let the “professionals” handle it. There are enough documented cases in New York alone showing the police break the law when it comes to public recordings. Your guide is unnecessary if the police would actually follow the law that has been on the books for decades and the multiple judgments against them in the decades following.

Those more interested in seeing just how much the police abuse their power when it comes to people filming them may want to check out Photography is Not a Crime. I don’t like the format of the site but it does do a good job of documenting the police abusing photographers.

tphillip on January 3, 2016 at 9:16 AM

James on January 3, 2016 at 12:54 AM

I agree. If you are at your backyard pool and the neighbor on the balcony next door starts taking pictures of you, well — too bad for you. It’s no different from the guy with the long telephoto taking pictures of you from an aircraft overhead or a hill nearby; live with it.

If you are in your car and pulling out of your driveway and a guy with a camera blocks your way for that perfect shot, well — too bad for you.

If you’ve ever seen the videos of the shooting of Oscar Grant, there were at least two guys with video cameras who charged within the ring of police. I agree with you — these guys have every right in a public place to record what’s happening, and the police have no right to keep them out. That they and the other observers pressing close around the police during Grant’s arrest may have contributed to his death is immaterial — too bad for Oscar Grant.

If a guy with a cellphone camera gets too close to the police after they’ve ordered the street cleared that he and his group have blocked — well, the police ought to suck it up rather than pepper spraying the dude to drive him off.

Freedom of assembly and all that.

unclesmrgol on January 3, 2016 at 11:51 AM

And let’s not even go into the use of drones. Or the British custom of installing police cameras everywhere. After all, if you as a private citizen have the right to do these things, then the People as a whole have the right to do it too.

unclesmrgol on January 3, 2016 at 11:54 AM

The far right….. They are anti cop when it suits them and pro cop only when unarmed black kids get shot to death.

farleftprogressive on January 2, 2016 at 2:44 PM

The left… They are for the murdering of 30% of all black children every year and #blacklivesmatter only when black criminals get shot to death.

unclesmrgol on January 3, 2016 at 12:00 PM

Not everything that comes out of a cops mouth is lawful instruction, moron, and no law says you have to respect the badge.

Cowards are a dime a dozen. Enjoy your chains.

rightwingyahooo on January 2, 2016 at 11:21 PM

Hold that thought for the next time you are pulled over by the police.

https://www.youtube.com/watch?v=_ZmmVgS_Ba4

unclesmrgol on January 3, 2016 at 12:05 PM

I guess when you’re a cop, you are on video 24/7
.
Dollayo on January 3, 2016 at 4:26 AM

.
I would draw the line at my bathroom and bedroom doors, but other than that I believe could handle it.

I would also want to have a say in who does and does NOT get to view/review the video.

listens2glenn on January 3, 2016 at 1:08 PM

Egad, it’s the 3rd day of 2016 and the anti-cop jerks are out already – as are the folks who don’t seem to grasp the proper (vice the actual) position of police in our society.

As to the thread, specifically: police have zero expectation of privacy while performing their duties, on or off private property. Period. Citizens who own the private property do have an expectation of privacy, however.
As to the deceased or injured, there may very well be a right to observe/film them when on public property, but there is a moral (not legal) limitation on that right which should be respected and exercised. One word we used to use for those who didn’t was “ghoul”, and they were publicly ostracized.

Good post, Jazz. But…

Trying to ban people from filming the public activities of law enforcement officials is simply the wrong way to go and will only lead to further mistrust, providing fuel to the media when they want to bash the police.

The other thing it does is entrench further the idea that police are some sort of special class of citizen, different from “civilians”, who are “the only thing separating us from anarchy.” It’s one of the biggest problems in our Republic right now: the idea that special classes of people should be allowed to rule us because they’re smarter or better than the rest of us.

GWB on January 3, 2016 at 4:12 PM

Silly question on expectation of privacy in public places. I know a lot of press keeps kids names out of the reports. If you are an amature photo hound and it turns out that body you snapped or that alleged killer you filmed being taken in is a minor, have you actually broken any laws?

The_Livewire on January 3, 2016 at 10:24 PM

The police are the hammer wielded by a state that increasingly sees it as its duty to implement, and violently enforce, laws that bear little or no relation to a free society…

xNavigator on January 2, 2016 at 1:07 PM

I won’t disagree with you, but that is the fault of the legislators and executives, not the fault of the police. The problem you are describing is destructive of civilized order, true. But it is equally destructive of civilized order for police to get to choose which laws they enforce.

Or if you like, hammers don’t kill people, people kill people. The problem lies with the person wielding the hammer, not the hammer itself.

Tell me again why you carry a press pass? Do you think that it ever gives you a right that a citizen without a press pass has?

blink on January 2, 2016 at 1:31 PM

My guess would be that it tells the officers involved to expect the person holding it to be at least passingly familiar with the relevant laws and probably familiar with routines to do his job without getting in the way of the officers doing their jobs. No, it doesn’t give you special rights. If anything it gives the officers “special rights,” in that they now have a reasonable expectation to assume that the person with the press pass knows how it’s supposed to be done.

Of course, if he shows that he doesn’t know how to work a scene, he could get arrested or possibly killed. That’s on him for not learning the skills his press pass suggests that he has.

No, you weren’t, liar. You were warning people to leave this up to the professionals.

blink on January 2, 2016 at 1:44 PM

Was he? So far as I can tell, he was saying leave it up to the professionals or learn some professionalism in the context of what you are doing.

The two are not the same.

Every government employee should be filmed every minute on the job. Not just police.

ConstantineXI on January 2, 2016 at 1:54 PM

This. The taxpayers who foot the bill for his paycheck have a right to check up on his work.

I likewise have friends who are both local and federal law enforcement, the difference is, that I know that in their official capacity, they are not my friends. They are law enforcement officers. We drink together, we go to the shooting range together, they even shell out their hard earned cash to see me play. But not one of them would allow our personal friendship to prevent them from arresting me if they thought I had broken some law. Not one single inch of leeway or consideration.

oscarwilde on January 2, 2016 at 1:59 PM

Nor should they. I have a friend who is a cop that I have known since… 1983, I think. (I have other friends who are cops, but none with that long of a history.) And I have told him in no uncertain terms that if he ever lets our friendship affect the performance of his job, he will lose my respect at that moment.

The cops never come to help, they come to beat and kill and confiscate.

rightwingyahooo on January 2, 2016 at 2:08 PM

Hmm, that’s odd. I haven’t called the police often, but when I have they have been very professional, very helpful and very respectful.

Apparently the cops I have interacted with aren’t doing their jobs, huh?

Telephoto lenses don’t capture audio, Idiot.

blink on January 2, 2016 at 8:39 PM

Shotgun mics do.

Not everything that comes out of a cops mouth is lawful instruction…

rightwingyahooo on January 2, 2016 at 11:21 PM

Sure. It’s just like the military, where you have an obligation to obey lawful orders, and likewise have an obligation to refuse unlawful ones. And your point is?

Most of the time there are no consequences for the police officer or only a slap on the wrist.

edrebber on January 3, 2016 at 12:40 AM

And that’s the real problem. Cops reflect the values of their chain of command, most particularly the legislators and executives who decide what laws they have to enforce. In other words, the “problems” with cops are less likely to be problems than symptoms of a problem farther up the chain.

GrumpyOldFart on January 4, 2016 at 10:33 AM

Which means that they’ve been conditioned to go-along-to-get-along.

blink on January 4, 2016 at 11:57 AM

Sounds to me like you’ve been conditioned to think the concept of the presumption of innocence in the absence of other evidence should only apply to those the cops interact with, never to the cops themselves.

GrumpyOldFart on January 4, 2016 at 12:56 PM

njrob on January 3, 2016 at 12:33 AM

The nazi censor.

earlgrey on January 4, 2016 at 1:19 PM

Telephoto lenses don’t capture audio, Idiot.

blink on January 2, 2016 at 8:39 PM

But shotgun microphones do, idiot.

Solaratov on January 4, 2016 at 4:07 PM

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