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
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: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.
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.
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.