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Can the Cops Cuff You For Filming an Arrest?

Image: People stand in front of a crowd near the scene of a shooting outside the Empire State Building on Aug. 24, 2012 in New York City.

People stand in front of a crowd near the scene of a shooting outside the Empire State Building on Aug. 24, 2012 in New York City. Mario Tama / Getty Images file

A number of recent arrests have highlighted the role citizen smartphones can play in documenting police action, and while courts have sided with camera-wielding observers in the past, civilians who tape police making a bust may still face their own arrest, legal experts and activists say.

Several court rulings have upheld a civilian’s First Amendment rights to videotape cops performing their jobs in public places, legal experts say.

Those same federal courts, however, also found “this federal constitutional right is not absolute, particularly when it comes to filming traffic stops,” said Professor Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida. “The precise contours of the right have yet to be fully fleshed out.”

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One recent arrest video that has invoked public anger is of New York City police officers who, on July 17, appear to have applied a hold to a suspect’s neck in the course of an arrest. The man, 43-year-old Eric Garner, later died. The altercation between Garner and officers on Staten Island occurred after police suspected Garner of selling untaxed cigarettes. On the phone-captured video, Garner, an asthmatic who weighed an estimated 350 to 400 pounds, can be heard telling restraining officers, “I can’t breathe."

On July 1, cellphone footage from a passerby showed a California Highway Patrol officer allegedly holding a 51-year-old woman on the ground near a Santa Monica freeway and repeatedly striking her.

How and when a person takes video of police officers in action may play a role in whether or not the camera-holder could him or herself be arrested.

In May, the U.S. Court of Appeals for the First Circuit wrote that, “reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them.” Those factors could include officer and suspect safety, or the ability of law enforcement personnel to control chaos at the scene.

“The weasel word here, of course, is ‘reasonable,’ and courts are likely to give deference to the judgment of law enforcement personnel on that issue,” Calvert said.

For practical purposes, an old real-estate mantra applies here: location, location, location.

“The inherent dangerousness of the situation comes into play,” Calvert said. “That might include how many other people hostile to an officer are nearby and how many suspects the officer is dealing with. The real line here, then, is between filming and interfering.”

Image: Advocates and family members are demanding answers following the death of a man who had a heart attack and died in police custody after officers put him in a chokehold
Advocates and family members are demanding answers following the death of a man who had a heart attack and died in police custody after officers put him in a chokehold - a tactic prohibited by NYPD policy. Daily News

This debate is, of course, as old as the Rodney King case –- the 1991 arrest and beating of King by Los Angeles police following a high-speed chase. A balcony-perched witness, George Holliday, videotaped as officers hurled blows against King’s body.

According to CHP, citizens are permitted to film an officer in the course of conducting his or her duties “as long as you are not interfering with the tasks the officer is performing,” said John “Mike” Harris, a CHP spokesman and officer. “You must adhere to the officers' commands if you are ordered to move back to a safe location or outside of the investigative scene.”

New York City police officials did not respond to an email from NBC News asking whether citizens in that jurisdiction are legally allowed to film arrests.

James Pasco, executive director of the Fraternal Order of Police, said through a receptionist that he is “not doing interviews on that” subject.

Image: Marlene Pinnock, 51, was punched 10-15 times by a California Highway Patrol Officer on July 1.
Marlene Pinnock, 51, was punched 10-15 times by a California Highway Patrol Officer on July 1. via NBC LA

And at the International Association of Chiefs of Police (IACP), based in Alexandria, Virginia, manager Phil Lynn declined an interview but did email to NBC News a February IACP policy paper titled “Recording Police Activity.”

The document acknowledges that videotaping on-duty police work is “a form of speech” covered by the First Amendment. But the paper lists five examples of police “interference” that individuals “who wish to record police must observe.” Those are:

  • Keeping a “reasonable distance” from officers.
  • Not “repeatedly engaging officers with questions or distractions that unduly hinder police activities to protect life and safety, or the integrity of a crime scene.”
  • Not positioning "themselves in a manner that would either passively or actively hinder, impede” officers, first responders or traffic.
  • Not filming “sensitive police operations and tactical situations if they could reasonably jeopardize the safety of officers or third parties,” for example, a police response to a school shooting.
  • Not violating “the privacy of victims and witnesses.”

With those rules in place, anyone filming officers -– even in public places –- is at risk for arrest, “rightly or wrongly depending on the facts, on charges ranging from disorderly conduct and obstructing with an arrest to eavesdropping and the failure to obey an order to stop filming,” said Calvert, the First Amendment expert.

“The reason the right to record is so important is the everyday citizens now can play the role of public watchdog on potential government abuses of power,” Calvert said. “Every citizen today with a smartphone now has the power to be his or her own George Holliday.”