How To Record The Police U.S. Constitution allows anyone to film the police

Police, ACLU answer questions about filming on-duty cops
The U.S. Constitution allows anyone to film the police, yet two recent incidents this month involving people with cameras and Portland police renewed questions about the public’s rights.

On Aug 8, a man who police say had been filming them for months was arrested after an “arsenal” of guns and ammunition was found in his SUV. The next night, a couple filming East Precinct officers were accused of disorderly conduct for blocking a driveway.

After the second incident, a Portland Police Bureau spokesman emphasized that filming officers is not a crime “as long as the person filming is not committing a crime to do so.” Officials have worked to develop policies to direct officers how to interact with people who are filming them. That work stems from a 2015 lawsuit filed by woman whose cell phone was improperly seized by a Gresham police officer while she was broadcasting a man’s arrest in 2013.

So what’s allowed and what’s not? The Oregonian/OregonLive posed questions to Portland and Gresham police, as well as a civil liberties expert to learn more about the issue and what the public should know.

Are officers allowed to ask people filming them to stop?

Sgt. Pete Simpson, a Portland police spokesman, said officers can certainly ask, and do, in many instances.

“Generally speaking though, officers cannot order someone to stop filming unless they are otherwise violating the law and are going to be arrested,” Simpson said.

Filming police can happen on any public place or any private property where the person has the permission or right to be there, as long as the activity doesn’t interfere with the duties and safety of the officers and others.

But Kimberly McCullough, legislative director of the ACLU of Oregon, said the public does not need to respond to this kind of question. “Officers can only ask people to move to a safe distance from ongoing police activity,” she said. “For example, an officer could ask you to take a few steps back from the scene of an arrest if you are too close to be safe.”

Gresham police Capt. Claudio Grandjean said officers are operating under the assumption they’re being filmed at all times. The Gresham Police Department created a new policy in May and had officers undergo training, he said.

A common scenario deals with activists who call themselves members of the media. They often show up to police activities to record and often hurl insults or other activities to agitate.

“While the recording itself and/or overt criticism, insults, or name-calling may be annoying, those acts alone do not rise to the level of interference with law enforcement activity,” according to Gresham’s policy.

In Gresham, individuals cannot trespass just to get footage of the police activity. Individuals also cannot block the flow of traffic and pedestrians on public rights of way, such as sidewalks. Other examples of interference include:

* Attempts to tamper with a witness or suspect who interacting with police

* Crossing any police line or breaching reasonable distance established by an officer, which can cause the officer’s attention to be diverted to the individual with a camera

* Repeated attempts to ask the officer questions or other interruptions which distract him from the matter at hand

* Blocking the movement of emergency personnel or equipment

* Inciting other to violate any lawful command or laws

“We are aware that some police departments provide training on this issue,” McCullough said. “However, even in the places where police policy says they recognize the public’s right to film, we still hear from people who are hassled or retaliated against for filming the police.”

What about people who are in the midst of a traffic stop, such as a passenger filming a police officer questioning a driver during a traffic stop? How are officers trained to react to those situations?

“There isn’t specific training around the issue but officers are trained to control their environment within legal grounds and make sure it’s safe for everyone,” Simpson said. “Being filmed during a traffic stop is becoming more routine but drivers and/or passengers should remember that their desire to film does not supersede their need to follow lawful orders to present ID, insurance, etc.”

The ACLU has a cellphone app for people who want to record cops. The app automatically forwards such videos to the civil liberties organization in case the cellphone is seized. On its website, the ACLU advises users, in any situation, to announce they are reaching for their phone and intend to use the app.

“If the officer forbids or prevents you from doing so, do not argue or resist,” according to the website. “Follow the officer’s instructions. If your rights have been violated, your attorney will argue your case later.”

In Gresham, officers are trained to order people with cameras to stand at a “reasonable distance.” The officer should consider the circumstances of the law enforcement activity, and the distance should not discourage or interfere with the person’s recording effort, according to the policy.

If the officer believes a person is interfering, a supervisor should be called. If possible, the officer should wait for the supervisor before seizing any recording or device. Together, the officer and supervisor should issue warnings about the interference and provide direction on how to be compliant.

If an arrest is imminent, the action must be based on probable cause, and officers are to document the nature and extent of the unlawful behavior, the warnings or the reasons why warning were not practical in that circumstance.

What’s the backstory on Gresham’s policy and what’s in store for Portland?

The policy stems from a 2015 lawsuit filed by Carrie Medina against the Gresham Police Department, Portland Police Bureau, TriMet and four officers. The plaintiff accused the agencies of violating her First, Fourth and 14th Amendment rights after a 2013 incident. At the time, Gresham Officer Taylor Letsis seized Medina’s cell phone as she was broadcasting an arrest.

Medina’s incident also involved three unnamed Portland officers, and all four officers worked under TriMet’s transit police group, which comprises officers from multiple local agencies.

David Lewis, one of Medina’s attorneys, declined to comment Wednesday because the lawsuit was ongoing. According to a July 29 filing by both parties, attorneys disclosed they were unable to reach a resolution through mediation, “but did reach a preliminary agreement to undertake certain policy and training changes in order to finally resolve the claims.”

Gresham completed its changes in May, but Portland officials delayed because of the senior leadership changes after the resignation of the police chief and reassignment of his command staff. The court record shows new Chief Mike Marshman plans to review the policy suggestions this month.

The lawsuit also coincided with a law passed by Oregon lawmakers last year the essentially says the act of videotaping police or other law enforcement does not constitute the crime of interfering with an official’s duties.

Portland’s policy and training should be similar to the rules adopted by the Gresham Police Department. The city’s deadline is Nov. 1.

— Tony Hernandez
thernandez@oregonian.com
503-294-5928
@tonyhreports

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