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.
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.
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.