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.