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Berkeley, Baltimore, and New York City general orders on public observation of police activity.

Note #1: The Berkeley general order implies officers have a right to confidentiality equal to a person being detained.  The general order requests concurrent permission to record from a person being detained and from the officer, in order to maintain officer confidentiality.  However, in 2012 the US supreme court denied that police have any expectation of privacy while on duty in public.  

Note #2: In the Daily Californian (UC Berkeley campus paper) Berkeley police officer Jennifer Coates is quoted as stating: “If someone is making the officer uncomfortable, they have the right to ask that person to step back.”  However, the text of the Berkeley general order states that officers should only ask observers to step back in "those instances where a potential threat to safety is involved."  The general order does not does not state that officers should have onlookers withdraw due to a feeling of discomfort from being observed.  There has to be a "threat to safety".

Note #3: The Berkeley general order invokes California penal code Section 148, prohibiting delaying or obstructing a police officer.  However, an officer must be acting in the lawful bounds of duty for section 148 to apply.  Observers may delay or obstruct police actions that are not legal.  Furthermore, section 148 only applies to actions that reasonably cause delay or obstruction to a police officer.  A police officer may not declare observation of, or commenting on an officer's actions to be delaying or obstructing. An officer has to prove that a person's actions were willfully done to delay or obstruct.

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BERKELEY POLICE DEPARTMENT

DATE ISSUED: July 21, 2015 GENERAL ORDER W-01

New Order which was formerly T & I 91. 1

SUBJECT: THE RIGHT TO WATCH

PURPOSE

1 - The purpose of this General Order is to adopt policies and procedures regarding a citizen’s right to observe, photograph or video record officers during the course of the officers’ public duties.

POLICY

2 - It shall be the policy of the Berkeley Police Department to minimize restrictions on public observation, photographing or video recording of police officers’ performance of their duties, while ensuring the safety of the public and the officers.

In all instances, it is expected that officers will conduct themselves in a professional manner, exercising good judgment and treating all persons courteously. Officers should restrict the practice of requesting that onlookers withdraw only to those instances where a potential threat to safety is involved.

PROCEDURES

3 - At the scene of an arrest or other inquiry being conducted by police officers in public, citizens have the right to observe; photograph and video record the officers from a safe distance. Citizens also have the right to communicate with the detained person, provided, however:

a. that the observer does not interfere physically or verbally with the investigation being conducted by the officer. Penal Code Section 148 prohibits delaying or obstructing any peace officer engaged in the duties of his/her office.

b. that the observer's actions or communications do not jeopardize the safety of the officer conducting the inquiry nor the safety of the person who is the subject of the officer's attention. An officer may instruct an observer to maintain a safe distance from the scene, with the understanding that what constitutes a “safe” distance may vary depending on the circumstances.

c. that the confidentiality of the matter being discussed with a suspect, victim, witness, or reporting party is not compromised except with concurrence of the citizen and the officer involved. 

New Order which was formerly T & I 91. 

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Baltimore Police photo, video policy

Upon discovery that a bystander is observing, photographing, or video recording the conduct of police activity:

1. DO NOT impede or prevent the bystander's ability to continue doing so based solely on your discovery of his/her presence.

2. DO NOT seize or otherwise demand to take possession of any camera or video recording device the bystander may possess based solely on your discovery of his/her presence.

3. DO NOT demand to review, manipulate, or erase any images or video recording captured by the bystander based solely on your discovery of his/her presence.

4. For investigative purposes, be mindful of the potential that the bystander may witness, or capture images/video of events considered at some later time to be material evidence.

5. BEFORE taking any police action which would stop a bystander from observing, photographing, or video recording the conduct of police activity, Officer(s) must have observed the bystander committing some act [deemed criminal, such as obstruction, disorderly conduct or interfering with an officer's lawful duties].

Source: Baltimore Police Department General Order J-16

(this order was issued in 2012)

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POLICE DEPARTMENT CITY OF NEW YORK

DATE: 08/06/2014
TIME: 15:08:40
SER#: 9881632

FINEST MESSAGE
General Administrative Information

To: All Commands
Re: Recording of police action by the public

Members of the service are reminded that members of the public are legally allowed to record (by video, audio, or photography) police interactions.  These interactions include arrest and other situations.  Members of the service will not interfere with a person's use of recording devices to record police interactions.  International interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.

It should be noted, however, that persons may not interfere with police operations.  Members, if appropriate, should advise the public not to get too close and may take action only if the person interferes with the operation or the safety of the members of the service or the public.  However, mere recording of an incident does not constitute interference.

Commanding officers will ensure that the contents of this message are disseminated to all members of the service.

Authority: Chief of Department
Oper: Lt Corbett

ADMN - SER#: 9881632