Florida City's Police Guidance Says Citizen Recordings Likely Legal; Tries To Find Ways To Make Them Criminal Acts

from the prioritize-shutting-down-recordings-over-successful-undercover-investigations dept

Mon, Dec 21st 2015 3:55pm — Tim Cushing

Photography Is Not A Crime (PINAC) has obtained the Lakeland (FL) Police Department's internal guidance on citizen recordings. What should be a simple, succinct document stating that photography and recordings are presumed to be protected by the First Amendment, the guidance works extra hard to imagine scenarios where it might be possible to shut down recordings or seize devices.

The undated document makes it impossible to determine whether this was written before or after LPD attorney Roger Mallory lost some of his legal guidance privileges as a result of his highly-questionable handling of public records requests.

This is the very same attorney who was previously demoted from his position at the Lakeland police department after losing a public records lawsuit which cost his city’s taxpayers $160,000, after which plaintiff Joel Chandler called Mallory’s legal strategy, “doubling down on stupid.”

Whatever the case, it's Mallory's name on the document. After a brief nod towards citizens' rights, Mallory starts suggesting ways the Lakeland PD can violate them -- starting with the horribly stupid suggestion that undercover cops should blow their cover to confront photographers.

A couple of examples of those circumstances in which video-recording/photographing of you might constitute the crime of Resisting might be:

1. You are conducting surveillance from a location under circumstances in which we have a clear and reasonable intention and investigative need to remain secret and the videorecording/photographing can be reasonably expected to include your chosen location such that a viewer of that video/photograph could identify that location, and

2. You are acting in an undercover capacity, you are actively conducting law enforcement business (not, e.g., on lunch break, etc.), i.e., you are actually performing some legal duty (e.g., conducting an investigation), and the video-recording/photographing would somehow reveal your identity as a police officer, thereby endangering you and/or denying you the opportunity to continue to perform your legal duty.

So, rather than ignore the recording and maintain cover, officers should reveal themselves, thus clearing up any questions as to whether or not they were participating in an undercover investigation. Presumably, the PD's attorney feels the crime of "resisting" would justify seizure of recording devices and the deletion of captured images/video. The guidance doesn't detail how this would play out in court, but it likely doesn't matter. If the footage is deleted, the undercover operation sabotaged by officers making "resisting arrest" arrests would still be intact and taxpayers will foot the bill for any lawsuits that follow.

The guidance also attempts to twist the state's wiretapping statute to cover audio recordings of officers performing their public duties. Mallory says citizens must either inform officers (verbally or in writing) that they are recording or prominently display the recording device. If neither of these two things happen and the officer has a "reasonable" basis to believe they aren't being recorded, they may be able to charge a citizen with a felony.

If, however, you had an objectively reasonable basis upon which, it was your expectation, your oral communications/voice were/was not being recorded, and the person recording intended to record, the subject commits the felony crime of wiretapping (see Section 934.04(1) and (4), F.S.).

Mallory does caution officers that courts aren't very tolerant of officers who abuse wiretapping statutes to shut down recordings or seize devices.

[T]he determination by a court of the presence or absence of objective reasonableness will be made, in part, on the basis of the modern reality of the abundance of video and audio recording devices in our environment. We would be wise to remember that the courts will not likely accept your expectation of non-recording if that expectation is tainted by hypersensitivity or something the courts might construe to be an unusually high degree of paranoia.

It also warns officers that abusing "resisting arrest" charges or otherwise claiming recordings were somehow "obstructing" them in their duties will similarly be viewed dimly by presiding judges.

The case law does not support an officer's position that a citizen who appeared to be video and/or audio-recording the officer/scene caused the officer to be distracted, and that mere distraction rose to the level of actual obstruction or opposition of the officer in their performance or attempted performance of their legal duty (i.e., the commission of the crime of Resisting). [...] Absent additional facts beyond mere distraction, a court will conclude the crime of Resisting did not occur and the officer was being unduly hypersensitive, thin-skinned, and perhaps displayed conduct that was less than that of a law enforcement professional.

Mallory arrives at this sensible conclusion…

Going "hands on" and/or seizing a video-recording device requires a lawful basis; examples of which are provided above. An officer's subjective expectation that they will not be videorecorded while conducting their enforcement business is not sufficient to justify this officer conduct.

...before wrapping the guidance up by suggesting the state's wiretap laws might provide useful loopholes. After all, most devices that record video also record audio.

Audio-recording, however, is somewhat different. If the person whose oral communications are being recorded has a reasonable expectation their oral communications are not subject to interception/recording, then the intentional audio-recording of them by a citizen constitutes the felony crime of wiretapping. To the very short list of legal bases for going "hands on" and seizing video-recording devices offered above, if the recording is audio-recording, we can add the legal basis to arrest and seize the recording device as evidence of the crime of wiretapping.

Finally, in the ballsiest bit of sour-graping ever included in police legal guidance, Mallory bitterly points out that citizens have access to a "good faith exception" of their own:

Be aware, however, that in charging the crime of wiretapping, prosecution and conviction is not guaranteed as the law of wiretapping includes a well-hidden, but complete criminal defense of "good faith reliance" on a "good faith determination" that the criminal law of wiretapping did not apply . (See Section 934.1 0(2)(c), F.S. , misleadingly entitled only "Civil Remedies.'')

Not so great when citizens have access to the same defense that cops so often use to excuse their Constitutional violations, is it? Hopefully, any bogus wiretapping charges leveled against citizen recorders will be dismissed by courts cognizant of the fact that they extend this courtesy to law enforcement far too often.

291972706-LPDBulletin14-0193 (PDF)291972706-LPDBulletin14-0193 (Text)

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Filed Under: florida, lakeland, photography, police, public, videotaping police

19 Comments

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That Anonymous Coward (profile), 21 Dec 2015 @ 4:18pm

"being unduly hypersensitive, thin-skinned, and perhaps displayed conduct that was less than that of a law enforcement professional"

A professional doing a professional job should never object to others being able to see what was happening.
A professional violating the rights of others always objects to the chance they might be held responsible for their actions.
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Anonymous Coward, 21 Dec 2015 @ 4:30pm

Re:
Perhaps the police believe that their brutality techniques qualify as trade secrets.
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sorrykb (profile), 21 Dec 2015 @ 4:58pm

Two things
A couple of examples of those circumstances in which video-recording/photographing of you might constitute the crime of Resisting might be: ...
2. You are acting in an undercover capacity, you are actively conducting law enforcement business (not, e.g., on lunch break, etc.), i.e., you are actually performing some legal duty (e.g., conducting an investigation), and the video-recording/photographing would somehow reveal your identity as a police officer

Thus demonstrating that they prioritize stopping the public from recording them over doing their actual jobs.

We would be wise to remember that the courts will not likely accept your expectation of non-recording if that expectation is tainted by hypersensitivity or something the courts might construe to be an unusually high degree of paranoia.

So... a high degree of paranoia is acceptable so long as it's not unusually high? What's the standard we're using?
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Whoever, 21 Dec 2015 @ 5:01pm

Doublethink in action
Audio-recording, however, is somewhat different. If the person whose oral communications are being recorded has a reasonable expectation their oral communications are not subject to interception/recording, then the intentional audio-recording of them by a citizen constitutes the felony crime of wiretapping.

If the officer thought that his communications were NOT being recorded, then what's the basis for an arrest?

Perhaps the advice should say something like, "... reasonable expectation their oral communications are not subject to interception/recording and the officer later discovers that a recording was being made ..."
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Anonymous Coward, 21 Dec 2015 @ 6:37pm

Re: Two things
I'm kinda thrown by the bit about the recording of undercover officers that might 'reveal their identity'. If the recording is taking place in a public space (like recording someone going into the PD building), where do cops get these special privacy rights?

LEAs are the ones that keep telling us that we have no expectation of privacy in public, and even our weirdly authoritarian courts would have a hard time saying that LEOs are granted civil rights beyond those possessed by the rest of us norms. They do get all sorts of weird perks, but it seems like this would be veering into 14th Amendment territory. Or maybe I'm just being overly optimistic... yeah, probably that.
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Anonymous Coward, 21 Dec 2015 @ 7:30pm

Just lean on the city council to ignore any reports of cops breaking the law, or force them to pass a bylaw making it illegal.
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TechDescartes (profile), 21 Dec 2015 @ 7:59pm

Page 4
Page 4 undoes all of the hard work of the first three pages by telling the officers to expect to be recorded:
Members of the general public seem to possess devices that audio, video, and audio/video-record in greater and greater numbers such that their presence in our law enforcement environment should be expected. With YouTube©, Twitter©, other social media forms, any one of us can reasonably expect that to be present in society is to be subject to video-recording and posting "for the world to see." I foresee little or no diversion from this progression from a distant, historical. objectively reasonable sense of privacy, to an objectively reasonable sense that in whatever publicly observable conduct one engages, currently, one can reasonably expect to be video-recorded and that video-recording uploaded to, and made available to the world via the miracle of"social media" and/or electronic, commercial media.
With that expectation, there can be no violation:
“Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.
Fla. Stat. Ann. § 934.02. If their boss told them to expect to be recorded, telling the judge they didn't expect to be recorded is not a good strategy.

P.S. They keep using that ©. I do not think it means what they think it means.
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Glenn, 21 Dec 2015 @ 9:37pm

Dear Good Cops,

Bad cops are making you look bad. And you doing nothing about their law-breaking and rights-violating just makes you look as bad as them, if not worse. Do your job while you still have one.

Sincerely,

We The People
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Mr Big Content, 21 Dec 2015 @ 9:44pm

People Should Not Be Able To Hide Behind So-Called "Legality"
Their should be a Law to let the cops catch these reckless people who do this so-called "legal" filming and violating there privacy while their trying to go about there important business. They should not get off scot free just because their not breaking the law.

In fact, circumventing the law in this way should make the crime WORSE. Its like legal terrorism and harrasment of innocent law-enforcement Personnel.
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Anonymous Coward, 22 Dec 2015 @ 12:55am

I'm with Tim Cushing. Disband all police and let's have my special recipe buckshot arrange things!
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The writer, 22 Dec 2015 @ 5:13am

Re: Doublethink in action
Police have no expectation of privacy while carrying out their duties in public
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David, 22 Dec 2015 @ 7:00am

Re:
A professional doing a professional job should never object to others being able to see what was happening.

I disagree. There are a lot of jobs where the details are much uglier than the results. Professionals have a right to privacy just as much as anybody else.

Also: when a police officer is trying to piece the available evidence for a crime series together, that is a process that should not happen under the scrutiny of the involved criminals.

But this expectation of privacy does not extend itself to the acts of police officers in public.
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Anonymous Coward, 22 Dec 2015 @ 7:10am

A professional public servant doing a professional job should never object to others being able to see what was happening.

because we pay their asses , and should be entitled to see our employees work and critique it .
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Anonymous Coward, 22 Dec 2015 @ 7:16am

Re: People Should Not Be Able To Hide Behind So-Called "Legality"
Your literally killing me with you're 'they're' their. You should really reign in yore 'there' jokes. Something something, Yor, Hunter from the Future.
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sorrykb (profile), 22 Dec 2015 @ 8:18am

Re: Re: People Should Not Be Able To Hide Behind So-Called "Legality"
I could care less about your concerns about grammer. Irregardless, he has the write to free speech.
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GEMont (profile), 22 Dec 2015 @ 11:48am

One law for you - a differnet law for us.
I read that as Mallory stating to his cops, that since you're already breaking the law - if you're afraid of being video-taped in the act - here are a selection of other laws that other cops have successfully bent, twisted or broken to get away with destroying the video evidence of their criminal activity, along with some possible pitfalls of their use.

The whole thing is like a pep-rally at a criminal convention, on how to "game the system".

The man is actually giving instructions on methods of breaking the law. His actions should constitute a crime and probably would in a country not under fascist siege.

---
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GEMont (profile), 22 Dec 2015 @ 11:58am

Re:
"We're very sorry, but both of the Good Cops were suspended last week for not assisting in the gang-mugging, raping and murder of a suspected druggie, terrorist child molester.

Sincerely,

We, the People that actually count."

---
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Eric, 23 Dec 2015 @ 3:50am

Re: People Should Not Be Able To Hide Behind So-Called "Legality"
Perhaps English is not your native language or you were being funny supporting an ignorant viewpoint with ignorant writing. At any rate your slaughtering of the words there,their and they're is commendable, congratulations.
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kcgunesq (profile), 25 Dec 2015 @ 1:03pm

Re: Re:
To which *profession" do police offers belong?

Sorry, can't resist asking as it is a peeve of mine.
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