New police policy upholds First AmendmentPublished 9:51pm Thursday, September 13, 2012
The Suffolk Police Department has a new policy ensuring officers respect citizens’ First Amendment rights. The policy is in response to an incident involving a hog truck accident and a People for the Ethical Treatment of Animals employee last year.
Kent Stein, 25 at the time, was summonsed for crossing an established police line at the scene of the Oct. 25 wreck on Godwin Boulevard. But the video he was taking of the aftermath showed that “the officers just wanted him to stop videoing,” said attorney Fred Taylor, who represented Stein.
The Commonwealth’s Attorney’s office ended up not prosecuting the charge after Stein wrote a letter to the arresting officer apologizing if his conduct during the incident appeared to be disrespectful.
“It wasn’t an admission of guilt, but he wanted to clear up what his position was and why he acted the way he did,” Taylor said. “My client felt like he was getting three different stories on what he could or could not do. In my opinion, he was very polite up to the point he was getting mixed signals. He certainly stood by that he had a right to be out there.”
According to his letter, Stein was standing in an area where members of the media and other citizens were allowed.
Taylor said the video shows that police wanted him to stop videoing, because the owners of the hog truck, Murphy-Brown, didn’t want him there.
“It’s not surprising that company doesn’t want PETA looking over their shoulder when there’s an accident of this nature, especially one like this where they had to kill a number of the pigs as part of their cleanup,” Taylor said. “The officers basically took their lead from this private company.”
Police Chief Thomas Bennett said he received a letter from a lawyer representing PETA alleging the situation wasn’t handled correctly. He began to look into the matter and discovered there wasn’t a policy on allowing citizens to videotape officers.
“It’s not as simple as it always seems,” Bennett said, explaining why the existence of the First Amendment wouldn’t suffice. “People do not, by the First Amendment, have the right to do whatever they want. We are obligated to protect people, and that protection overrides their right to videotape. If there’s a dangerous situation, we’re not going to let that person wander in and videotape.”
The new Suffolk policy allows anyone to record police officers in the public discharge of their duties. It includes any area where the individual has a right to be present, including public property, an individual’s home or business, or other private property where the person has a right to be present.
Police officers cannot search or seize a recording device without probable cause to believe critical evidence of a felony crime is contained on it, according to the new policy. Supervisory approval must be granted, and seizure can only occur after officers have unsuccessfully attempted to get the consent of the person in possession of the device.
Officers are also prohibited from intentionally blocking the camera or threatening or intimidating people recording police activities.
Likewise, people recording the police are prohibited from doing so if it jeopardizes anyone’s safety, if the person is violating the law or inciting others to violate the law, the policy states.
Police departments and courts across the nation are grappling with the issue. In May, an appeals court ruled unconstitutional an Illinois wiretapping statute that made it a Class 1 felony to take an audio recording of law enforcement officers conducting their duties. Video recordings were OK, but could not have sound attached.
Also in May, the U.S. Department of Justice issued a letter in response to a lawsuit against the Baltimore, Md., police department. The letter affirms that numerous pieces of case law have upheld the individual’s right to record police and provides guidance on law enforcement policies, much of which appears to be the basis for Suffolk’s new policy.
Taylor, the attorney, said he believes the new policy clears up the issues that landed his client in court.
“Is it an improvement? Yes,” he said. “But should we even be at this point? No. I think the officers should have already known individual citizens have First Amendment rights.
“At the end of the day, there’s now a couple officers that better understand what to allow a citizen to do at a scene.”