You have the right to remain silent, and film the proceedings — Karen Selick

Canadian Constitution Foundation litigation director Karen Selick, writing in the National Post:

That’s “Ur-Papparazo”, Ron Galella, in the football helmet, stalking his celebrity prey. Marlon Brando (left) had previously punched him in the face during a prior encounter. Galella was the subject of the recent documentary “Smash his Camera”. Photo copyright Ron Galella.

What have cops got against cameras these days? Increasingly, people are getting arrested, charged or even assaulted by police officers, merely for attempting to take photos or videos of officers at work. Often, police simply command people to stop photographing. Scared into thinking they must be breaking some law, citizens comply.

When Polish visitor Robert Dziekanski died after being tasered at the Vancouver airport in 2007, police seized the now famous video made by witness Paul Pritchard, who had to hire a lawyer and threaten court proceedings to get it back.

The American Civil Liberties Union has won numerous court cases against police who illegally harass photographers and videographers, but says nevertheless: “A continuing stream of incidents … makes it clear that the problem is not going away.”

The phenomenon struck close to home on August 2 when I got a phone call at 7:30 a.m. from my client Montana Jones telling me that numerous officers were at her farm with a search warrant. Ms. Jones is suspected of complicity in making 31 rare Shropshire sheep disappear from her farm before they could be seized and killed by the Canadian Food Inspection Agency (CFIA) on suspicion of disease. (Incidentally, when 26 of the missing sheep were eventually found and killed two months later, all tested disease-free.)

Although Ms. Jones has not been charged with anything, the only phone call the police would let her make was to me, her lawyer. She asked me to call a couple of her friends who live nearby and have them come over to videotape the proceedings. Two friends arrived at separate times with their cameras, but an officer stationed at the farm gate denied them entry and forbade them to take photos. “I have my orders,” was his only explanation.

One of the friends returned later carrying only a pen, her wallet and identification. After being threatened with arrest if she dared walk up the driveway, she was finally allowed entry by a more senior member of the investigation team, but was again warned that she had better not be carrying a cell phone or any other data recording device.

There is no law in Canada that prohibits people from openly photographing police. Section 129 of the Criminal Code prohibits “wilfully obstructing” police in the execution of their duty, but it is hard to imagine how standing by peacefully and videotaping as police searched the premises and piled up items for seizure could be considered obstructing. After all, the police themselves were videotaping on Ms. Jones’ premises — but selectively. They probably didn’t capture themselves ordering her friend to refrain from taking the pictures she was legally entitled to take.

That same day, three other search warrants were executed at the homes of other individuals the CFIA suspects of conspiring with Ms. Jones to save her healthy sheep. At Michael Schmidt’s residence, all cell phones were immediately confiscated. When a visitor from outside arrived with his cell phone, Schmidt’s wife borrowed it and took photos of police inside her home. Officers seized the phone even though it was clearly outside the scope of the warrant. They returned it three hours later, with the photos erased. When the victim of this apparently illegal seizure objected, police responded, “We can do whatever we want.” But of course, that arrogant response was not permitted to be recorded.

That willful destruction of data by police probably constitutes the offence of mischief under section 430(1.1) of the Criminal Code. The possibility of the victim laying charges is being investigated.

Police must be made to understand that being on duty or executing a search warrant does not transform an officer into a petty dictator with carte blanche to issue arbitrary orders to everyone in sight. Police cannot do “whatever they want.” Citizens have the right to hold them accountable for their actions. Personal cameras are important tools in implementing that right. Bullying people out of using them must cease.

The Baltimore City Police Department is being sued for allegedly seizing and deleting the contents of a man’s cell phone after he recorded officers making an arrest. Recently, the U.S. Department of Justice — which appears to have intervened in the lawsuit — issued guidance to the Baltimore Police recommending that it affirmatively assert individuals’ constitutional right to observe and record police while discharging their duties. Let’s hope this triggers a sea-change in police attitudes not only south of the border, but here in Canada too.

National Post

Karen Selick is the litigation director for the Canadian Constitution Foundation.

4 Comments

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4 responses to “You have the right to remain silent, and film the proceedings — Karen Selick

  1. thebovine

    This subject must be in the air these days. It’s also discussed in the LENS column of the New York Times:

    “Mickey H. Osterreicher is the general counsel for the National Press Photographers Association and edits the organization’s Advocacy Committee blog. He spoke with James Estrin. Their conversation has been edited.

    Q.
    It seems like photographing in public is becoming a crime.

    A.
    Literally every day, someone is being arrested for doing nothing more than taking a photograph in a public place. It makes no sense to me. Photography is an expression of free speech.

    Since 9/11, there’s been an incredible number of incidents where photographers are being interfered with and arrested for doing nothing other than taking pictures or recording video in public places.

    It’s not just news photographers who should be concerned with this. I think every citizen should be concerned. Tourists taking pictures are being told by police, security guards and sometimes other citizens, “Sorry, you can’t take a picture here.” When asked why, they say, “Well, don’t you remember 9/11?”

    I remember it quite well, but what does that have do to with taking a picture in public? It seems like the war on terrorism has somehow morphed into an assault on photography.

    Q.
    What’s caused this?

    A.
    It’s been a perfect storm. There’s 9/11, and now photojournalists who traditionally worked for newspapers are losing their jobs and becoming freelancers who may not have the backing of their news organizations. You have Occupy Wall Street, where police didn’t want some of their actions to be photographed. And now everybody with a cellphone is capable of recording very high-quality images. And everyone has the ability to upload and share them almost instantly. There is no news cycle — it’s 24/7 with unlimited bandwidth….”

    http://lens.blogs.nytimes.com/2012/08/14/criminalizing-photography/

  2. Yesterday several friends and I spent 5.5 hours videotaping a police raid on a friend’s head shop. The police hated that we were there but they knew they couldn’t stop us. A camera is a very powerful force.

  3. Grow Gal

    What I’d like to know is the CFIA etc. are making raids, searching, seizing and are supposed to have the power to do this? then WHY do they need police protection?..and..furthermore , are WE or is not every other citizen entitled to police protection. Why then does no one call the police or HALT proceding until they have protection from invasion of privacy on private property,or to protect them.? Tit for tat. I think one should pursue the pursuer, find out where they go or kids go to school, follow them, see what they do , eat, maybe some of us are not impressed with their “station” and example. Does it meet our standard of a public servant. Why should they get to choose who they will target. Maybe they should eat organic and NOT as public servants enter certain establishments. They should be monitered sit outside their home residence. Would they feel comfortable? Maybe we can create a new position as ridiculous as theirs. I also have seen that because one wears a uniform or is brainwashed that they have all this power they tend to be puffed up with vanity. If they want cooperation we are all human I don’t care what job or position you have..then you had better have enough courtesy for the ones you are not protecting or allowing to be harrassed on phony charges.
    There are much bigger fish to fry than destroying a few farmers genetics. What proof is there that the sheep are acutally dead? Maybe they wanted the genetics to create a new wonder sheep. If there had been no brains to test what then? Wouldn’t that have saved everyone a lot of hassel. Stand your ground and make your point that we won’t put up with this. We are not
    criminals and are not breaking any real laws.
    Personally I think it is a test and they want to see if they can get away with this or what kind of resistance they are going to get. If someone knows a raid is coming why not alert the papers and have it taped for your protection or hide and take them and if they were honest and legit and doing their job what are they afraid of. This is how they are making others feel and it is dishonest. How about we start calling it discrimination? For using our freedom to choose. They got the sheep..enough is enough.

  4. Why would police object to photographs being taken of their lawful actions? I think an important provision of the U.S. Constitution has been changed, and now reads, “an arrested person shall be presumed guilty until proven innocent.” My Latin is poor, but there was a phrase like, “Qui custodia custodiat?” – meaning – who will guard against the guardians? Learn your rights, and keep your Constitution handy.

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