Time for Austin PD to enact policy on filming police after 3rd arrest of local activist

Austin police can't seem to figure out when the public can or can't film them, but seem to have decided for sure that Antonio Buehler can't. The West Point graduate and Iraq war vet was arrested for the third time Friday night along with another activist from the Peaceful Streets project for filming police (the formal charge was "interfering with public duty"). Austin PD told the American Statesman that Buehler "was asked to move to an area where other people were, but he kept stepping back into where the officer didn’t want him," but witnesses (see here and here) say he complied with police requests to back away from the scene. A press release from the group described the encounter thusly:

The arrest took place at 1219 W. 6th St. near Pressler after Peaceful Streets Project members pulled their car over to witness a DWI stop. They were approximately 30' away from the detention when none-other-than Officer Oborski (the arresting officer of Buehler last New Year's Eve  ...) shined a flashlight in Buehler's face, yelling, "Mr. Buehler, back up!"

Buehler asked, "how far?" but Oborski didn't respond. Buehler asked a second time, "how far?" while already backing up, yet still Oborski wouldn't respond. By this time, Buehler and Dickerson were 40' away.

Then Officer Johnson stepped in and repeated the "back up" command, to which Buehler said "how far?" Buehler again moved back another 10' but Johnson told him to "move over there or leave." He motioned to the other side of the police vehicle, putting him CLOSER to the detention - an illogical command. Buehler continued to protest this illogical issue, while backing up further, saying that he wasn't interfering and was complying with orders to move AWAY from the scene.

Johnson said again, "move over there (closer to the detention) or leave" at which point both PSPers were nearly 60' away, and Buehler responded, "fine, I'm leaving," as he proceeded to walk away. It was this point that Johnson and Officer Holmes announced they would be arrested.

The activists have since been released but their video cameras were not returned to them along with the rest of their personal property. Short of some "accidental" erasure, though, eventually the videos will come out and we'll discover whose version of events is closer to reality: APD's press statement or the witnesses in the videos linked above, whose accounts jibe with the press release that Buehler complied with commands to back away.

Ironically, just three days prior Austin PD had backed off the notion of requiring citizens shooting video of police to stay 50-60 feet away from them. (See prior Grits coverage.) That's not too surprising, since the whole idea was surpassing stupid to begin with, but the activists' arrest almost immediately transformed APD's backtracking into a pyrrhic victory. Reported the Austin Statesman ("Police: No distance restrictions on where police can film officers," Sept. 18):

Austin police officials now say they won't ask members of the public who film officers to stay 50 to 60 feet away from them as indicated in an August news conference after the arrest of a local activist.

Assistant Police Chief Sean Mannix said he believes it would be "arbitrary" to assign a certain distance between officers and people who might be filming them, as well as difficult to enforce.

"I don't think there's a practical way of doing that," Mannix said. "There is no magic number of feet. The officer is going to make a determination of how much of a buffer zone they're going to need to keep themselves safe, and they'll communicate that to folks at the time."

Mannix's statements represent a change in direction from comments police officials made last month, after Austin activist Antonio Buehler was charged with interference with public duties when police said his actions compromised an arrest they were making downtown.

Judging from this latest episode, APD's decision not to implement a ridiculous "stay 60 feet away" policy is no victory for the copwatchers, since in essence it leaves discretion entirely to each individual cop, who in Buehler's case seems to inexplicably usually be Officer Oborski (though this time Oborski had the sense to get others to do his dirty work).

It's clearly time for Austin PD to enact a formal policy regarding citizen filming of police. They could do far worse than to model it on the one enacted in by the Metropolitan Police Department in Washington D.C. this summer. According to that remarkably reasonable policy (pdf), "If a person is photographing or recording police activity from a position that impedes or interferes with the safety of members [read: officers] or their ability to perform their duties, a member may direct the person to move to a position that will not interfere." However, "A person’s recording of members’ activity from a safe distance, and absent any attendant action that obstructs the activity or threatens the safety of the member(s), does not constitute interference," which likely would have protected Mr. Buehler in this latest incident. Neither the police statement to the press nor witness accounts claimed Buehler "interfere[d] with the safety of [police] or their ability to perform their duties." APD only claimed (contrary to the witness accounts) that Buehler went "where the officer didn’t want him." In D.C., that wouldn't be enough to arrest him unless more was going on than filming.

Further, the D.C. policy sensibly insists that "The Watch Commander, CID, or other official with supervisory authority over the member, must be present at the scene before a member takes any significant action involving a person’s use of a recording device. This includes warrantless search or seizure of a camera or recording device, or an arrest." Austin police should implement the same restriction, and eliminate field officers' discretion to make such arrests unless exigent circumstances exist (which are also carefully defined in the D.C. policy).

Given the proliferation of cameras in cell phones, this issue will continue to come up, with or without the Peaceful Streets Project. It's time for Austin PD to tell the public under what circumstances they will arrest people for filming of their activities. Just declaring officers can arrest someone for being "where the officer didn’t want him" affords too much discretion, inviting abuse and public distrust.

RELATED: Police v. cameras in public spaces: A recurring conflict.

MORE: A commenter supplied a link to an unedited video of the incident. Starting at about the 5:30 mark, you can see Buehler's arrest in the background (he's wearing white pants) and the cop walking him directly toward the DWI stop. I lost count because the video doesn't show his legs once they get close to the woman taking the field sobriety test, but Buehler was perhaps 25- 30 steps away from the DWI stop. How in heaven's name is that interfering with public duties?

AND MORE: See additional commentary from Pixiq: The Photo World in Focus, which includes a link to this training bulletin (pdf) advising Austin police on when they may arrest citizens filming police. Below the jump, see a Peaceful Streets Project press release issued today (see related Statesman coverage) quoting a statement the National Press Photographers Association that criticizes APD's policy as too broad.

APD FILMING POLICY UNCONSTITUTIONAL, NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION SAYS

Following the third arrest this year of Peaceful Streets Project founder Antonio Buehler for legally filming police activity last Friday, the National Press Photographers Association (NPPA) has issued a statement calling the Austin Police Department’s policy on “interference with public duties” unconstitutional. The policy was issued August 28, immediately following Buehler’s second arrest.

“Aside from being overly broad and vague the APD policy leaves far too much to the discretion of its officers, whereby they can construe almost anything as ‘interference,’” said NPPA General Counsel Mickey Osterreicher in the statement. “Under these rules officers are free to create a chilling effect upon far more speech (photography/recording is deemed a form of speech for First Amendment protections) than is necessary to achieve a substantial government interest—that being actual interference with a police officer in the execution of his duties—and would thus be held to be unconstitutional.”

Buehler and Peaceful Streets volunteer Sarah Dickerson were arrested early Friday morning while videotaping a DUI stop in progress on West 6^th Street and charged with interference with public duties. They were approximately 30 feet away from the officers and suspect when Officer Patrick Oborski, who arrested Buehler last New Year’s in the controversial incident that spearheaded the Peaceful Streets Project, shined a light in Buehler’s face and yelled at him to back up. Both Buehler and Dickerson moved backwards while Buehler repeatedly asked “how far?” receiving no reply. Sgt. Adam Johnson then illogically ordered them to walk to the rear of the parked police cars, meaning they would have to walk toward Oborski and the suspect rather than away from them. Buehler and Dickerson continued moving backwards while Buehler asked for clarification on where they could stand, until they were approximately 90 feet away from the suspect. Johnson told them to join the Peaceful Streets volunteers standing on the other side of Oborski and the suspect or leave, to which Buehler replied they were leaving when Johnson arrested both Buehler and Dickerson.

“We need to ask ourselves if there is a better way to form our communities, to love our neighbors, and to care for the most vulnerable and suffering among us. When we are positive that those in power are accountable to The People, only then can we call them public servants,” said Sarah Dickerson in a statement reflecting upon her arrest. “The right to film the police is the least of what we could and should be asking for. There will never be justice on scene or in the media again if we are not free to document and film those in power and to hold them accountable. What we are doing in the Peaceful Streets Project has intersectional implications, all of which rely on our First Amendment rights to free speech and to freedom of the press.  How our court cases play out will affect free speech and free press rights for all.”

Following Buehler’s second arrest, his attorney Joe James Sawyer called that arrest retaliation for his outspoken activism, a “deliberate action and part of a calculated effort to protect the officer who arrested him New Year’s Day”—Officer Oborski, who was also present at the third arrest.

The Austin Police Accountability Coalition has been calling on APD to implement a responsible and constitutional videorecording policy, modeled on Washington D.C.’s concise policy which notes that asking questions about the appropriate place to witness the stop–as Buehler was doing–is not a justification for arrest, in accordance with Supreme Court ruling. The D.C. policy provides that officers “are reminded that there is no justification for ordering a person to stop . . . unless the member reasonably suspects that a person has committed, is committing, or is about to commit any crime.”

“APD is on the losing end of the wrong fight,” said Sawyer. “This is the beginning of a real war, and it’s one they are going to lose. The Supreme Court of the United States has spoken to this . . . the people have a right to watch.”