Aug 6, 2020

How Can I Avoid Personal Injury or Arrest and Still Film Police?


Generally, In California, Public Recording of Civil Servants is Legal If No Reasonable Expectation of Privacy Exists.

Michael Ehline U.S. Supreme Court.
Attorney Michael Ehline. The Motorcycle Rider's friend.

Michael Ehline wrote a brilliant piece here dealing with personal injury avoidance and filming law enforcement. Check it out. Although we usually only deal with severe injury cases, often, civil rights cases become intertwined into a matter of terrible injuries. For example, a corrupt cop may potentially use illegal or unreasonable force to stop you from filming his/her brutality during detention or arrest.

The recent protests surrounding George Floyd's death underline several key questions Americans have about the state of law enforcement in this country. The vast majority of police officers do their job silently day in and day out. They perform to the best of their ability. They make our cities and streets safer. However, it was the footage of the event that led to George Floyd's death that led us to the moment we're in now.

And for the foreseeable future, filming of police in one way, shape, or form will thoroughly affect our nation and our politics for a long time. The very act of filming the police has become controversial in some ways. Depending on your point of view, it could be seen as an act of public record. Or to others an act of defiance. And yet to others, it could seem like a means to support the police. No matter which direction you take on the issue, I want to break down some of the legal issues surrounding filming the police and reduce the stigma revolving around the topic. After all, that's what I'm here for as your legal eye.

Ehline Law wants to help consumers understand their rights and obligations while filming the police. First, let me start by saying that I love the police. And many of my Marine Corps brothers are now Deputy Sheriffs or CHP. I am pretty sure at least one Redondo Beach K-9 cop is also an inactive Marine. So the bad things I am about to say about corrupt cops, are about BAD Cops, not the good ones. In the Corps, we called them "sh+*birds."

Now that is out of the way, let's delve into the law. First, we will discuss the recording of non-police. That way, we can get a baseline and basic understanding of California privacy laws, and then we will go to the police. So, in California, if you record a private person, and they don't know, you are in trouble.

And this remains true even when filming in public, or even semi-public places. So you could be out on the sidewalk, bike path, or eating establishment. What matters is if the individual you are taping does not have "an objectively reasonable expectation, no one is listening in or overhearing the conversation." If a court decides the person being filmed or photographed had a right to privacy, you are in trouble.

Courts determine this on a case by case basis, based upon the reasonableness of the conditions. So this means you cannot merely assume that you are not breaking the law when you make a recording of a person under such circumstances.

Failsafe When Recording Private Citizens – Get Consent First.

The Law:

The statute applies to "confidential communications" — i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). A California appellate court has ruled that this statute applies to the use of hidden video cameras to record conversations as well. See California v. Gibbons, 215 Cal. App. 3d 1204 (Cal Ct. App. 1989).

In California, always try and get the consent of all parties before recording them, especially if it is reasonable to assume their communications might be "private" or "confidential."

In addition to subjecting you to criminal prosecution, a violation could also trigger the California wiretapping law in a civil lawsuit for damages by the victim(s). (See also Cal. Penal Code § 637.2.) California's wiretapping law requires "two-party consent." In California, it is a criminal act, to record or eavesdrop on confidential communications, like private phone calls, private chats, without the consent of all parties to the conversation. (See Cal. Penal Code § 632.) See also https://www.citmedialaw.org/legal-guide/california-recording-law.


 Recording of Public Meetings:

In California, recording all public meetings is legal. This legally means videotaping is allowed. Furthermore, an exception is when the state or local body holding the meeting determines that the recording disrupts the proceedings by noise, illumination, or obstruction of view. (Cal. Gov't Code § 11124.1(a); Cal Gov't Code §§ 54953.5(a),-.6.) *To learn more, see the "The Reporters Committee for Freedom of the Press's Open Government Guide: California." (Click Here.)

Ok, So Can I Record Cops?

Yes, you can. But the question's answer is not simply yes or no. However, in California, it is well-settled law that it CAN be perfectly fine to videotape or snap photos of the police while they are in action. With exceptions, yes, filming the police is perfectly legal. But you can only film the police while they are on duty, and you can't interfere with their official duties. And this is a gray area where a lousy cop may try to grab and smash your camera. (So look for corrupt cops trying to get in between the reporter, blocking their cameras, and then charging the photographer with resisting or obstructing them!). And if bullets start flying as you stand there filming the arrest of a violent felon, don't expect any sympathy from the police or the mayor if you want to sue for a penetrating bullet wound. 

IMPORTANT: Even if you are within your rights to film the police, and not interfering with an officer's official duties, a corrupt cop can still arrest, charge, and jail you. If the filing deputy believes the cop's version (e.g., that you interfered with the police and had no right to film), you can end up defending against bogus criminal charges. So it can become an expensive and risky proposition to film the police).

Otherwise, cops are treated under the law as private citizens, subject to the same protections above, as anyone else. Other jurisdictions agree. The First Court of Appeals stated that it is ok for the general public to videotape employees, e.g., police officers while working. This decision took place after cops were piecemeal arresting recording citizens while television news channels ran stories.

In California Can I Record The Police With Video?

The internet, especially YouTube, has shown both the good and the wrong side of the police, especially when it comes to the federal TSA goons at the airports. Many agencies, although having received multiple citizen complaints against certain rogue officers, just chose to act as though there was not a problem.

And this is true even though their personnel ignored their sacred oath(s). Others do not make it online because exercising their First Amendment Rights is harder. Furthermore, in other cases, a cop stomps or confiscates the camera. It happens!

In the YouTube examples, you can see a man filming a police officer fiddling with his cell phone. And the police are threatening to arrest him for filming an event. They have surrounded the man and lied to him, telling him he needs an attorney. And they then attacked him, destroyed his property, demanding that he not record the police.

Conversely, in the second video, you also see a friendly cop who understands the law of "open carry," and who also obviously does not object to the future YouTube video. So this may freak you out. Two cops were doing the reverse of one another. The question is, how legal is it to film the police in public?

There have been some individuals who have been prosecuted for filming the police. Police charged them using old wiretapping laws, or with Penal Code Section 148, (resisting, obstructing, delaying).

When All Else Fails Penal Code Sec. 148?

California Penal Code Section 148 is the favored section bad cops use to charge people with crimes who did nothing wrong. Usually, it was the police who had just violated a citizen. So they scramble to make up a story, and hope no one caught what they did on tape! Before the advent of smartphones, it was much easier for lousy police to violate a person's civil rights and use excessive use of force while doing it.

And this remains is a common practice by corrupt cops to accuse someone they just beat up, with a crime. Usually, the Smartphone or camera is "accidentally" destroyed during the arrest. Many nefarious police officers do this so they can get leverage in a future civil case if they are sued.  Plus, this gives the police union some firepower when the bad cops are trying not to get terminated for being, well, a bad cop.

What happens if an arrested criminal defendant pleads out to the false charge (no contest, not guilty, etc.) out of fear? For example, what if they lack money to pay a lawyer, or are "strong-armed" by the public defender, etc.? If so, the officer can later argue reasonable force or methods were used, or the defendant would not have copped a plea. And that is res judicata, etc. in any future civil rights lawsuit. This is the favored method municipal police departments historically have used, and it is very effective at restricting the unalienable rights of the sovereign (you).

Seal Your Coffin With Outdated Wiretap Laws?

Now, these old wiretap laws were enacted in the past to prevent the recording of private conversations. District attorneys faced with prosecuting anyone arrested by police for filming, have only been able to find wiretapping laws to nail the citizen or try and use obstruction charges above. But of course, this is just a pretext and punishment. It's unjust and Orwellian, right? Well, Courts agree!

Enter Alvarez.

This attitude by overzealous prosecutors changed recently, with actions of the U.S. Supreme Court. This came when the court declined the pleas of the ACLU v. Alvarez. The court left in place a ruling by a U.S. Federal Appeals Court ruling. Here, the Appeals Court declared that Illinois wiretapping laws used for the filming of police violated the individual's First Amendment Rights. Amen!

This ruling was a decision that makes sense and is right? But UCLA Law Professor Eugene Volokh said there will still be problems. Professor Volokh expressed in a recent television interview; those police officers are not even sure what the law is. And this can lead to your arrest when you disobey the officer ordering the filming be stopped. He said the worst thing that can happen is being taken to the station, where you would be released a few hours later.

This subject is also one of major controversy-- but one with a clear answer. To recap, yes-- you have the definite right to film the police! Yes, that includes a traffic stop. It also includes filming a distance. It includes filming during a raid during the application of a warrant. Yes, you have the ability to film the police even if they tell you not to film. Legall, you may do so even if it seems technically difficult for you.

Yes, it may also include cases in which you may or may not be charged with a crime. In case the last paragraph wasn't clear enough-- you should never doubt that you have the power to film the police in all interactions. Your time with the police is a public event. Interactions with public agencies-- which this would certainly represent are all able to be recorded. This can happen in multiple ways, including both audio and video recording.

What Are Some Recent Cases?

Twelve states do restrict the right of individuals to record others without their consent. However, the First Amendment and recent court precedent show clearly that an individual can film the police in any reasonable situation. Take several recent cases into account regarding your rights. In one case, Simon Gilk received $170,000 in damages from the City of Boston after he was charged for videotaping police. He wasn't just charged but the city forced a felony upon him.

This was vacated unanimously by the First Circuit Court of Appeals. Among the tips and recent precedent-- you should always record out in the open. Don't hide it-- let the law enforcement officers know and show your phone or camera. There are even cases in which people have been arrested, like the one above, for asserting their rights. Courts have been nearly universal in rejecting such an application of the law.

They're YOUR Rights!

Don't let any one officer or news channel change your mind. There is no law that supersedes the First Amendment. Your rights are just that.

Filming our Public Servants Helps Keep them Honest?

The good news is that some law enforcement officials are protecting citizen's Constitutional rights. One example of this occurred during Thanksgiving weekend at an airport in Albany. A grassroots movement was there informing travelers about the dangers of the TSA body scanner and filmed the encroaching pat-downs at the Albany International Airport. One airport official demanded the activists stop shooting, show their identification, and threatened arrest for breaking the law.

Local law enforcement arrived at the scene, where the sheriff told the airport official that the activists were not breaking the law. He could not arrest them or order them to show their identification. This is no surprise since the Sheriffs almost universally understand that many federal enforcement officials trample on individual rights, as a matter of course.

The sad part about this is not all members of law enforcement will behave in this manner, as did the Shire of the Reef above. In most cases, threats of arrest and intimidation by law enforcement is usually enough to make the activist or individual stop filming. The one thing to remember, it is legal to film the police.

In the Golden State, each jurisdiction and department wants to handle these primarily "false arrest" cases differently. Sadly, the many state prosecutorial agencies needed to see it in writing from the governor. So till that happened, they failed to force their officers to start honoring the law on filming police. But Gov. Jerry Brown signed into law Bill 411. So now California is in accord with the Supreme Court on filming police while on duty.

This rule means when police officers detain a suspect or make an arrest, witnesses can use cell phones to record the incidents. Even the person that is detained may record the event. In the past, many of the recorded videos have later posted on social media websites or YouTube. Many have gone viral, according to Sacramento County Sgt. Jason Ramos, it is the way the world has become. Cops hate it!

  • Yawn

Sgt. Ramos did say that in many cases, the officer's jobs are more difficult due to recording activity by citizens. So, the argument goes, there is a potential for officers to become preoccupied with the people making the videos. And of so, officers won't stay focused on the arrestee, or the investigation. And officer Ramos went on to say there is a "fine line between being a diligent citizen with a camera and interfering." I call nonsense. A diligent person would just remain outside the zone of interference. Then they would exercise good judgment. The film of the altercation can at least show evidence of reasonableness, or not.

Senate Bill 411.

State Senator Ricardo Lara was the author of Senate Bill 411. And he says he believes it is essential for it to be clear in a statute. Now an average person can lawfully record a police officer without concern of arrest or intimidation.  Of course, knowing cops as I understand them, this will not stop cameras from being stomped. Also, other methods will likely get employed to "get control."

Lara said that having the code in the state's law helps cell phone evidence keep people safe. The new law comes after an early August incident. In that case, a Rohnert Park officer pointed a gun at a man who recorded the event on his cell phone. The officer is now facing a lawsuit. One of the cell phone videos recorded made national headlines. This was the Eric Garner choking video.

Lara said everyone has cell phones today. And now we may find them a useful way to "deter violence." The Garner video is one of the examples. And mobile videos can provide evidence in police wrongdoing investigations. The Senator did make it clear that the bill does not in any way give citizens the legal right to interfere with police. But this is already what the law was before the bill passing.

Bill 411 Support From ACLU.

Sen. Lara had support from the ACLU for the bill. Lara said in a written statement, and the law would help to ensure every citizen can exercise their Constitutional right. Making an audio or video recordings or taking photos is a protected right. The letter goes on to say it is a "clear constitutional right to photograph and record the police in the performance of their duties."

The letter ends by stating the bill ensures the public's right to gather information about their officials. Also, it shows abuses. And it may affect the functioning of government in a more general sense.

We applaud the ACLU's efforts at getting the state to notify its agencies. But we question the need to spend so much time and energy on this bill. Passing a law to mandate what already is the law, is not an efficient administration of justice. Also, it sheds light on why jury nullification is making more and more sense.

How Do I Film and Still Avoid False Charges for Obstructing or Delaying?

  • Do stand far away enough from the law enforcement officer to allow him or her to feel safe from any violence on your end.
  • Do not run, at or stand close to an officer who is performing their duties, if, in any way, you provide a physical barrier to them.
  • Be respectful.
  • They are not your enemy.
  • Let them know that you are exercising your First Amendment Right to film.
  • And tell them if they feel you are a threat, to say to you right away.
  • That way, you can alter any perceived behavior, to make them feel safe in the performance of their duties, short of you not exercising your right to record them.

At the end of the day, when tempers flare, you may never be able to avoid injuries when filming certain police. But if you remain in compliance with your rights, duties, and obligations as a citizen, the law is on your side. If you were attacked while filming law enforcement, let us know.

The Case For Police Themselves Recording Detentions And Arrests.

You may be asking yourself what all of the debate is over. After all, the police often record themselves. In a national and local push over the last ten years, many police departments switched over to a system where police wear body cameras. This enables a record of their interactions with the public. It also helps clear up many questions revolving around law enforcement and their activities. The overall program tends to work.

The Federal government found that in general, police officers tend to be more cognizant of their surroundings when wearing the cameras. In one trial involving the Las Vegas Metropolitan Police Department, or the LVMPD, there were significant benefits to wearing the cameras. In the study, over 400 officers in four different districts were followed to include the results of the use of the cameras. Overall, there was a clear benefit, as the report indicated below. Overall, it resulted in potential cost savings and better results for both the police and the general public.

The findings of this study suggest that BWCs have strong potential to benefit police agencies and communities alike. Not only do they reduce complaints against officers and use of force incidents in large measure (and the corresponding costs of resolving those complaints and use of force incidents), they seem to increase police productivity, evidenced by the modest but significant increases in police citations and arrests.

All of these could be used in cases like the George Floyd one. There is footage from the scene, but as we'll see below not every type of footage is the same.

But...

Body cams are likely a good option for police departments. They are no longer monstrously expensive. They're easy to wear. Easy to keep track of. Easy for the Department to keep the footage from the officers' patrols. However, they are often just a stopgap in the overall picture. In other research conducted, the cameras are not a panacea or a total conclusion to the question. Consider the recent research by Pew Trusts on the subject. There are several concerns, including the need for more studies and training behind the cameras. Furthermore, as we see in the case of George Floyd's death, it's not clear whether or not wearing the cameras make a major difference in outcomes for police and the general public.

Sources:

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