August 5th, 2011

Miami Beach Police Issue Policy On Dealing With Photographers And Videographers 1

By Carlos Miller

miami_beach_police_officer_david_socarras.jpg

The Miami Beach Police Department issued impressive new guidelines to its officers for dealing with citizens who record them or may have recorded a crime.

The General Order went into effect August 1 – two months after Miami Beach police made national news by confiscating a man’s cell phone in the aftermath of a police shooting.

On Memorial Day morning, seconds after they shot and killed Raymond Herisse in a hail of bullets, police pointed a gun at Narces Benoit and demanded his cell phone.

Benoit claims they smashed it to the ground. Police insist they merely confiscated it.

Either way, he kept the memory card, which police ended up obtaining through a subpoena.

But by then, the video had been sold to CNN and uploaded to Youtube where it became viral.

You may have seen it first on PINAC.

Miami Beach police also confiscated a camera from a television journalist that same night – even though he was nowhere near the shooting -  but later returned it to him.

As a guy who has been arrested by Miami Beach police for taking photos during Memorial Day Weekend in 2009, I’ve been one of their fiercest critics.

But I have to give them credit for this policy. This could put them on the national forefront of police departments recognizing the rights of citizens to record freely.

Hopefully, this becomes standard for all police departments because it would give us all something to work with.

At the very least, it gives me something to print out and carry in my camera bag when I take pictures on Miami Beach.

The National Press Photography Association became instrumental in the creation of this policy when NPPA attorney Mickey Osterreicher sent them a letter after the Memorial Day incidents.

“I am pleased to see that MBPD has issued new guidelines dealing with photography,” he stated in an email to Photography is Not a Crime Friday night.

“The real challenge will be the ongoing education and training of its officers. It is also critical when officers violate these guidelines, that they be quickly and thoroughly investigated, and disciplined, if necessary.”

The policy confirms what many lawyers have already stated; that unless there are “exigent circumstances,” police must first obtain a subpoena before confiscating a camera.

The 5-page document also makes it clear that citizens have the right to record them as long as they are not interfering.

And it also stresses that police have no right to delete footage, which is what officers did to my photos after my 2009 arrest (I was able to recover the photos, which is why I’m able to present you with a picture of the arresting officer above).

A. The Department recognizes that the taking of photographs and/or videos by private citizens and media personnel is permitted within areas open to general public access and occupancy.  

B. A civilian may video record or photograph a police employee’s activities as long as they:

1. Remain at a reasonable distance;

2. Do not interfere with the employee’s duties and responsibilities;

3. Do not create a safety concern for the employee, person detained, or other persons.

*****

X. Prohibited Actions

A. Employees shall not order or participate in the destruction of portable video and photo recording devices.

B. Employees shall not order or participate in the erasure, deletion or destruction of digital, analog or film evidence.

C. Employees shall not impede a person’s right to photograph or video record an event unless that person’s actions:

1. Endanger the safety of the public, employees, or property;

2. Interfere with an active crime scene; or 

3. Create a reasonable safety concern.

But the policy mainly focuses on how officers should handle a situation in which a citizen may have recorded something of “evidentiary value” as is obviously the case in the aftermath of the Herisse shooting on Memorial Day.

The policy provides guidelines on how to deal with journalists and non-journalists who have recorded something of evidentiary value.

It stresses that police can only confiscate a camera under “exigent circumstances,” mainly if there is reason to believe the person intends to destroy the recording.

But unless that person is an accessory to the crime, which would already allow police to detain them, then I really don’t see that being an issue. Most people just want to run home and post it on Youtube.

For the most part, officers are instructed to ask the citizen for the device that may contain evidence. But even if the citizen willingly hands over the recording device, they must contact a supervisor before reviewing its contents.

In the case that a citizen refuses to allow consent, then that officer must decide whether there are exigent circumstances, which are described below.

1. The most common type of exigent circumstance is the imminent destruction of evidence.  Two requirements must be met for this exigency to exist:

a. Sworn employees must have probable cause to believe destructible evidence exists;

b. Sworn employees must have reason to believe the evidence might be destroyed if they delay taking action until a subpoena/search warrant is issued.

And even if the above criteria is met, officers would still need a subpoena before reviewing its contents, “unless there is reason to believe that the immediate search of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.”

The policy also requires officers to contact a supervisor whether or not the recording device was seized consensually or non-consensually, which would create a chain-of-command and place the responsibility on the supervisor’s shoulders.

It also reminds officers that they could be personally liable for seizing a camera from a journalist.

XI. Statutory Limitations and Liability

A. Pursuant to federal statute, 42 USC Section 2000aa-6, it is unlawful for a sworn officer or employee, in connection with an investigation or prosecution of a criminal offense, to search for or seize the work product of a media photographer/videographer, unless:

1. There is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being; or

2. There is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate. 

a. A search or seizure of the work product is prohibited when the offense is merely the withholding of such material.

B. Sworn officers and employees may be held personally liable in an action for civil damages for violation of federal statute, 42 USC Section 2000aa-6.

So here’s hoping Miami Beach police officer David Socarras, the officer pictured above in blue who arrested me in 2009 and attempted to intimidate me in 2010 for shooting video, is paying extra attention to this policy.


Send stories, tips and videos to Carlos Miller.

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