Tuesday, August 28, 2012

Austin police say photographers should stay 50-60 feet from arrests

Austin police are "working on guidelines" which would require "people filming the police to stay 50 to 60 feet away," reported the Austin Statesman, after the the second arrest this year of police accountability activist Anthony Bueheler for filming cops while they were arresting someone. In the latest incident, the activist was filming from 15-20 feet away, which seems plenty far enough to avoid any interference. He was arrested because the person being handcuffed and carted away yelled at the photographer to stop filming, allegedly causing an officer to "stumble."

In an email to media received by Grits, and which she posted on her Austin Gonzo blog, Austin police accountability activist Debbie Russell posed a series of important questions, not the least of which is: "If random bystanders are 10' from a detainment, as they often are without ANY concern by LEOs, are they going to be arrested if officers are also planning to arrest a videographer 30' away? If not, why? How is someone holding a camera further away MORE of a danger than someone closer, without a camera (with their hands free)?" Good point.

Russell pointed to a Department of Justice memo (beginning on p. 3 of the pdf) outlining the USDOJ's "position on the basic elements of a constitutionally adequate policy on individuals’ right to record police activity," and the specifics are worth quoting in some detail. DOJ contends that "private individuals have a First Amendment right to record police officers in the public discharge of their duties, and that officers violate individuals’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process."

The memo goes on to say that "Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers." Further, "the right to record public officials is not limited to streets and sidewalks – it includes areas where individuals have a legal right to be present, including an individual’s home or business, and common areas of public and private facilities and buildings."

Therefore, said DOJ, departmental policies "should instruct officers not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or other recording devices"

Not only that, "Because recording police officers in the public discharge of their duties is protected by the First Amendment, policies should prohibit interference with recording of police activities except in narrowly circumscribed situations. More particularly, policies should instruct officers that, except under limited circumstances, officers must not search or seize a camera or recording device without a warrant. In addition, policies should prohibit more subtle actions that may nonetheless infringe upon individuals’ First Amendment rights. Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices."

So when does recording police activities cross the line to become interference or obstruction? Said the DOJ memo, only when "the person engages in actions that jeopardize the safety of the officer, the suspect, or others in the vicinity, violate the law, or incite others to violate the law." Merely videotaping police doesn't seem to match any of those. That said, "Courts have held that speech is not protected by the First Amendment if it amounts to actual obstruction of a police officer’s investigation – for example, by tampering with a witness or persistently engaging an officer who is in the midst of his or her duties." But those caveats don't seem to apply in Mr. Bueheler's latest arrest.

The right to photograph police in public is not limited to professional photojournalists. DOJ noted, "The Supreme Court has established that “the press does not have a monopoly on either the First Amendment or the ability to enlighten (citation omitted). Indeed, numerous courts have held that a private individual’s right to record is coextensive with that of the press. A private individual does not need 'press credentials' to record police officers engaged in the public discharge of their duties.”

Freedom of speech and assembly may be limited by "reasonable" restrictions on "time, place and manner," but those restrictions must be content neutral. So if a person standing 15-20 feet away from an arrest as an observer (or for that matter a passerby) is not interfering with an officer, it hardly seems constitutionally justified to pretend that the same person holding a camera would all of a sudden lose their right to be there. I'm not a lawyer, but unless the guidelines being developed require everyone to stay 50-60 feet from every arrest, that seems like a civil rights lawsuit waiting to happen.

Russell pointed out that in many instances, the 50-60 foot rule would be impractical. She wrote:
Having some experience with the measurements of 6th St. (a side job is working a certain festival twice a year...and I know the 10x10 tents, back to back, take up half the road, leaving 10' on either side, meaning the road, curb to curb is about 40')...essentially, you'd have to stand against the wall of one building to videotape a police detainment directly across 6th St. on the other sidewalk, and THEY'D have to press up against that building to get 50' between you. You'd have to walk 10 feet down on your side to get 60'. And can you even get any video through all those heads?
That, in fact, is probably the point. IMO the reason for choosing 50-60 feet instead of, say, 10-15, is that most cell-phone cams don't have a zoom function and can't take good pictures from such a distance, rendering the resulting video all but useless.

RELATED: Police v. cameras: A recurring conflict.

23 comments:

Mike Howard said...

I've volunteered as a legal observer at protests and taught other legal observers how to properly document protests without endangering themselves or others. The key is to not interfere: if you're 10-15 ft away that should be fine (in most circumstances). Imposing a blanket 50-60 ft rule is ludicrous and easy to see through. Being that I've never seen an officer hassle a non-recording bystander for being closer than 50-60 ft away, it would be easy to show this sort of rule is not content-neutral and thus a violation of the First Amendment.

We ought to fight this when/wherever it's implemented. Police oversight and accountability is woefully inadequate. There are great officers out there, but there are terrible ones too and the only way to root out oppression and injustice is to keep an eye on it.

Richard Boland said...

I have filmed officers making polite (as much as possible under the circumstances) and professional arrests on 6th street from closer than Antonio was, and had the officers thank me afterwards for keeping a safe distance. These officers are proud of the job that they do, and have every right to be so. I believe that the APD still has a majority of good officers, who live by their oath and obey the same laws that they enforce, but the "Bad Apple" problem is growing and spreading within the Austin Police Department.

The officers that want us 50-60 feet away aren't just scared; they're terrified of having the job that they do exposed to the public, as they well should be. These officers are the very reason that the Peaceful Streets Project exists.

When we show up, wearing bright red Peaceful Streets Project T-shirts, and holding up cameras with the PSP logo on them, at least they know we're there. If a cop can't act right knowing full well that he or she is being filmed, how are they going to like it if we have to be more discreet? Imagine having to worry that every balcony on 6th street has someone with a camera and a telephoto lens. Imagine them worrying about every person on 6th street talking on a cell phone, with the back of the phone pointed in the direction of the officers. Imagine if we have to start using "Spy Exchange" products, hidden cameras built into eyeglasses, hats, or briefcases.

The Peaceful Streets Project is not going away. We film openly and in plain sight because we would prefer that our presence stops police misconduct, rather than catching it after the fact, but if you want to force us to go "underground," be prepared for a lot more APD officers to get their "Fifteen Minutes of Shame" on youtube and the PSP website.

Anonymous said...

Does the police chief understand that the minute he 1) adopts such a policy and 2) enforces it with an arrest, there will be a 1983 lawsuit filed so fast it will make his head swim.
And, does he understand that when the city loses that suit, the city's going to get hit with a bill under the civil rights attorneys fee act that will make city council's eyes water?
I'd be happy to take that suit. It would be a nice addition to my retirement fund.

Ryan Paige said...

So, presumably, if I'm walking down the sidewalk, I'm also interfering with traffic.

Anonymous said...

While I think 50 to 60 feet is overboard, these activist people need to at least try to see it from the officer's point of view.

10-15 feet might seem ok, but it's not, it only takes a determined attacked 2 seconds or less to cross that distance, not much time to react. Since the officer doesn't know you, he doesn't know how much of a threat you are.

I get video taped often, no big deal, free country and all that, but it would be nice if just once the concerned citizens would just try to understand things are different for me than they might be for them.

Read here to understand why police officers are concerned about how close bystanders are: http://en.wikipedia.org/wiki/Tueller_Drill

ckikerintulia said...

Interesting that it's the big bad feds at DOJ upholding first and fourth amendment rights, and the down home locals violating those rights.

Anonymous said...

A "police accountability activist?" WTF? What qualifies one to do THAT for a living? Is that kind of like a "community organizer?" Are they just in Austin? I'm pretty sure I've heard it all now! Liberals...

Gritsforbreakfast said...

3:03, that's not what she does for a living, it's what she does to better the community with her spare time instead of anonymously trolling blogs to make snarky comments. Similarly, not every GOP activist, nor every Democratic one, is employed by the party; most aren't. Welcome to the world of volunteer work.

2:28, from 50-60 feet away a bullet would get to you even faster. Why not require observers to be out of sniper range?

In truth, it's situational. If the arrest is being made on the sidewalk on 6th street on a Friday night, even 10-15 feet is unreasonable for passersby without walking into traffic. Ditto, for example, for arrests at the Occupy protests, etc.. I see your point and the link you provided gives food for thought, but they're not suggesting EVERYBODY stay 50-60 feet away, just the folks with cameras, which causes me to question whether APD's motives are really protecting the officers or just avoiding bad publicity.

Phelps said...

That's a reasonable restriction only if it is in the same world where you can ignore any police instructions that are yelled from more than five feet away.

Bob said...

50 to 60 feet away from arrests; pretty obvious these cops don't want to be accountable to the people they serve.

After watching the video of the events leading up to Buehler's arrest, and comparing that to the the police officers' accounts, it is obvious APD has issues with officers being truthful. How does "Sgt" Wayne Vincent keep a straight face?

Pathetic APD, just pathetic.

Anonymous said...

Who is anarchist author, Scott Crow?

The host of the police abuse panel, Debbie Russell, is a longtime Austin activist who was arrested at the eviction of Occupy Austin. In another highlight of the day, she was joined on stage by Scott Crow, anarchist author of Black Flags and Windmills, for a discussion of alternatives to calling the police and how they’ve been put into place at the downtown cooperative Ecology Action.

Anonymous said...

Check out this book: Black Flags and Windmills

About the Author
Scott Crow is an anarchist activist, a community organizer, a writer, and the founder of social justice groups and education projects throughout Texas and the south, including Common Ground Collective, Dirty South Earth First!, the North Texas Coalition for a Just Peace, Radical Encuentro Camp, and UPROAR (United People Resisting Oppression and Racism). He has also trained and organized for many grassroots organizations, including ACORN, Forest Ethics, Greenpeace, Rainforest Action Network, and The Ruckus Society, and is currently collaborating on a number of sustainable cooperative projects. He lives in Austin, Texas. Kathleen Cleaver is a senior lecturer in law at Emory University and was the spokesperson and first female member of the Black Panther Party's decision-making body. She is the author of Liberation, Imagination, and the Black Panther Party, and We Want Freedom. She lives in Atlanta.

Anonymous said...

Ruckus Society?

From Wiki:

The Ruckus Society has been described by many reliable sources as an anarchist organization that played a major role in inciting property damage and vandalism during the Seattle WTO protests in 1999.[1][2][3][4] According to a 2005 article by Randy Borum and Chuck Tilby, in Studies in Conflict & Terrorism: "Some organizations such as Ruckus Society and Anarchist Black Cross Federation even specialize in providing training in activism and varying forms of civil disobedience. There are many resources freely available to teach interested anarchists how to conduct surveillance, prepare for protests, climb and descend, build shields, and craft weapons. The legality of the proposed actions is secondary to their perceived effectiveness. Some manuals and instructional resources limit themselves to nonviolent tactics; others do not."[5] In a 2000 interview with the magazine Mother Jones, John Sellers said: "I make a distinction between violence and destruction of property. Violence to me is against living things. But inanimate objects? I think you can be destructive, you can use vandalism strategically. It may be violence under the law, but I just don't think it's violence."[6]

Anonymous said...

Since the Austin PD was ordered to monitor Gritsforbreakfast while on duty, this goes out to those public servants who drew the short straw for today's piece.

Tell the Chief you discovered that today is the 2nd Annual - "National Film / Record / Document / Sketch a Public Servant Day" Celebrating, Memorializing & Documenting; The Good, preserving the criminal actions of The Bad & becomes the State's evidence when The Ugly is allowed. Send footage to YouTube, FaceBook, and more.

Note: 'Stringers' (paid ride-a-longs, former cops and their cousins with cameras) are encouraged to continue participating. No Public Servant is to be left out. From the Parking Meter Enforcement, Utility Meter Readers, Code Enforcement, Animal Control, Elected Officials, Mail Persons to every form of Law Enforcement should be considered for preservation.

*Remember, police train police. The Bad ones consider photographers as criminals defending criminals. The Good one's don't give a flying shit if you just stay back and film from a distance. They'll even autograph the film casings & ask you to come to court if needed. The criminals hate it when they get busted and will beat the shit out of those that don't possess self defense skills. One 'Stringer' suggests that we call 911 (get operators ext. in case of being disconnected) while documenting and don't tell them your exact location or what you are wearing to avoid getting chased down or worse.

Instead, if possible, film from the hip while talking and describe what you are witnessing to the dispatcher. Don’t be vague or exaggerate. Call the Local Media tips line and repeat. Rehearse how to remove your Simms card in case you have to protect it from criminals.

BTW. This national event was originally created in the 70's by the grandson of one of Texas' most famous Sheriff's. Thus, the ol cop haters mantra is voided. *Photography is not a crime & the taxpayers are about to fork over as shit load of money to those of us that are falsely arrested & wrongfully convicted for engaging in the sport / hobby / profession. Taxpayers paying $80,000.00 per year, per incident, plus, plus will not become a presidential candidate issue unless we get it on 'all' of the debates' Q. & A forms. Contact CNN and get it done.

*Posted on
8/28/2012 11:46:00 AM in a GFB Post entitled - "Police v cameras in public spaces: A recurring conflict"

Thomas R. Griffith said...

Hey Grits, this morning, I asked 50people exiting a big box store to ‘stop’ when they thought they were 50 to 60 feet away & to turn and take a photo.

None of them stopped at the 50 foot mark or the 60 foot mark. The photos looked like stick figures, which goes hand in hand with your reasoning as to WHY? they came up with these magic numbers.

I predict that street vendors will soon be selling 75 foot tape measures and those on the metric system and /or don’t speaky are screwed. Sales of zoomables will soar. The Rap group Fity-2-Sity will climb three notches up the chart on the very day they form. Thanks.

NOTE: Cameras don’t kill, they simply preserve images of; the good, the bad & the ugly.
Okay, 007’s might have.

Anonymous said...

These anarchists and radicals are trying to set the cops up. They have a hundred schemes to stage a conflict and mug for the cameras and try to sucker the cop into responding and taking part in their theater. This has been part of their playbook ever since Abbie Hoffman in the 1960s. The cameraman becomes part of the drama and provokes the kind of reaction that they are hoping for. Then the leftwing bloggers start crying "abuse! abuse!" It's a big scam right out of their playbook. Just look who is setting up this little guerrilla theater. These young cops are no match for these well trained anarchists with their actors and cameras. As soon as a camera shows up, the "victim" begins to struggle and yell and carry on and put on a heck of a show. The cop has no idea what he or she is dealing with. Not knowing or understanding, he can play into their hands.

Anonymous said...

I agree. I think that a lot of people simply resent any sort of governmental authority and are out there staging events or seeking out extremely volatile situations and then further inflaming the situation (by yelling and so forth) in order to try to cast the police in a bad light. If police observers want to stay neutral, they shouldn't be talking, yelling, or speaking at all, and they shoudln't mind standing back from the action. Use your zoom and keep your mouth closed or you lose credibility.

Anonymous said...

"and try to sucker the cop into responding and taking part in their theater."

So, why is it that this is such an easy thing to do. Are the officers egos really that fragile?

Bob said...

Read post from 8/29 at 12:10 and 12:20. Hope these fear mongering APD guys aren't on the clock posting this crap.

It is time for a new police chief who is man (or woman) enough to address the problems with some of these bad assed cops and restore integrity to APD, rather than covering for them or making excuses.

We don't need anymore "Operations" against the people. APD's military terminology when addressing issues in the community is getting freakin' scary.

I am concerned that bad cops with short fuses and guns along with corrupt government are the very things that have the potential to incite rioting and violence in our streets. This behavior is a greater threat to our freedom than a handful of young people armed with CAMERAS exercising their rights.

Anonymous said...

The Police Chief will always support his Police Officers in their reports of an alleged crime, and the Police Officers will only report the statements of witnesses who agree with the Police Officers' official version of events, so the Courts never hear the other side of the story *except* when a video clip of the detainment is recorded by a bystander. The main antidote to police brutality is citizen videographers.

Anonymous said...

gitallea28
Really 3:357?

http://www.statesman.com/news/local/austin-police-discipline-up-complaints-down-after-acevedos-2428211.html?printArticle=y

Anonymous said...

The distance is not just about having small, hard-to-see video. It would make the audio entirely useless. The microphones built into a smartphone would have no hope of recording anything but wind noise and background sounds.

Also: I wasn't aware that APD thought it was a lawmaking body. if the department issues guidelines, that's just for how their officers are supposed to behave by internal policy. An interdepartmental memo doesn't define what conduct by citizens is or is not a crime.

Bob said...

Anonymous @ 5:03 pm 8/29: read the article. Found this of interest: "Police Monitor Margo Frasier, whose office tracks complaints against officers, said she doesn't think that the numbers are an indicator of changes at the department and that enough citizens are aware of how to make complaints against police."

And: "Frasier said she doesn't think the trends of more internal complaints and fewer external complaints necessarily mean an improvement at the department....I think there's still an issue of public awareness of what they can do," Frasier said. "It's our challenge to get the word out there."

I think Margo Frasier is onto something.