Attitude is Not Everything
I know some of you are thinking, “Go ahead, videotape
me, I have nothing to hide, I conduct my business in a
very professional manner and welcome anyone to videotape my actions.” That is the right attitude, philosophy,
and mindset to have.
But we are not machines, we are human, and sometimes our emotions get the better of us. I’m sure every
one of us has reacted to a situation or said something to
a person that we are glad was not caught on video.
Sometimes we overreact when we see someone
videotaping our call or traffic stop. Depending on the
situation, some officers may approach the person and
demand that he or she surrender the cell phone or
camera. If that doesn’t work, some officers will grab the
cell phone or camera out of the person’s hand, which
typically leads to a physical altercation and the arrest
of the individual.
Now I’m not a lawyer, so check with your city attorney, but if I’m not mistaken a person is within their legal
rights to videotape you as long as they are a reasonable
distance from you and they don’t interfere with the officers’ duties or create a safety concern. So I recommend
that you simply act professional and don’t worry about it.
However, I would think that a legal arrest would be
reasonable if a person who is videotaping you does not
heed your warning to move away because he is interfering with, delaying, or obstructing the performance of
your duties. Just make sure you are specific and articulate
in your report all the facts needed to justify the arrest.
I would not recommend arresting a person who is a
reasonable distance from you and is not interfering with
you for the old “catch-all” section of illegal wiretapping
or eavesdropping. And don’t forget these two cases:
Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 E.D. Pa.
2005, and Smith v. City of Cumming, 212 F.3d 1332, 1333
11th Cir. Ga. 2000. The rulings in those cases state that
members of the public have a First Amendment right to
photograph and videotape law-enforcement officers in
the performance of their duties.
Is Perception Reality?
What about those times when you don’t realize you
were videotaped or you think you remember the incident
exactly as it happened? I just finished a civil litigation
where I represented a K- 9 handler and his department
in an accidental K- 9 bite during a real K- 9 search. Unbeknownst to the law-enforcement agency, the entire