The wail of sirens, flashing red and blue lights, and a speeding police cruiser have shattered many a mellow day of mine lately. I used to assume the best and just get out of the way— but now I’m drawn to police-public encounters.
A training from Portland Copwatch a few years back taught me filming the police is legal in Oregon, as long as you’re not interfering with them. It’s definitely best to know your rights and not be surprised if the police try to intimidate you— as an Oregon woman found during an encounter with Gresham Police last year.
While reading on the grass in Col. Summers Park recently, I had a police cruiser drive past me about ten feet from my head, moving too way fast for comfort. When I walked over to the scene a few minutes later, I found out they were responding to a call about a guy who was naked. This weekend when I was in the Pearl for Pride, PPB responded in haste to a man who had a beer in an ice cream shop. No one was hurt or arrested in either incidents, and both drew a crowd.
Last week I was in Red and Black Cafe, when four officers entered unexpectedly. Two officers were from the Oregon Liquor Control Commission and two were from PPB. Red and Black has received local and national press for their policy of excluding police, so the OLCC officers brought PPB officers for their safety, they implied.
From my training (thanks Dan), I remembered to clearly state I wasn’t interfering, and stayed a safe distance away. A “safe distance” is relative, and in a small restaurant, I got pretty close to capture the exchange. I missed the beginning of it, but what I filmed summed up the reason they came fairly succinctly. You can read background on the police and OLCC’s investigation in the video description.
A group called Film the Police is going out regularly to film police-citizen interactions. It’s great work, in my opinion, because it provide a record of the interactions, and it makes PPB officers comfortable with the fact that it’s legal for citizens to film them. PPB officers have even been retrained on the issue of being filmed by the public, due to legal threats by Joe Anybody, another awesome local film activist.
In the comments of the link about retraining officers, a PPB spokesperson was quoted by the Mercury reporter on the exception to being filmed: “If police officers huddle away from other people they would be displaying an expectation of privacy. Therefore, their communications would no longer be public, and could not be recorded without their consent. But police never start out having an expectation of privacy that would prevent them from being recorded when they stop or arrest someone.”
That’s a very clear acknowledgment of Portlanders’ right to film police. Recording these interactions can be good for everyone, and honest officers should welcome it.
But what about police seizing phones, claiming that they’re evidence? A set of guidelines issued by the US Justice Department in 2012 indicates that police must obtain consent before viewing video evidence, and that consent can be refused. Otherwise a warrant is required.
A warrantless seizure can be made only if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “police had good reason to fear that evidence would be destroyed,” according to a Supreme Court ruling referenced in the following quote:
Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” United States v. Place, 462 U.S. 696, 701 (1983). Any such seizure must be a “temporary restraint where needed to preserve evidence until police c[an] obtain a warrant.” Illinois v. McArthur, 531 U.S. 326, 334 (2001). Seizures must be limited to a reasonable period of time. For example, in Illinois v. McArthur, the Supreme court upheld a police officer’s warrantless seizure of a premises, in part, because police had good reason to fear that evidence would be destroyed and the restraint only lasted for two hours— “no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant.” Id. at 332. Once seized, officers may not search the contents of the property without first obtaining the warrant. Place, 462 U.S. at 701 & n.3. In the context of the seizure of recording devices, this means that officers may not search for or review an individual’s recordings absent a warrant.
I’ve read stories of officers illegally detailing filmers and erasing incriminating footage. It’d be hard to prove, once a camera has been confiscated. Even though it’s illegal, I wouldn’t doubt it happens. I’ve been looking for an app that automatically saves video on remote servers— and Fi-Vo Film seems like the best bet. The bullethole in the logo is a bit disturbing, but it does exactly what we need: allow us to film a video that uploads to a Dropbox account within seconds. You have to actually stop the video to have it upload, and when I shut off my camera during filming, it didn’t upload it. That’s just a word of warning if your camera’s about to get smashed or taken.
I should also say, I’m not a lawyer— just a fellow citizen trying to get folks involved— so please don’t construe my advice as anything official. Continue to flex your rights folks, including those that allow you to film the police. Rights are like anything else, use it or lose it.
We hope you will make this practice, of filming police, attractive to a broad community. We think it a civic duty. The DoJ called Portland’s police oversight mechanisms a ‘self-defeating accountability system.’ We have yet to establish a means of employing video evidence in a way that results in discipline for misconduct. Consult Hardesty wants ‘video drop boxes’ established, so that lawyers can bring evidence in civil trials … our only currently effective remedy.