Directive 635.20, Citizen Observation of Police (New)
Universal Review: 1/1/16-1/30/16
- Media: Storage source for visual or audio recordings, whether by film, analog, or digital means.
- Recording: Capturing of visual images, or sounds, including spoken words that are normally audible, or both, by means of a video camera, cell phone, audio recorder, or other device.
- Seizure: Significant interference with a person’s possession or ownership interests in property.
- This policy provides guidelines for handling situations in which members of the public observe, photograph, video or audio record law enforcement actions or other public activities that involve members of the Portland Police Bureau. Members should assume they are being recorded at all times when on duty in a public space.
2. All persons, not only official representatives of press/media organizations, have clear rights under the First Amendment of the U.S. Constitution to observe and record police members performing official duties in public places, so long as that person’s actions do not interfere with the member’s duties or the safety of members or others. Members shall not prohibit or intentionally interfere with such lawful observations or recordings. Any recordings that are deemed to be evidence of a crime or relevant to an investigation shall only be collected or seized in accordance with this Directive and state and federal law.
- Observing or Recording Law Enforcement Activity:
1.1. The right of persons to observe or record police actions is not absolute and is subject to legitimate and reasonable legal restrictions. For example, such restrictions include:
1.1.1. Persons may observe or record from any public place or any private property where the person has the legal right to be present. However, persons may not trespass upon property or enter locations where they are prohibited from entering, simply to observe or record law enforcement activities.
1.1.2. Beyond the act of observing or recording, persons may not interfere with the law enforcement activity. While the recording itself and/or overt criticism, insults, or name-calling may be frustrating, those acts alone do not rise to the level of interference with law enforcement activity. Examples of interference include, but are not limited to:
126.96.36.199. Intentional and persistent attempts to tamper with a witness or suspect with whom the police are speaking or engaging.
188.8.131.52. Direct physical intervention or breaching the reasonable distance established by a member, thereby dividing the member’s attention to the matter at hand.
184.108.40.206. Repeated attempts to engage a member with questions or interruptions, thereby dividing the attention of the member to the matter at hand.
220.127.116.11. Impeding the movement of emergency equipment, personnel, or flow of citizen traffic or pedestrians.
18.104.22.168. Inciting others to violate any law, any lawful command, or any legitimate and reasonable restriction.
22.214.171.124. Any action by the person that jeopardizes the safety or security of a member, victim, witness, suspect or third party.
2. Member Response:
2.1. Members may require that a person recording police activities to maintain a reasonable distance from that police activity. Members shall consider the totality of the circumstances regarding the particular police activity in establishing a reasonable distance. Members shall not establish any distance for purposes of discouraging or interfering with the lawful recording or observation of police activities. Members are allowed to establish a distance that reasonably protects the privacy of any communication between or among members, victims, witnesses, suspects or third parties.
2.2. Whenever practicable, members should give clear and concise warnings to persons recording police activities when the person’s behavior is unlawful. Accompanying the warnings, whenever practicable, a member should give clear directions on what a person can do to be compliant and should be specific enough to allow compliance. For example, rather than simply directing a person to “clear the area,” a member should advise the person from where or at what distance the person may continue lawfully recording or observing the law enforcement activity.
2.3. Members should request within a reasonable time that a supervisor respond to the scene whenever it appears that anyone recording law enforcement activities may be interfering with an investigation or it is believed that the recording itself may be evidence. Realizing that often times these are dynamic situations and actions must be taken immediately, when reasonable, members should wait for the supervisor to arrive before taking enforcement action or seizing any recording or recording device.
3. Supervisor Responsibility:
3.1. A supervisor should respond to the scene when requested or any time circumstances indicate a likelihood of interference or other unlawful behavior.
3.2. The supervisor should review the situation with the member and:
3.2.1. Request any additional assistance as needed to ensure a safe environment.
3.2.2. Take a lead role in communicating with persons who are observing or recording law enforcement activities regarding any appropriate limitations on their location or behavior. When practicable, the encounter should be recorded.
3.2.3. When practicable, allow adequate time for persons to respond to requests for a change of location or behavior.
3.2.4. Ensure any enforcement, seizure or other actions are consistent with this policy and state and federal law.
3.2.5. Explain alternatives for persons who wish to express concern about the conduct of Bureau members, such as how and where to file a complaint.
4. Seizing and Viewing Recordings:
4.1. Members may not order or coerce a person to show them recordings that have been made of official police action. Members should consider that, unless there is probable cause to believe that the recording contains evidence, seizure may not be necessary.
4.2. Seizing recordings and media:
4.2.1. Members may seize recording devices and media if:
126.96.36.199. The person recording consents to the seizure;
188.8.131.52. The person recording possesses the recording device when the person is arrested and charged with a crime; or
184.108.40.206.1. Members should protect evidence from remote access to ensure legal viewing at a later time.
220.127.116.11. Exigent circumstances exist to seize the recording device or media. Exigent circumstances requires probable cause for the member to objectively believe that immediate seizure is necessary to prevent the destruction or tampering of evidence contained on the recording device or media.
4.3. Viewing recordings or information contained on recording devices and media:
4.3.1. Members may view recordings or information contained on devices and media if:
18.104.22.168. The person recording consents to the viewing;
22.214.171.124. The person recording possesses the recording device when arrested and charged with a crime and the member obtains a search warrant based on probable cause to view and duplicate the recording device’s media; or
126.96.36.199. Exigent circumstances exist requiring the immediate viewing, for example to prevent the destruction or tampering of evidence contained on the recording device or media, or to prevent death or serious physical injury to a person.
4.4. The owner of any surrendered or seized device or media must be given a property receipt.
4.5. All instances of viewing and/or seizing recordings should be documented in an appropriate police report.
5. Return of Recording Device:
5.1. The recording device and its media should be held in police custody no longer than reasonably necessary for the police to obtain a search warrant. The recording device and its media should then be returned promptly to the device’s owner in accordance with Directive 660.10, Property and Evidence Procedure.
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