Oversight Board Finds NYPD Officers Still Violating Citizens' Right To Film Police

from the NYPD:-any-and-all-cameras-should-be-aimed-at-'civilians' dept

Wed, Jul 19th 2017 3:31pm — Tim Cushing

The New York Civilian Complaint Review Board has just released a report [PDF] indicating NYPD officers are slow learners when it comes to recognizing citizens' right to record police officers. It's not that these officers have never been told. They have. The NYPD's "Finest Order" was handed down in 2014, telling officers citizens had a First Amendment right to film police. It's a response to a 2012 order by the Washington DC PD and a First Amendment lawsuit filed that year. It followed this up with internal policy changes two years later. And yet, problems persist.

In the three-year period from January 1, 2014 through December 31, 2016, the CCRB closed 257 complaints in which civilians reported that officers had interfered with their ability to record police activity. This police interference included, but was not limited to, officers instructing civilians to stop recording, searching civilians‘ phones for recordings of activity, deleting such footage, and damaging recording devices.

In fact, those with the most time on the job seem to have the greatest difficulty following instructions and policy changes.

Eighty-four percent of the officers named in interference-related allegations (180 subject officers) had more than two years on the force at the time the alleged incidents occurred. Of those, 53 percent (113 subject officers) had between three and 10 years on the force when they were alleged to have interfered with civilian recordings and the remaining 31 percent (67 subject officers) had more than 10 years on the force.

The NYPD "Finest Message" on recording distinctly notes what officers aren't supposed to do when encountering a citizen photographer:

Recognizing the affirmative right to record police action, UNDER NO CIRCUMSTANCES should a Member of the Service:

Threaten, intimidate, or otherwise discourage an observer from recording the police officer’s activities, assuming the observer is at a safe distance;

Intentionally block or obstruct cameras or other recording devices when there is no legitimate law enforcement reason to do so; or

Delete any pictures or videos from the observer’s camera, or order observer to delete such pictures or recordings.

But these orders were violated repeatedly. The most common excuse for violations was the officer didn't remember doing it or denied the violation had occurred.

NYPD officers who violate citizens' First Amendment rights do this in several ways. Intimidation is one tactic used to shut down recordings:

The CCRB also received multiple complaints of police officers pointing flashlights at civilians‘ recording devices to impede their ability to record. In one such case, the CCRB substantiated an interference allegation by a civilian and his wife who were walking down the street when they observed a police officer making an arrest. The civilian began taking photos of the arrest on his iPad and was instructed by the officer to stop taking photographs and to step back. The civilian stepped back but maintained that he had a First Amendment right to photograph the arrest. The officer then shone a flashlight at the iPad. The CCRB substantiated an interference allegation against the officer based on photographic evidence and the consistent testimony of the civilian witnesses.

In a similar 2015 case, an officer stopped a group of individuals suspected of fighting and gun possession. When a third party civilian began to record the stop, an officer turned and pointed a flashlight towards the civilian‘s camera for nearly three and a half minutes. In that case, the interfering officer never issued any commands toward the recording civilian and the Board substantiated the interference allegation.

[...]

Other forms of intimidation were more severe. In a 2015 case, a civilian called 911 after he was assaulted at a bar. Officers responded and the civilian became angry when officers could not find the assailant. After a heated verbal exchange, the responding officers told the civilian that he would be arrested if he did not leave the location. The officers then went back to their marked police vehicle to prepare their complaint paperwork, at which time the civilian stood in front of the vehicle and attempted to take a photograph of the officers‘ license plate. At that point, the officer in the driver‘s seat drove the vehicle toward the civilian and stopped within inches of his body before driving away. Finding that the video evidence proved that the officer intentionally drove the police vehicle towards the civilian in a threatening manner and with the intention of preventing him from taking a photo of the license plate, the CCRB substantiated allegations against the officer for interfering with the civilian‘s recording, and for threatening him with the use of physical force.

NYPD officers also illegally seized and searched cellphones while being filmed by citizens. Multiple confirmed allegations show officers took phones with the intent of accessing, if not deleting, recorded footage. The CCRB notes it's very difficult to substantiate claims of deleted footage thanks to the inherent nature of the violation. It's tough to prove a recording existed prior to an alleged deletion when recordings that survive officers' deletion attempts usually absolves them of attempted deletion allegations.

But searches/seizures with the intent of deleting recordings is actually the more subtle of the NYPD's anti-photography tactics.

Substantiated instances of damage or destruction of recording devices can be proven by video evidence from sources other than the recording civilian. In one incident, surveillance cameras captured officers physically grabbing a civilian‘s body as he began recording their stop and questioning of a woman on a sidewalk. After officers arrested the civilian, placed him in their patrol car, and began driving away, surveillance video captured one officer throwing his cell phone out of the car window. The phone landed on the sidewalk. The civilian was charged with Obstructing Governmental Administration, Disorderly Conduct and Resisting Arrest, but these charges were all eventually dismissed.

Some cops do this repeatedly:

In a 2014 incident, the officer‘s interference and destruction of a cell phone occurred simultaneously. The complainant sat in his car with two friends when officers approached him, told him the car smelled like marijuana, and asked him if he had been smoking it. When the complainant said no, officers removed the occupants from the car, frisked and searched them all, and then allowed them to return to the car. When an officer walked to the vehicle to return the complainant‘s identification, the complainant alleged that the officer saw his phone resting on his arm, assumed he was recording, grabbed his phone from his hand, and threw the phone to the ground, stomping on it. The officer then forcefully arrested the complainant. The CCRB found that the officer lacked credibility given three prior complaints of the same officer destroying civilian cell phones, and substantiated misconduct.

But the worse thing some NYPD officers do is shut down recordings with bullshit arrests, because it's always best to follow up a First Amendment violation with a severe curtailment of literal freedom:

In a 2014 incident, for example, a civilian began audio-recording an officer‘s stop of the civilian‘s friends. The officer grabbed the audio-recorder from the civilian‘s shirt pocket, then issued him a summons for possession of a box cutter under a section of the New York City Administrative Code that prohibits minors from possessing box cutters. The complainant was over 50 years old and clearly could not be mistaken for a minor and the CCRB substantiated the improper issuance of a summons.

The CCRB recommends more training, which is really all it can do. Officers have had close to three years to adjust to the constraints of the 2014 Finest Message, but it appears several officers still make up their own rules during encounters with citizen photographers. It's unrealistic to expect the number of violations to hit zero, but some disciplinary changes need to be made if these policies are going to have much effect on officer behavior. Otherwise, the same officers will keep deploying the same tactics and hoping citizens don't complain or the CCRB doesn't have enough to work with to substantiate the allegations.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: filming police, freedom of expression, new york, nypd

28 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 19 Jul 2017 @ 2:29pm

Define 'dicipline'
It's unrealistic to expect the number of violations to hit zero, but some disciplinary changes need to be made if these policies are going to have much effect on officer behavior.

If by that you mean 'heavily fine all first time violators, along with mandatory 'yes the public can record you, get over it' classes' and 'fire all repeat violators' then yes, this could be cleared up nicely with 'disciplinary changes'. The only way they'll stop is if they personally face penalties for their actions, until then they'll feel free to make up rules and laws on the spot to suit their own whims.
[ link to this | view in thread ]
TechDescartes (profile), 19 Jul 2017 @ 3:04pm

TechDirt-Speak

It's unrealistic to expect the number of violations to hit zero...

Translation: "we hope that there are just enough cases that we still have something to write about"

It's like those weather reporters that get a little too excited when a tornado or hurricane is about to cause serious devastation: "Mike, we're live here at the scene of this horrific constitutional violation. The situation is escalating and we're excited—I mean, concerned—that this could turn into a massive dumpster fire. There is a high likelihood that someone will lose their civil liberties at any moment. Back to you in the studio." "Thanks, Tim. More at 11:00."
[ link to this | view in thread ]
Discuss It (profile), 19 Jul 2017 @ 3:38pm

Only in Law Enforcement
Odd this keeps happening with the people that are supposed to enforce the law. I know that when my employer tells me a policy and I violate it, the least I can expect is time off without pay at best, and termination is more likely.

Odd that a policeman can't grasp the concept. Perhaps they are too stupid to be allowed to carry a weapon. Those things are dangerious and if they can't understand "People can record you" then I would assume they are too stupid to understand the concept of fire lines, back stops, and "What is behind what you shoot at?".
[ link to this | view in thread ]
Stephen T. Stone (profile), 19 Jul 2017 @ 4:05pm

Re: TechDirt-Speak
Another, more accurate translation: “It is impossible, given human nature, to expect that all people will obey the rules 100% of the time.”

It’s like people might break a rule (read: law) in the heat of a given moment based on any number of factors that they either can or cannot control.
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2017 @ 4:09pm

Aren't people who ignore the law like this known as anarchists?
[ link to this | view in thread ]
serpico, 19 Jul 2017 @ 4:17pm

rot is at top
This NYPD criminal behavior continues long tern BECAUSE the NYC police & civilian leadership do not wish to stop it. There's already plenty of NYPD supervisors with ample disciplinary tools to control this bad behavior by street cops.

But cop-culture/solidarity & a powerful police labor union... counter any possible crackdown on these cop crimes. NYPD leadership and the Mayor's Office will not rock-the-boat -- they value peace and good morale in police ranks much more highly than preventing abuse of a few citizens.

Top NYC and NYPD leadership is the problem; focusing solely & very timidly on the (unnamed) individual bad street cops will never solve this problem. The NYC government big shots must face some strong 'personal' consequences... for them to change their current cost/benefit calculation.
[ link to this | view in thread ]
orbitalinsertion (profile), 19 Jul 2017 @ 4:27pm

The CCRB recommends more training

Perhaps beatings or trashing their personal stuff, since they seem to understand that sort of thing well.
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2017 @ 5:06pm

It's just ridiculous that these police officers arn't fired at teh very least, if not thrown in JAIL for trying to take someone else's freedom with made up bogus charges for doing something 100% perfectly legal. It's a constitutional right!!!!

Without Video, it's your word against a lying PIG which is what they are!!! Those that don't speak up when of their own does it, makes them just as guilty!!! Isn't that how it works. Say you're the get away driver for bank robbers who shot and killed someone. You're just sitting in the car waiting, Yet YOU are just as guilty of murder as the one that shot the person.

Is corrupt lying police and following the Blue line make you just as guilty and bad? Yes!!! It's the UNIONS that are making the problems so much worse. Any police officer goes and throws you phone and breaks it and abducts you with trumped up charged should themselves be thrown into jail at a minimum of 1 year with no early release or so called time served B.S. If they want to dish it, they should take it. This crap is why they are called PIGS.
[ link to this | view in thread ]
Canuck, 19 Jul 2017 @ 5:29pm

Re: TechDirt-Speak
TechDescartes, your "translation" is bullshit.
[ link to this | view in thread ]
AC2, 19 Jul 2017 @ 5:54pm

Immunity
IANAL, so I'm not at all clear on how an officer's personal immunity from lawsuits work. However, I was under the impression that, if they clearly should have known that what they were doing violating someone's civil rights, they could be held liable. Is that right? And if so, wouldn't all these directives be sufficient evidence that they should have known?

The point being that this might stop when some officer is forced to pay personally for their misdeeds.
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2017 @ 6:27pm

Re: Immunity

if they clearly should have known that what they were doing violating someone's civil rights, they could be held liable.

In theory.

In actual fact, the cops just killed a woman in Minnesota the other day. You probably read about it in the news:

When asked by media if Damond’s death and the prior police shootings of Jamar Clark and Philando Castile show a “trigger-happy” policing system, [Gov. Mark] Dayton responded: “I don’t think ‘trigger-happy’ is an appropriate term to apply to Minnesota law enforcement.

Ain't nothing legal slowing down these killer cops.
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2017 @ 6:54pm

Any normal person including a police officer (lol) understands that filming police is in their own interests ie they can prove how they were attacked first by a civilian or they can prove how the gun just fired a shot by itself (lol).

But maybe is not in their best interests, because maybe their best interests are intimidation of the population and "shoot first ask questions later" modus operandi, not actual protection of the people and crime PREVENTION.
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2017 @ 7:15pm

Re: Re: TechDirt-Speak
> on any number of factors that they either can or cannot control.

That ... covers the options rather well, don't you think?
[ link to this | view in thread ]
TechDescartes (profile), 19 Jul 2017 @ 8:19pm

Re: Re: TechDirt-Speak
And you lack any sense of humor.
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2017 @ 9:15pm

Re: Re: Re: TechDirt-Speak
Humor, like morals, is rarely part of the TD discuss unless its staff writing it
[ link to this | view in thread ]
Lawrence D’Oliveiro, 19 Jul 2017 @ 11:40pm

TechDescartes-Speak
“I troll, therefore I am.”
[ link to this | view in thread ]
David, 20 Jul 2017 @ 1:57am

Re: Only in Law Enforcement

then I would assume they are too stupid to understand the concept of fire lines, back stops, and "What is behind what you shoot at?".

Well, they are preselected for stupidity (application for the job is refused if you score too high on intelligence tests).

It would be already a big step forward if all cops understood the "what is what you shoot at?" concept.
[ link to this | view in thread ]
Anonymous Coward, 20 Jul 2017 @ 3:21am

Re: rot is at top
Not just the "top"...leaf, branch, and root. Executive to beat cop, all levels and unions collude in the criminality. Policing at all levels, federal, state, and local, has become officially sanctioned, organized crime with prosecutorial and judicial support of at least the nudge-wink-say-no-more variety if not open flag-waving pride.

Nobody CAN effectively watch the watchers under the current system. Well, okay - we CAN watch.
[ link to this | view in thread ]
David, 20 Jul 2017 @ 5:03am

Re:
You'll not find a lot of musicians ok with private recordings of concerts. Recordings form the narrative in the public perception, and on an average day your performance is average. Professional recordings take a number of takes until there is enough material for a permanent record available.

Police work has a tendency to be either non-news or turn out uglier than planned for.

So I find the impulse not wanting to get recorded doing it perfectly understandable.

But the law does not support acting on that impulse.
[ link to this | view in thread ]
ThaumaTechnician (profile), 20 Jul 2017 @ 5:29am

Re: Define 'dicipline'
One option is to have one of the daily briefings with the Sgt. Esterhaus character reading the law/opinion, and to videotape the proceedings and every person in attendance (just like the way that the NYPD likes to at any legal gathering where people express their First Amendment rights) PLUS have them sign a sheet acknowledging that they've listened to and understand what's been told to them - y'know, the kind of stuff retail clerks at convenience stores need to sign all the time.

THEN threaten them with personal liability.
[ link to this | view in thread ]
Oblate (profile), 20 Jul 2017 @ 6:28am

It's tough to prove a recording existed prior to an alleged deletion when recordings that survive officers' deletion attempts usually absolves them of attempted deletion allegations.

Is this trying to say that just because the officer failed in their attempt to delete a video, or that video can be recovered, that they can't be charged with trying to delete the video? Isn't that like claiming that I can't be given a speeding ticket because now I'm stopped on the side of the road?
[ link to this | view in thread ]
ThaumaTechnician (profile), 20 Jul 2017 @ 7:12am

Re:
In one of Richard Feynman's lectures he tells a joke about a driver who pulled over by a highway patrolman for speeding.
"Ma'am," the patrolman says, "you were stopped because you were found to be driving at 75 miles per hour.
- That's impossible," replied the blonde driving the car, "I've only been driving for 15 minutes!"
[ link to this | view in thread ]
Wolfie0827 (profile), 20 Jul 2017 @ 8:24am

Re: Immunity
Not sure about other states. But here in Ohio, Legally when an LEO violates the law they lose the protection from prosecution. In reality if the prosecution is brought by a civilian (Or attempted by to be more accurate) They retain the protection. it is only removed if the LEO is busted by other LEO's.
[ link to this | view in thread ]
Stephen T. Stone (profile), 20 Jul 2017 @ 8:52am

Re: Re: Re: TechDirt-Speak
When your humor looks no different than sincere dissent (or “sincere” trolling), maybe try harder to make people laugh.
[ link to this | view in thread ]
Mike Masnick (profile), 20 Jul 2017 @ 9:57am

Re: Re: Re: TechDirt-Speak
FWIW I found it funny.
[ link to this | view in thread ]
JMT (profile), 20 Jul 2017 @ 2:43pm

Re: Re:
Your analogy fails quite badly because you start out talking about a live performance and end with a studio recording. Makes no sense at all.

The only reason an officer should be concerned about being recorded is if they know they're doing something wrong. If they're acting legally and professionally then any criticism can be confidently responded to. Policing is too important to undertaken without a high level of public scrutiny and accountability. Officers who can't handle that are simply not the right people for the job and should be doing less important work with less serious implications for others.
[ link to this | view in thread ]
That One Guy (profile), 20 Jul 2017 @ 7:06pm

Re: Re: Immunity
it is only removed if the LEO is busted by other LEO's.

So, never then?
[ link to this | view in thread ]
Bergman (profile), 23 Jul 2017 @ 6:55pm

Re: Only in Law Enforcement
"What is behind what you shoot at" becomes a lot less important once you realize that the police can charge the person they are shooting at with murder if their shot misses and kills a bystander a hundred meters further down the street behind their target.

And their target will get convicted too, as crazy as that sounds.
[ link to this | view in thread ]