Compliance At Swordpoint Is Still Compliance

Wednesday, July 25th, 2012

Via ArsTechnica, I see that DC Police Chief Cathy Lanier has issued a broad, lawful, Constitution-friendly, photography-protective policy instructing the officers under her command that they are not to interfere with folks taking pictures, including pictures of officers, and specifically including pictures of officers arresting people.

“A bystander has the same right to take photographs or make recordings as a member of the media,” Chief Lanier writes. The First Amendment protects the right to record the activities of police officers, not only in public places such as parks and sidewalks, but also in “an individual’s home or business, common areas of public and private facilities and buildings, and any other public or private facility at which the individual has a legal right to be present.”

Lanier says that if an officer sees an individual recording his or her actions, the officer may not use that as a basis to ask the citizen for ID, demand an explanation for the recording, deliberately obstruct the camera, or arrest the citizen. And she stresses that under no circumstances should the citizen be asked to stop recording.

The story goes on to say that the policy explicitly reaffirms the right to criticize police, says that officer concerns that photographers are “obstructing” police business are to be handled narrowly by asking the photographer to move, and specifically states that police are not to delete photos or video under any circumstances.

O frabjous day! Callooh! Callay! The police are starting to understand! Good things are going to start happening to us now! Law enforcement has had an epiphany about the rights of citizens and about the proper limitations on police power!

Update: The order was part of a settlement with Jerome Vorus, who sued the city after he was told to stop taking pictures of a traffic stop in Georgetown two years ago. The lawsuit was filed with the help of the American Civil Liberties Union.

Oh.

Well, compliance is compliance, I guess. As any police officer will tell you, it can’t always be voluntary.

–Ken White

[Hat tip to Popehat Commenter Jonathan]

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19 Responses to “Compliance At Swordpoint Is Still Compliance”

  1. #1 |  SJE | 

    Its GOOD that it was part of a court settlement. Now, if the city violates that policy, it is contempt of court.

    If it derived from the Mayor as just a policy, it could be “adjusted” at any time, and its enforcement would be optional. A court settlement is not optional.

    It will be interesting to see how this pans out. I guess that we will find that citizens with cameras do not compromise the safey of police officers, but do uncover corruption.

  2. #2 |  Dave Krueger | 

    I think cops are generally told they aren’t supposed to beat the shit out of people, but they still do it and still don’t usually suffer any personal consequences. Of course, one can hope that the cop on the beat will be inclined to follow the dictates of his chief even if he is clueless about the actual laws he’s supposed to be enforcing.

  3. #3 |  FritzMuffknuckle | 

    D.C. has now shifted liability from the Police Department to the individual officers. They won’t be able to plead ignorance of the law and get qualified immunity next time they are caught harassing a photographer, which means the cops themselves can be sued.

    This doesn’t mean cops will pay any future settlements, police unions may start picking up the tab. In any case, settlements for harrassing photographers will no longer be paid directly from tax dollars, a step in the right direction.

    On another note, [the 6 page order](http://www.pixiq.com/sites/default/files/mpd_go_304_19_vorus.pdf)[PDF] issued to every officer is awesome. It’s clearly written by the ACLU describing precisely what Constitutional law defines as our rights in very black and white detail. Though this may be targeted at DC cops, it looks like this is covered under federal law and should be applicable throughout the US. But what do I know, IANAL.

  4. #4 |  Dante | 

    This should help, as long as the DC cops don’t start doing what the cops in Maryland did – tell photographers to “stop loitering” and threaten them with arrest if they stuck around to take pictures. Cops always find a way around the law they swore an oath on the Bible to uphold.

  5. #5 |  Burgers Allday | 

    As longtime readers of the comments know, I tend to be contrarian.

    I am going to get a bit contrarian on Mr. White here.

    I think police are generally more understanding of the right to citizen recording than I would have expected them to be, say, 5 years ago. This is obviously a generalization, and there are many exceptions, even many out outrageous exceptions. However, at least on cop boards, a surprising number of policemen are surprisingly amenable to recording by regcits. I see it as a credit where credit is due thing.

    I would also say that even the policewomn in this case is exhibiting a surprising degree of empathy for those who record police. What I mean is this: every section 1983 and/or Bivens plaintiff wants police to basically publicly admit they were wrong and that they will do better in the future. This is a a big reason that section 1983 cases are so interesting — they are civil suits that aren’t always about the money (even though the remedies are sadly, and wrongly IMO, pretty much limited to money damages). All these plaintiffs in their mny and various circumstances desire what Plaintiff Vorus (assuming he filed suit) wanted. Still, they never get what Plaintiff Vorus got. Not the unjustified tasering victims, the unjustified DUI arrests, the unjustified search warrant victims, the beaten prisoners and so on and so on.

    To me it is not a coincidence that Vorus hit the proverbial “jackpot” (with jackpot NOT meaning money here). To me, this is part and parcel of the fact that police are generally surprisingly amenable to being recorded. So much so that they violated the cardinal unwritten rule of never-explain-never-apologize.

    BTW, it is not just police — courts and prosecutors also seem to be doing a good job on recording-the-police cases generally. I mean, it would have been nice if the law on recording the police were perfect and fully formed back in 2005, but, as these things go, the law is coming along briskly and in a generally good way.

    I wonder if Emily Good has sued. Anybody know?

    The fact that police are being somewhat understanding is also having palpable benefit here. What I mean by that is that the really tricky (but important) legal issue is the exigent circumstances seizure of cameras. This statement out of DC is all over that issue and actually suggests a pretty good resolution, to wit, a supervisor needs to come out if the policeman wants to do an “exigent circumstances” seizure. Don’t get me wrong — I think exigent circumstances seizures of cameras should be strictly limited to situations where: (i) the cameraperson refuses to identify (thereby making a later subpoena impossible); or (ii) the cameraperson expresses an intent to destroy the footage. Also, exigent circumstance seizures should never be allowed when there is reasonable suspicion that the police themselves have used excessive force, performed a false arrest, etc. NEVERTHELESS, requiring a supervisor to come to the scene do the exigent circumstances seizure, as DC is apparently requiring, would provide some measure of integrity to this dicey process. I guess now the question becomes: how long can they detain you while waiting for the supervisor?

  6. #6 |  Helmut O' Hooligan | 

    Dave,
    I agree wholeheartedly. Any respectable P.D. has a nice sounding mission statement (like private bureaucracies) and firm sounding policies against brutality, corruption and various forms of official misconduct. But out in the street, too many officers sneer at these feel good notions. There is an old saying that suggests that there is more justice in the end of a policeman’s stick than in all of the courts in the country. And this old idea persists to this day. Those who believe it are emboldened by the shocking lack of accountability in the average police department. They are protected by their departments and the courts. And they are often shielded from those in the community that would take it upon themselves to expose police abuses. Unfortunately, we live in a top down society in which our “betters” (police and politicians, bosses and landlords, the wealthy and the connected) often live by their own rules.

  7. #7 |  derfel cadarn | 

    Using the infinite wisdom of the government. To the Police if you are NOT doing anything wrong then you have nothing to be worried about.

  8. #8 |  Michael Chaney | 

    As I keep saying, this doesn’t matter. Every act that is now “prohibited” is already illegal. There’s no reason to believe that they’ll follow this “directive” if they can’t be bothered to follow the law.

    There must be consequences spelled out – and I mean “you will be criminally charged and prosecuted for crimes you commit” consequences for them to get the idea in their head that they need to change their ways. Paid vacations don’t teach lessons.

  9. #9 |  EH | 

    Minneapolis cop who punched a guy into a coma gets his charges upgraded:

    http://www.startribune.com/162779646.html?refer=y

  10. #10 |  oscar | 

    Yelling “stop resisting” has become the norm during a police beatdown in order to protect the police. Now, a new CYA for observing someone with a camera will become “gun!, gun!” and the camera will get taken down along with the operator.

  11. #11 |  Yizmo Gizmo | 

    The story goes on to say that the policy explicitly reaffirms the right to criticize police,..

    No way, awwwesome, that is almost like a 1st Amendment type of proclamation, and they’re gonna let us do that? OMG no way! That is sooo cool, hey where’s my IPOD?

  12. #12 |  croaker | 

    I believe Oscar @10 hits the nail on the head. We will see a lot more “it looked like a gun” homicides now that the General Order has been published. Those are almost never prosecuted, and wrongful death lawsuits are iffy.

  13. #13 |  croaker | 

    Emily Good: Notice of claim was filed, no word on the actual lawsuit. They may actually be in settlement negotiations. If so, they ought to take that DC General Order and make it part of the settlement.

  14. #14 |  Tom | 

    SJE–

    The ACLU filed a notice of voluntary dismissal once a settlement agreement was reached with MPD. There was no consent decree or court order, so the court no longer has any jurisdiction with regard to these parties on these issues. If MPD issues a materially different order in the future, a breach of contract suit based on the settlement agreement seems like the only remedy.

    Dave, Helmut, and Michael–

    It is true that too many cops don’t let constitutional or other legal consideration intrude too much on their day-to-day decision making. However, after having spent a couple years suing cops for constitutional and statutory violations and continually scraping the Fraternal Order of Police’s shit off of my shoes, I can say that cops absolutely DO care about the orders coming from they’re superiors. The reason is simple. Beat some poor scmuck into the hospital, get sued, have the department pay the settlement or judgment, repeat, and you don’t get fired. Disobey a direct order a couple times and you need to start looking for work.

    Fritz–

    Expect in the most egregious circumstances (when the District can claim the officers were not acting in the course and scope of their duties–effectively almost never), the District provides officers with defense counsel and indemnifies them for any successful claims against you. This won’t change anything in that regard. Had Mr. vorus prevailed in his suit, the District would have been on the hook for a judgment (and is for the settlement). The same would be true about any similar future plaintiff.

    croaker–

    The complaint is here:

    http://legaltimes.typepad.com/files/vorus-complaint1.pdf

  15. #15 |  Tom | 

    croaker–

    I see I misunderstood you. Withdrawn.

  16. #16 |  Gorbachev | 

    I’m *sure* the cops will now dutifully allow all citizens to observe their rights when the cops are doing what they naturally do.

  17. #17 |  Tom | 

    As if my typos and obvious misreading of croaker didn’t demonstrate my shortcomings well enough, here comes DC MPD to pile on and prove Dave et al right:

    Headline: “Man claims cell phone taken by DC Police officer at crime scene”

    “‘That was the wrong thing for the officer to do,’ says the ACLU’s Art Spitzer.” [Ha!]

    http://www.myfoxdc.com/story/19116008/man-claims-cell-phone-taken-by-dc-police-officer-at-crime-scene

  18. #18 |  SJE | 

    Tom: thanks for that clarification.

  19. #19 |  Caleb | 

    The federal Consent Decree filed this week in New Orleans also clearly spells out citizens rights in this regard http://nolatarian.com/you-can-film-nopd/

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