The New York Civilian Complaint Review Board has just released a report [PDF] indicating NYPD officers are slow learners when it comes to recognizing citizens' right to record police officers. It's not that these officers have never been told. They have. The NYPD's "Finest Order" was handed down in 2014, telling officers citizens had a First Amendment right to film police. It's a response to a 2012 order by the Washington DC PD and a First Amendment lawsuit filed that year. It followed this up with internal policy changes two years later. And yet, problems persist.
In the three-year period from January 1, 2014 through December 31, 2016, the CCRB closed 257 complaints in which civilians reported that officers had interfered with their ability to record police activity. This police interference included, but was not limited to, officers instructing civilians to stop recording, searching civilians‘ phones for recordings of activity, deleting such footage, and damaging recording devices.
In fact, those with the most time on the job seem to have the greatest difficulty following instructions and policy changes.
Eighty-four percent of the officers named in interference-related allegations (180 subject officers) had more than two years on the force at the time the alleged incidents occurred. Of those, 53 percent (113 subject officers) had between three and 10 years on the force when they were alleged to have interfered with civilian recordings and the remaining 31 percent (67 subject officers) had more than 10 years on the force.
The NYPD "Finest Message" on recording distinctly notes what officers aren't supposed to do when encountering a citizen photographer:
Recognizing the affirmative right to record police action, UNDER NO CIRCUMSTANCES should a Member of the Service:
Threaten, intimidate, or otherwise discourage an observer from recording the police officer’s activities, assuming the observer is at a safe distance;
Intentionally block or obstruct cameras or other recording devices when there is no legitimate law enforcement reason to do so; or
Delete any pictures or videos from the observer’s camera, or order observer to delete such pictures or recordings.
But these orders were violated repeatedly. The most common excuse for violations was the officer didn't remember doing it or denied the violation had occurred.
NYPD officers who violate citizens' First Amendment rights do this in several ways. Intimidation is one tactic used to shut down recordings:
The CCRB also received multiple complaints of police officers pointing flashlights at civilians‘ recording devices to impede their ability to record. In one such case, the CCRB substantiated an interference allegation by a civilian and his wife who were walking down the street when they observed a police officer making an arrest. The civilian began taking photos of the arrest on his iPad and was instructed by the officer to stop taking photographs and to step back. The civilian stepped back but maintained that he had a First Amendment right to photograph the arrest. The officer then shone a flashlight at the iPad. The CCRB substantiated an interference allegation against the officer based on photographic evidence and the consistent testimony of the civilian witnesses.
In a similar 2015 case, an officer stopped a group of individuals suspected of fighting and gun possession. When a third party civilian began to record the stop, an officer turned and pointed a flashlight towards the civilian‘s camera for nearly three and a half minutes. In that case, the interfering officer never issued any commands toward the recording civilian and the Board substantiated the interference allegation.
Other forms of intimidation were more severe. In a 2015 case, a civilian called 911 after he was assaulted at a bar. Officers responded and the civilian became angry when officers could not find the assailant. After a heated verbal exchange, the responding officers told the civilian that he would be arrested if he did not leave the location. The officers then went back to their marked police vehicle to prepare their complaint paperwork, at which time the civilian stood in front of the vehicle and attempted to take a photograph of the officers‘ license plate. At that point, the officer in the driver‘s seat drove the vehicle toward the civilian and stopped within inches of his body before driving away. Finding that the video evidence proved that the officer intentionally drove the police vehicle towards the civilian in a threatening manner and with the intention of preventing him from taking a photo of the license plate, the CCRB substantiated allegations against the officer for interfering with the civilian‘s recording, and for threatening him with the use of physical force.
NYPD officers also illegally seized and searched cellphones while being filmed by citizens. Multiple confirmed allegations show officers took phones with the intent of accessing, if not deleting, recorded footage. The CCRB notes it's very difficult to substantiate claims of deleted footage thanks to the inherent nature of the violation. It's tough to prove a recording existed prior to an alleged deletion when recordings that survive officers' deletion attempts usually absolves them of attempted deletion allegations.
But searches/seizures with the intent of deleting recordings is actually the more subtle of the NYPD's anti-photography tactics.
Substantiated instances of damage or destruction of recording devices can be proven by video evidence from sources other than the recording civilian. In one incident, surveillance cameras captured officers physically grabbing a civilian‘s body as he began recording their stop and questioning of a woman on a sidewalk. After officers arrested the civilian, placed him in their patrol car, and began driving away, surveillance video captured one officer throwing his cell phone out of the car window. The phone landed on the sidewalk. The civilian was charged with Obstructing Governmental Administration, Disorderly Conduct and Resisting Arrest, but these charges were all eventually dismissed.
Some cops do this repeatedly:
In a 2014 incident, the officer‘s interference and destruction of a cell phone occurred simultaneously. The complainant sat in his car with two friends when officers approached him, told him the car smelled like marijuana, and asked him if he had been smoking it. When the complainant said no, officers removed the occupants from the car, frisked and searched them all, and then allowed them to return to the car. When an officer walked to the vehicle to return the complainant‘s identification, the complainant alleged that the officer saw his phone resting on his arm, assumed he was recording, grabbed his phone from his hand, and threw the phone to the ground, stomping on it. The officer then forcefully arrested the complainant. The CCRB found that the officer lacked credibility given three prior complaints of the same officer destroying civilian cell phones, and substantiated misconduct.
But the worse thing some NYPD officers do is shut down recordings with bullshit arrests, because it's always best to follow up a First Amendment violation with a severe curtailment of literal freedom:
In a 2014 incident, for example, a civilian began audio-recording an officer‘s stop of the civilian‘s friends. The officer grabbed the audio-recorder from the civilian‘s shirt pocket, then issued him a summons for possession of a box cutter under a section of the New York City Administrative Code that prohibits minors from possessing box cutters. The complainant was over 50 years old and clearly could not be mistaken for a minor and the CCRB substantiated the improper issuance of a summons.
The CCRB recommends more training, which is really all it can do. Officers have had close to three years to adjust to the constraints of the 2014 Finest Message, but it appears several officers still make up their own rules during encounters with citizen photographers. It's unrealistic to expect the number of violations to hit zero, but some disciplinary changes need to be made if these policies are going to have much effect on officer behavior. Otherwise, the same officers will keep deploying the same tactics and hoping citizens don't complain or the CCRB doesn't have enough to work with to substantiate the allegations.