Ferguson shooting: When cameras focus on police, it's legal, courts say

In the tense aftermath of the shooting-death of Michael Brown in Ferguson, Mo., police began ordering local residents – and even the news media – to turn off their cameras.

Such an order is perhaps understandable given the desperate picture then confronting police.

A young man was dead, angry demonstrations escalated into looting, and police were resorting to rubber bullets and tear gas in what looked by midweek to be a losing effort to restore peace.

Police even took two reporters into custody after one used his cell phone to record a visibly nervous officer in combat gear ordering the journalists out of the local McDonald's restaurant, where they were recharging their cell phones.

Despite the police orders, cameras in Ferguson kept rolling.

That collective act of defiance sent an unmistakable message to the police and higher powers in Missouri – that the world was watching.

It also put every police department and law enforcement officer across the country on notice. In a nation saturated with smart phones equipped with full video capability, few acts of police misconduct will escape public scrutiny.

A few weeks ago, officers in New York City were involved in an altercation with Eric Garner of Staten Island. At one point, Mr. Garner was placed in an unauthorized chokehold. He died. The incident was recorded by a bystander. The recording sparked an outcry – and reforms.

Last week, the NYPD sent a memo to its officers that members of the public must be allowed to record police-public 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,” the newspaper said, quoting from the memo.

Not every police department in the US embraces this view, but most courts have.

The First Amendment protects a citizen’s right to observe and record events in public places – including newsworthy events involving the police in the public discharge of their duties, federal appeals courts have ruled.

It is not a right exclusive to the news media. The First Amendment protects all citizens against attempts by government to engage in censorship, whether they have media credentials or not, the courts have said.

The right comes with important caveats however. The recording must be made from a safe distance and done in a way that does not interfere with police operations.

The other potential complication revolves around the audio portion of any filmed incident. At least 10 states have eavesdropping laws that prohibit recording a private conversation without the consent of both parties to the conversation.

Other states have statutes that permit recording when only one member of the conversation consents. But even this could be legally problematic for a bystander recording an arrest that includes a conversation between the arrestee and the police officer.

Until 2012, Illinois had the toughest eavesdropping law in the country. It barred recording all or part of any conversation unless the person doing the recording obtained the consent of all parties to the conversation.

If a police officer was one of the parties, the offense was elevated to a Class 1 felony with a possible sentence of four to 15 years in prison.

The American Civil Liberties Union (ACLU) challenged that portion of the law, arguing that citizens have a right to record police officers in public, including what they say in public.

A federal appeals court agreed and issued an injunction in 2012 blocking the portion of the Illinois law that dealt with police officers. Then last March, the Illinois Supreme Court struck down the entire eavesdropping statute, ruling that it was overly broad because it could be applied to a range of recorded conversations never intended to be private, like a loud argument on the street or fans cheering at an athletic event.

The Obama administration strongly supports efforts to permit members of the public to use cell phones and cameras to record police interactions with the public.

“These rights, subject to narrowly defined restrictions, engender public confidence in our police departments, promote public access to information necessary to hold our governmental officers accountable, and ensure public and officer safety,” wrote Jonathan Smith of the Justice Department’s Civil Rights Division, in a 2012 memo.

The memo was written in response to a case in which Baltimore police officers seized, searched, and deleted the contents of a city resident’s cell phone after the man recorded the officers “forcibly arresting his friend.”

Mr. Smith said the Justice Department had argued in federal court “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.”

The ACLU is also a strong supporter of the idea of holding police accountable by recording their actions during public arrests. The ACLU’s website includes basic advice for would-be photographers who seek to keep an eye on police conduct.

Among key points:

• You have the right to photograph anything in plain view open to the public.

• Police may not confiscate or demand to view photos or video – unless they have a warrant.

• Police may never delete your photos or video.

• Police have the authority to order citizens to stop any activity that interferes with an ongoing operation.

The ACLU even offers suggestions about what to do if police confront you while recording an arrest or other operation.

“Always remain polite and never physically resist a police officer,” the website says.

“If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity,” the ACLU says.