June 2, 2003

Resisting Arrest: Reporting Professionals on the Street Have a Right to Be There

An FBI agent interfering with production on Joel Sucher's 'Red Squad.' Courtesy of Pacific Street Films.

In April 2002, I was videotaping an animal rights protest in Beverly Hills, California, for an independent documentary I am producing titled Chattel. During the demonstration, the Beverly Hills Police showed up. I, along with the protestors and another filmmaker, was detained, put in a line up and photographed. The officers then confiscated my DV camera and videotape. When everything was finally returned to me several days later, the camera and part of the videotape had been damaged. During the time I was detained, the police were intimidating––and convincing––telling me I could not touch my camera, and that they had every right to take my tapes.

They were wrong. 

Unfortunately, I did not know this at the time.

Face It: Tensions with Police Exist

It is not uncommon for an officer to say to someone who is videotaping police activity, "Don't film my officers," because police and law enforcement officials often see filmmakers as a threat. They also see filmmakers as an easy source of evidence. In the case of the videotape being confiscated, I was told that it was "evidence of a crime." They told me that they had "every right" to take the tapes. The truth was––because I was a filmmaker––they did not.

Several months later, I was filming a fur protest in Beverly Hills outside of Nieman Marcus. A police officer was ticketing a protestor and I was filming the incident. The officer looked at me, pointed to the camera and said, "Is that a gun?" Another officer came up to me and said, "We don't know if that is a gun; don't point that towards us."

It seemed to be an absurd comment, yet when a police officer makes a command, you ignore him at your peril. While he may not have the rightful authority to arrest you, he does have the immediate power to do so. What's a filmmaker to do? We put ourselves out on the line to get the footage we need, and we need to know how to protect that footage from confiscation––and protect ourselves from abuses of power.

Veteran documentary filmmaker Joel Sucher of Pacific Street Films first began dealing with these issues back in 1971 when he and partner Steven Fischler filmed Red Squad. The film "pitted them against the forces of both the police and FBI's surveillance units––ever-present at the many anti-war demonstrations in the early 1970s." Sucher and Fischler managed to get themselves arrested while filming the police filming them, and in the process, amassed a hefty FBI file.

According to Sucher, "The mentality of police and law enforcement hasn't changed over the years, it is what they can get away with that has changed. Nine-Eleven gave them the pretext to return to the days with no oversight, and with the Patriot Act, we are returning to those days."

If, as it seems, there is once again increasing police pressure on documentary filmmakers and other newsgatherers these days, there is that much greater need for us to know our rights and how to assert them.

Be Prepared!

Above all, it is important to clearly identify oneself as a reporting professional. Why? First Amendment protections apply doubly to us. Not only do we have the rights everyone else has to our own free speech and expression, we as reporting professionals are an integral part of the "press" of which Constitution says that Congress can make no laws abridging the freedom. If the police can recognize us readily (and are behaving properly), they will leave us alone to do our business.

Next, know what the law is regarding professional filmmakers in your jurisdiction. Do not assume that the police know these laws. Create and carry with you a compilation of relevant code sections. In California, for example, you would have with you at all times while you are working a card or paper explaining that an officer cannot even get a lawful search warrant for your camera, let alone confiscate your film straight out. Just as the officer carries a Miranda warning card with him, you should carry a California Penal Code §1524 card with you that states the exact language:

CALIFORNIA PENAL CODE §1524(g)

No warrant shall issue for any item or items

described in Section 1070 of the Evidence Code

The reverse of the card should have language from the California Evidence Code:

CALIFORNIA EVIDENCE CODE §1070(a)

A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association. . . cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose. . .any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

CALIFORNIA EVIDENCE CODE §1070(c)

As used in this section, "unpublished information" includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

Another example: in New York, where you need a permit to film with a tripod, but do not need a permit to film with a handheld camera, you would need to carry with you the applicable permit provision.

Are there specialized provisions like these in your jurisdiction that pertain to your work? Consult your local ACLU chapter, local union or other professional organization to find out.

Lastly, understand what you do––and do not––have to do for the police. You do have to obey their lawful directions. But you do not, for example, have to say "Yes" when officers ask if they can see your footage or have your camera. While they may have the power to physically wrest your equipment from your possession, they do not have the right to do so. If you give them permission to have your camera or footage, they have just acquired the right. Show your identification, tell the officers that they are not entitled to take your camera or footage without your permission, and tell them that you do not give them permission. If you can, record or otherwise document your conversation expressing this.

Actually, if you anticipate problems with the police, it's a good idea to have a second camera operator videotape any interaction you may have with them. If that isn't possible, have other members of your crew act as witnesses. And if you are filming solo, get the names and phone numbers of several people who acted as witnesses.

If the officer takes your equipment anyway, follow up your denial of permission by submitting it in writing. Complain to the officer's supervisor, in writing. Contact your civil rights attorney to get your material back and to vindicate your rights––with a lawsuit, if necessary.

Summary

It is important to be aware of the fact that the reactions of police or other law enforcement personnel do not always coincide with the law. In other words, just because you have a legal right to film, doesn't mean you won't be arrested, or your film won't be confiscated. Be prepared for this, and if you decide to stand up against it, be prepared to fight it later in court.

 

Rebecca Harrell  is in post-production on Chattel, which explores the passion that drives animal rights to speak out and take action. She can be reached at worldcitizenproductions@yahoo.com. Mary Anna Soifer, a Los Angeles-based civil rights attorney, assisted in this article; she can be reached at masoifer@yahoo.com.

Tags: