Photographing Police: What Happens When the Police Think Your Phone Holds Evidence of a Crime?

The Washington, DC chief of police on Friday issued a new “General Order” to members of the police department on “Video Recording, Photographing, and Audio Recording of Metropolitan Police Department Members by the Public.” The order, which was part of the settlement of an ACLU lawsuit, includes some very interesting, groundbreaking provisions.

The order reminds police officers in Washington that:

• Still and video photography “of places, buildings, structures and events are common and lawful activities.”
• “A bystander has the right under the First Amendment to observe and record members [of the police force] in the public discharge of their duties.”
• “A bystander has the same right to take photographs or make records as a member of the media” as long as the bystander has a right to be where he or she is.

Of course, the order also makes clear that these protections only apply insofar as individuals are not impeding or interfering with the performance of police duties. The full text of the order is here—and for those interested in the right to record, worth a look.

One of the most interesting portions of the order has to do with those cases where police believe that a smartphone or other recording device may contain evidence of a crime. Generally police do not have the right to seize anyone’s camera or phone—though (as we explained in our Photographer’s “Know Your Rights” piece) the only exception might be when the police believe that a device contains evidence of a crime.

I spoke with my ACLU colleague Art Spitzer, who handled this case for the ACLU of the National Capital Area, and he told me how the case unfolded, and how that issue was addressed:

Our client is a young African-American guy named Jerome Vorus who is still a student but is also a budding photojournalist and has had a number of jobs at well-known media outlets around town—internships and summer jobs. And so he carries his video equipment with him everywhere he goes, and is especially interested in police and fire activity. He was walking in Georgetown one day in July 2010 when he saw some DC police officers conducting a traffic stop, and he stopped on the sidewalk and started taking still pictures. And when the police officers saw what he was doing, they came over and essentially told him he was not allowed to do that, and detained him for about half an hour on the scene. He very commendably stood up for his rights and told them that he had every right to do that. And eventually, they backed down, and gave him back his driver’s license which they had asked for, and let him go. And he actually did an audio recording of a lot of the transactions with the police, so we had a good record of what had happened.

We saw his blog about the incident and contacted him. We wrote to the police chief—a long letter describing what had happened and stating our view that what the officers had done was improper. We got no response to that. So eventually we filed a lawsuit, which got their attention. At that point, they asked us if we thought we could work out a settlement, and we said what Mr. Vorus really wants—he’d like some money for the fact that he was improperly detained—but mostly what he’s interested in and what we’re interested in is getting the police to understand how they should behave: when someone’s taking their picture, basically they should just smile.

It took us a long time, negotiating back and forth, and they agreed they would issue some guidance to the police department about this. It took a long time to come to agreement on the form, which is a General Order—the highest level of instruction in the police department. There are general orders on most basic subjects—how the police should do things, how they should conduct searches and seizures, how they should conduct investigations, what various parts of the law mean.

The part that actually took longest to negotiate was the question of what do you do if the police have reason to believe that someone’s camera has evidence that might be important, either in prosecuting a crime or in perhaps in showing police misconduct. We didn’t want the police to be just grabbing people’s cameras—which has certainly happened sometimes—and we also certainly didn’t want police to be browsing through people’s photographs and video to see what else might be there that’s really of no legitimate interest to the police.

And we eventually agreed. I think the most creative thing about this order—my idea was, why can’t the police department set up an email address so that someone can simply email the relevant photographs or video, so you’ll have it, but I get to keep my camera. So that’s been incorporated in the order.

There still may be some situations where the person refuses to do that, where the police believe they need the evidence. In that case they have to call a higher-ranking official to the scene, who would presumably first try to persuade the person to voluntarily hand over the photographs. But if the person won’t, then eventually that higher official can make a decision on whether it’s necessary to seize the camera.

If the camera is seized, the police are not allowed to look at what’s on it without going to a judge and getting a search warrant, which would give them permission only to look at the relevant photographs or video, and not to look at everything.

So we thought we protected that about as best we could, understanding that there surely may be some cases where the pictures are important evidence, and the government has a right to get that evidence.

As far as we know, this DC general order is the first time that anyone has tackled this issue, and it looks like Art and the DC police department reached a very good resolution of this issue, which sensibly preserves everyone’s interests. It also (in DC at least) helps further the long overdue and frustratingly intractable process of educating officers on the street about citizens’ right to record.

Jerome Vorus’s blog and photos from the incident are online, as is a Monday local television interview with him, and earlier local press coverage and a Reason TV interview.