NPPA Letter and Outreach to Miami Beach PD Instrumental in Creation of Written Policy in Wake of Memorial Day Incident
August 6th, 2011 by Mickey Osterreicher
Earlier this week the Miami Beach Police Department issued an order affirming strong protections for the rights of the media and the general public regarding photography. The new order codifies a ban on warrantless search and seizure of journalistsâ€™ cameras, unless the journalist was involved in the crime or under arrest.
General Order 11-03Â setsÂ forth new guidelines and procedures governing the “investigation, seizure and searching of portable video and photo recording devices . . . .” This written policy came about in the aftermath of the fatal shooting of Raymond Herisse by Miami Beach police on Memorial Day 2011. That incident was recorded by a citizen, Narces Benoit, on his cell phone and later broadcast by CNN (and viewed on YouTube) despite alleged attempts by police officers to destroy the phone and confiscate the recording. Police also seized the camera ofÂ a WPLG photojournalistÂ (Â at 2 minutes into video). Â
After being made aware of the situation NPPA issued a letter to Miami Beach Police Chief, Carlos Noriega, objecting to the actions of his officers in violation of the Fourth Amendment protection against unreasonable search and seizure. The letter also offered “to help develop reasonable and workable policies and practices in order to avoid similar situations.”
Shortly thereafter Sergeant Jed Burger with the Technical Services Division, Professional Standards Unit of the Miami Beach Police Department contacted NPPA.Â Sgt. BurgerÂ requested information, policies, procedures and recommendations from NPPA in order to help with the “development of reasonable and workable policies and practices concerning the preservation and collection of video and photographs between photo journalists, civilians and law enforcement personnel.”Â The dergeantÂ was sent copies of the Amtrak Police General Order which was drafted with NPPA input as well as copies of the NYPD Patrol Guide and General Orders dealing with these issues.Â
Less than 2 months later, in a five page document, the Miami Beach Police recognized “that the taking of photographs and/or videos by private citizens and media personnel is permitted within areas open to general public access and occupancy.” The new policy also states at the outset that “a civilian may video record or photograph a police employeeâ€™s activities as long as they: remain at a reasonable distance; do not interfere with the employeeâ€™s [police officerâ€™s] duties and responsibilities; and do not create a safety concern for the employee [police officer], person detained, or other persons.” While those three exceptions might create “wiggle-room” for some officers to still interfere with someone taking photos/videos â€“ the supervisory requirements in any such incident will hopefully guarantee better adherence to the guidelines.Â
Under the guidelines, the seizure of cameras or media storage (such as video tapes or compact flash cards) without the consent of the photographer, is only allowed when an officer has probable cause to believe that 1) there is evidence of a criminal act on the device and 2) there is so-called “exigent circumstances” such as a likelihood of “the imminent destruction of evidence”. The two requirements that must be satisfied for this exigency to exist are: “probable cause to believe destructible evidence exists” and “reason to believe the evidence might be destroyed if they delay taking action until a subpoena/search warrant is issued.” There also must be supervisory notification and oversight in all such (consensual and non-consensual) situations.ã€€Even stricter guidelines come into place when a member of the media is involved.
The policy also distinguishes between sworn and non-sworn employees (“who are prohibited from seizing a personâ€™s portable video and photo recording devices”) and also between consensual and non-consensual search and seizure of such equipment and devices. Following closely on the language of Amtrak and NYPD prohibitions, Miami Beach personnel “shall not order or participate in the destruction of portable video and photo recording devices” or “in the erasure, deletion or destruction of digital, analog or film evidence.” The policy states that “employees shall not impede a personâ€™s right to photograph or video record an event unless that personâ€™s actions: endanger the safety of the public, employees, or property; interfere with an active crime scene; or create a reasonable safety concern.” Once again, these exceptions might be seen as too vague but as with any such rule â€“ police will always be allowed some discretion.Â
It is important to note that the policy language pertaining to media and non-media photographers and videographers differs slightly in that for non-media “no search of the device shall be conducted until a subpoena/search warrant is issued unless there is reason to believe that the immediate search of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.” Whereas “sworn employees shall not seize portable video and photo recording devices from media personnel unless they are under arrest or otherwise directly involved in the criminal act.” Additionally, “a warrantless search of portable video and/or photo recording devices seized incident to the direct involvement or arrest of media personnel is prohibited unless there is reason to believe that the immediate search of such materials is necessary to prevent the death of, or serious bodily injury to, a human being” (emphasis added).Â
Finally, the policy directs employees to the statutory limitations and liability pursuant to the Privacy Protection Act of 1980, 42 U.S.C. Section 2000aa, whereby “it is unlawful for a sworn officer or employee, in connection with an investigation or prosecution of a criminal offense, to search for or seize the work product of a media photographer/videographer, unless: there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being; or there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” The policy also puts in place the right to sue department employees who violates the policy, noting that “sworn officers and employees may be held personally liable in an action for civil damages for violation of federal statute, 42 U.S.C. Section 2000aa-6.” and “a search or seizure of the work product is prohibited when the offense is merely the withholding of such material.”
Under the federal statute, “notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication . . .” 42 U.S.C. Â§ 2000aa(a).
Accordingly, the law authorizes civil actions by aggrieved persons for violations of the Act and provides for the recovery of “actual damages but not less than liquidated damages of $1,000, and such reasonable attorneysâ€™ fees and other litigation costs reasonably incurred as the court, in its discretion, may award.”Â
While NPPA is pleased to see that MBPD has issued new guidelines dealing with photography and has said so in a follow-upÂ letterÂ to the chief; the real challenge will be in the ongoing education and training of its officers. AsÂ today’s letter also states it isÂ “critical that when violations of this policy occur –Â theyÂ are quickly and thoroughly investigated by the department –and employee(s) found to have violated departmental policy be properly disciplined and criminally charged if necessary.”
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