You’re walking down the sidewalk and see police officers making an arrest. They’re using force, and the man they’re arresting is protesting. You pull out your cellphone and start recording.
An officer orders you to stop, says you’re breaking the law. He demands that you hand over your phone.
What should you do? Are you breaking the law?
“You have an absolute right to videotape an officer or anyone else on the street,” said Howard Marks, an Orlando attorney who specializes in civil-rights cases. “Law-enforcement officers don’t like being taped. That’s tough luck.”
The issue has become a growing civil-rights dispute, the result of smartphone proliferation.
It has transformed a dispute that used to involve a relatively small number of people — news photographers — into one that has the potential to put cops at odds with any bystander with a cellphone.
It has prompted arrests, disputes, and lawsuits across the country, including:
•Rochester, N.Y., where a woman was arrested after she began video-recording a traffic stop while standing in her yard.
•Baltimore, where officers seized a man’s phone after he recorded video of his friend’s arrest. When it was returned moments later, the video had been deleted.
•Newark, N.J., where a high-school girl was arrested after video-recording officers responding to an incident on a transit bus.
On Monday, a 25-year-old Orlando man, Alberto Troche, filed a federal civil-rights lawsuit against Orlando police Officer Peter Delio, accusing him of falsely arresting him and violating his constitutional rights Dec. 7 when the officer ordered him to stop video-recording another man’s arrest in downtown Orlando.
The video shot by Troche shows several Orlando officers yelling at a crowd of bystanders, ordering them to stop video-recording the arrest and threatening them with arrest if they refuse.
It also appears to show Delio grabbing Troche’s phone after telling him, “I’ll be taking that.”
Sgt. Jim Young, a spokesman for the Orlando Police Department, would not comment on the case, citing the pending litigation. City lawyers have not filed a response in federal court.
The state’s largest police union, the Police Benevolent Association, did not return a call for comment. Neither did the Fraternal Order of Police, which represents Orlando police officers.
“We’ve seen over the past couple of years … a pattern of law enforcement officers ordering people to stop taking pictures or videos in public places as well as taking cameras and arresting people who fail to comply” said Baylor Johnson, the media-relations manager with theAmerican Civil Liberties Union of Florida. “That’s something we find really troubling.”
Matthews Bark, a former assistant state attorney now in private practice in Altamonte Springs, said, “It’s coming up more and more. It’s something we need to deal with as a society.”
Troche was accused of resisting arrest without violence, a charge that prosecutors dropped. But not until he’d spent 15 hours in police custody and at the Orange County Jail.
Local lawyers were unequivocal this week that officers were in the wrong when they ordered Troche to stop recording the arrest.
“If you’re in a public place, and you’re not interfering with a lawful investigation, then you have an absolute right to videotape a police officer,” said Adam Pollack, an Orlando criminal defense lawyer. “There’s no expectation of privacy.”
He pointed out that the intersection where Troche was arrested — Wall Street and Orange Avenue — is already under video surveillance by city-owned cameras.
The Orlando Police Department, Orange County Sheriff’s Office and Florida Department of Law Enforcement all advise officers that, when they’re in public, citizens have a right to video-record them.
But the lines get blurry about whether an officer has a right to seize the phone or camera of someone recording officers at work.
If the officer thinks it contains evidence of a crime and there’s a danger that the evidence is about to be destroyed, he or she should seize and hold it, according to an OPD training bulletin from November.
In his arrest report, Delio wrote that’s what he was trying to do when he took Troche’s phone: preserve evidence of a crime.
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