Police in Massachusetts were aggressively arresting a man believed to have been under the influence of drugs when they turned to another man recording the altercation, slamming him into a patrol car and confiscating his phone last month.
When they returned his phone a week later, there was no video.
Now Richard Porter said he is unsure if he had ever recorded in the first place.
Regardless, Framingham police had no right to accost him and take his phone just for attempting to document police activity.
According to the Metro West Daily News:
Porter said he witnessed the beating and went inside to get his cellphone. He had started recording the aftermath, when an officer grabbed him and “slammed” him into a cruiser. The officer Porter said was slamming Reyes’ head into the ground told the other officer to take his phone.
“They gave me a choice. They said we’ll either put you under arrest and we’ll get a warrant for the phone or you can just give us the phone,” said Porter. “After the fact, after they confiscated the phone, a sergeant came over and he’s swearing at me. He got in my face and said, ‘Instead of videotaping us, why didn’t you go over there and help him.’ ”
Porter said at one point, Reyes was on the ground, handcuffed and a female officer was sitting on his leg while another officer was kneeling on Reyes’ shoulders and neck.
“The cop on the shoulders and neck grabbed his head and banged his (Reyes’) face into the pavement,” said Porter. “I screamed over to the cop, ‘You don’t have to bang his head. You already have him subdued, leave him alone.’ He kept doing it. Granted, he (Reyes) was on acid, but to push his face into the ground and try to knock him out was way overboard.”
Porter said he went inside to get his phone and one officer came and took it away.
However, if Porter did try to “help” the officers in their abuse or apprehension, he could easily have been charged with interfering or obstructing, depending on the mood of the officers.
And according to Porter, they weren’t in the best of moods that day.
But Porter said he has since spoken to officers about the incident who assured they will look into the incident.
“The interview went really well,” said Porter. “I felt they already knew the officers. I felt like I got a fair shake and I feel like they’re taking it seriously.”
But the Bay State Examiner, which is based in Massachusetts and covers these cases extensively, is not so optimistic.
It remains to be seen how seriously this case will be taken and what, if any, any action will be taken against the police officers who took Porter’s phone. I’ve followed cases of Massachusetts police interfering with the right to record for years and have never heard of a police offcer facing criminal charges or serious disciplinary action even in cases where they arrested someone for recording.
When three Boston police officers arrested Simon Glik for recording them in 2007, the Boston Police Department actually stood behind the officers for years. It wasn’t until 2012 that the department finally admitted the officers were wrong. The disciplinary action the officers faced was light, however. A department spokesperson said at the time that the three officers faced “discipline ranging from an oral reprimand to suspension.”
In the George Thompson case, which The Bay State Examiner has been reporting extensively on, the Fall River police chief told WPRI that he supported an officer’s decision to arrest Thompson for recording. After the prosecutor dropped the charges, the police chief never publicly admitted that he was wrong and the officer who made the arrest was not punished at all. After a follow-up investigation determined that a Fall River police officer was responsible for wiping the data off Thompson’s phone while it was in police custody, the chief did not reveal the name of the person who was responsible and indicated that they would not face any disciplinary action, despite previously telling WPRI he would fire any police officer who was responsible for wiping the phone.
Hopefully the Framingham police will take this case more seriously than these other police department have.
But we won’t be holding our breath. Especially considering the United State Department of Justice made it clear in 2012 that police can only confiscate cameras under exigent circumstances, meaning they have a strong belief the evidence on that camera will be destroyed, yet police departments from around the country have not only failed to abide these guidelines, they have not been disciplined for violating the guidelines, which are backed up by case law:
Policies on individuals’ right to record and observe police should provide officers with clear guidance on the limited circumstances under which it may be permissible to seize recordings and recording devices. An officer’s response to an individual’s recording often implicates both the First and Fourth Amendment, so it’s particularly important that a general order is consistent with basic search and seizure principles. A general order should provide officers with guidance on how to lawfully seek an individual’s consent to review photographs or recordings and the types of circumstances that do—and do not—provide exigent circumstances to seize recording devices, the permissible length of such a seizure, and the prohibition against warrantless searches once a device has been seized. Moreover, this guidance must reflect the special protection afforded to First Amendment materials.
Policies should include language to ensure that consent is not coerced, implicitly or explicitly. See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (“[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.”). In assessing whether an individual’s consent to search was freely and voluntarily given, Courts may consider “the characteristics of the accused . . . as well as the conditions under which the consent to search was given (such as the officer’s conduct; the number of officers present; and the duration, location, and time of the encounter).” United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). BPD’s explanation of the process for obtaining consent includes clear guidelines regarding what steps an officer should take once an individual provides an officer with consent to review a recording. However, BPD’s general order should include language to ensure that consent is not coerced, implicitly or explicitly.
Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” United States v. Place, 462 U.S. 696, 701 (1983). Any such seizure must be a “temporary restraint where needed to preserve evidence until police c[an] obtain a warrant.” Illinois v. McArthur, 531 U.S. 326, 334 (2001). Seizures must be limited to a reasonable period of time. For example, in Illinois v. McArthur, the Supreme court upheld a police officer’s warrantless seizure of a premises, in part, because police had good reason to fear that evidence would be destroyed and the restraint only lasted for two hours – “no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant.” Id. at 332. Once seized, officers may not search the contents of the property without first obtaining the warrant. Place, 462 U.S. at 701 & n.3. In the context of the seizure of recording devices, this means that officers may not search for or review an individual’s recordings absent a warrant.
Police departments must also recognize that the seizure of a camera that may contain evidence of a crime is significantly different from the seizure of other evidence because such seizure implicates the First, as well as the Fourth, Amendment. The Supreme Court has afforded heightened protection to recordings containing material protected by the First Amendment. An individual’s recording may contain both footage of a crime relevant to a police investigation and evidence of police misconduct.The latter falls squarely within the protection of First Amendment. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”). The warrantless seizure of such material is a form of prior restraint, a long disfavored practice. Roaden v. Kentucky, 413 U.S. 496, 503 (1973) (when an officer “br[ings] to an abrupt halt an orderly and presumptively legitimate distribution or exhibition” of material protected by the First Amendment, such action is “plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.”). See also Rossignol v. Voorhaar, 316 F.3d 516, 522 (4th Cir. 2003) (Where sheriff’s deputies suppressed newspapers critical of the sheriff “before the critical commentary ever reached the eyes of readers, their conduct met the classic definition of a prior restraint.”). An officer’s warrantless seizure of an individual’s recording of police activity is no different. See Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D. Penn 2005) (By restraining an individual from “publicizing or publishing what he has filmed,” officer’s “conduct clearly amounts to an unlawful prior restraint upon  protected speech.”); see Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634, 637 (D.Minn. 1972) (“it is clear to this court that the seizure and holding of the camera and undeveloped film was an unlawful ‘prior restraint’ whether or not the film was ever reviewed.”).
The warrantless seizure of material protected by the First Amendment “calls for a higher hurdle in the evaluation of reasonableness” under the Fourth Amendment. Roaden v. Kentucky, 413 U.S. 496, 504 (1973). Police departments should limit the circumstances under which cameras and recording devices can be seized and the length of the permissible seizure. BPD’s general order does not convey that the warrantless seizure of recording material is different than the warrantless seizure of many other types of evidence, in that it implicates the First, as well as the Fourth, Amendment. General Order J-16 should make it clear to officers that, in the ordinary course of events, there will not be facts justifying the seizure of cameras or recording devices. Moreover, General Order J-16 does not define “temporary” seizure. BPD should clarify how long and under what circumstances an officer may seize a recording device, even temporarily, and how the recordings on the device must be maintained after seizure. A policy permitting officers, with supervisory approval, to seize a film for no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant if that film contains critical evidence of a felony crime would diminish the likelihood of constitutional violations.