Recording Police Activity and Identification Issues

Two areas in which my brethren are constantly creating self inflicted trouble is the complete misunderstanding or willful ignorance of the laws concerning the recording of police activity as well as the laws concerning whether or not a citizen must provide  identification.

Note: for a summary on Police-Citizen Contacts see the 2-3-4 Rule.

Before I jump into these two issues, I want to point out that in my experience, video clears more peace officers of false accusations than it catches those committing malevolent acts.  However, the former simply don’t make it to the all knowing interweb.  Often, complaints evaporate once the complainant is invited to come watch the video.

I also want to point out that I understand the divided attention dilemma for peace officers.  It is difficult enough to conduct business and be observant of one’s surroundings.   Having one’s attention divided even more by having another person interjected into the mix doesn’t make things easier, but use their camera as plus for you. Let it catch you doing things the right way instead of doing something that makes you the next big YouTube star.

The Issue of Videoing Police Activity

It is perfectly legal for a citizen to record police activity.  This issue has been addressed recently by two federal appeals court circuits, both circuits upheld the practice as protected by the First Amendment.  The Supreme Court refused to take either of the cases on appeal thus letting stand the rulings of the lower courts.

The first of these cases comes out of Massachusetts (2011) in which police arrested an individual who was videoing them while they arrested a suspect.  His cell phone was also seized.  The police based their charges on a state law concerning wiretapping.  The criminal charges were dismissed, and the individual filed a lawsuit.   The court framed the issue as a First Amendment issue and ruled in the favor of the citizen.  Former Providence, Rhode Island, Police Captain Jack Ryan, who is also an attorney, summarized the case here.

The second case comes out of Illinois (2012) where the state legislature specifically made it a crime to record police activity.  This law was challenged, and the court struck it down on First Amendment grounds.

The courts are clear on this issue.  There is no ambiguity on the matter.  My message to my brethren is also simple: unless a person is materially interfering while videoing, simply leave them alone.  If you are worried about what the video will capture, the issue is with you and not the person taking the video.  Don’t take the bait.

Demanding Identification

There is no law in Georgia that allows a peace officer carte blanche authority to compel a person to provide identification.  Whats-more, there is no law requiring a person to even obtain or possess identification in general.  Requirements for identification are linked to specific activities, and persons not engaged in those activities need not possess identification.  For instance, the requirement for an individual to have a driver’s license only applies if a person is operating a vehicle that requires a license to operate it in the first place and the vehicle is being operated in a location for which the operator must be licensed to do so.

What I mean by no carte blanche is that officers simply cannot demand identity from a person and then arrest that person for failure to comply.   Remember that any seizure of a person requires at minimum reasonable articulable suspicion of a crime (see above link on police-citizen contacts), and using a show of authority to compel identification is a seizure.  If the person (and/or their stuff) is not free to go then the person (and/or their stuff) is seized.  If, for instance, a peace officer approaches a citizen and demands identification while telling the individual they are not free to leave, and then said peace officer takes away the individual’s cell phone, both the person and their property have been seized under the Fourth Amendment.  Needless to say, attempting to delete a video from the phone is not a good idea.

In Conclusion

It is perfectly legal to ask someone for their identification for any or no reason.  However, once the show of authority is made, being able to articulate specific facts when taken together as a whole indicate that a person is involved in criminal activity is a must on the part of the officer.  Merely being “suspicious” is not enough.

18 comments

  1. Lee, good to see this. It’s getting a wider signal outside of Georgia which is nice I believe.

    Montieth

  2. Chief….Well written and well reasoned. Your Citizens in Oconee County are luck to have you and Sheriff Berry serving them. Keep up the excellent work.

  3. This guy gets it. I wish more police were like this guy. He understands the law and the constitutional rights of citizens. Good work, sir. Sounds like one of the very good ones.

  4. Thank you for taking the time to educate the law enforcement community and the civilian public. Your efforts make this country a better place.

  5. Well stated! It’s hard for people to understand the law, so they naturally assume you have something to hide just because you’re exercising your rights.

  6. Well-stated. A lot of citizens don’t know how to react to stop-and-identify tactics and assume those of us who do prefer to exercise our rights have something to hide. We just prefer not to have our rights eroded.

  7. I appreciate you writing this. More LEO like you would go a long way to improve the relationship between LE officers and those of us that are not these days

  8. Thank you Chief Weems. I hope the word goes far and wide.

    I often drive 70 in a 65 zone. That doesn’t make it right nor lawful. If I am stopped for speeding in that circumstance I will think, “this is a ** reason for a stop”, but I will not contest its validity.

    A cop has no authority to stop any free man just because he looked at him and didn’t like what he saw. If he has green spiked hair, or is videoing in public, or is carrying a sidearm, if he is committing no crime he should not be molested by State Employees.

  9. I really think this is the sort of thing that should be taught in schools. It is important to note that “Cops are our friends” is accurate, yet We all have rights that cannot be violated because Mr. LEO flashes his badge.

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