The Crime of “Shooting” Police
by Jay Bender
News was buzzing last week about a United States District judge who had ruled that it was illegal to take photographs of cops—even in public places.
Fortunately there are other courts that have ruled that citizens and news photographers have a constitutional right to photograph police. Unfortunately, not all police believe they should be photographed while going about their business of serving and protecting the public.
I have been involved in four cases where photographers or videographers were arrested or their cameras confiscated for shooting law enforcement and public safety crews at work. In the first case an Amtrak train travelling through Lugoff derailed. One of the first photographers on the scene was from The Item in Sumter. As the photographer was going about his business he was approached by a Camden police officer who was working under the supervision of the Kershaw County Coroner. The photographer’s camera and film (it was that long ago) were confiscated. It took two days of negotiation to get the confiscated items returned.
The Item and the photographer filed suit against the cop and the coroner alleging a violation of First, Fourth, Fifth and Fourteenth Amendment rights. The case was settled and Hubert Osteen donated the paper’s share of the settlement to the FOIA fund.
A photographer for The Herald in Rock Hill was charged with interfering with police because she as shooting photos at the scene of a pedestrian-train collision. It didn’t matter to the police that the photographer was on a public street some distance from police and fire personnel and was in no way impeding the recovery of the body. At trial a municipal judge dismissed the charge.
Also in Rock Hill a Winthrop journalism professor was charged by school police with interfering with their efforts at the scene of a vehicle fire. The professor was shooting video for the school’s news broadcast, and was standing behind the police when he was charged. Again a municipal judge dismissed the charge, and as part of an agreement not to sue, Winthrop and police officials were required to attend a lecture on the First Amendment.
A photographer for The State in Columbia was handcuffed and placed in the back seat of a patrol car by a police officer who was unhappy that photos were being taken at a lot where a number of cars had been towed for illegal parking. Ultimately the photographer was released and the charges dropped.
The United States Department of Justice (DOJ) submitted a position paper in litigation involving the Baltimore police department presenting the following questions:
This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officer violate citizens’ Fourth and Fourteenth Amendment rights when the seize and destroy such recordings without a warrant or due process.
The DOJ urged the court to answer both questions in the affirmative, stating:
The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.
The United States Court of Appeals for the First Circuit noted that the First Amendment protects the filming of government officials in public spaces, and explained that this protection applies to both citizens and professional journalists in light of technology that enables the recording of current events by cell phones and digital recorders in the hands of bystanders.
So, what advice to I have for a citizen or a journalist who is confronted by a police officer who threatens arrest or confiscation of a camera because the officer doesn’t like what is being photographed? If possible, try to defuse the situation by asking for an opportunity to speak with the officer’s supervisor. Try not to be confrontational—after all you are dealing with someone who likes being in charge and who is armed.
If you have sound recording capability, keep recording the exchange. If asked to hand over your camera, ask to see a warrant. If forced to hand over your camera, try to remove your active memory card and replace it with another. If you find yourself in a situation where you anticipate the police might try to confiscate your equipment, save your material to memory cards often and change cards so that even if one card is destroyed by police, you have other material saved.
I do not know where the idea originated, but I get the feeling that police no longer see themselves as a part of the community they are to serve. As a consequence, police believe they are entitled to operate in secret with no public oversight or scrutiny. I think that attitude diminishes the credibility of the police which, in turn, leads the police to be more isolated. Law enforcement lobbied hard in the General Assembly to keep “bodycam” video out of public view. I believe this lobbying was motivated by an awareness that not everyone in a police uniform will act appropriately or even legally, and law enforcement fears the public may come to understand that.
My bottom line: keep shooting.
Printed on March 9, 2016.
Jay Bender has been SCPA’s legal counsel for nearly 30 years. He holds the Reid H. Montgomery Freedom of Information Chair at the University of South Carolina and teaches media law at the USC J-school and USC School of Law.