Public Recording of Law Enforcement Activity

Copyright Lexipol, LLC 2020/04/27,

California Department of State Hospitals

Policy Manual

Policy

419

Public Recording of Law Enforcement Activity

419.1 PURPOSE AND SCOPE

This policy provides guidelines for handling situations in which members of the public

photograph or audio/video record law enforcement actions and other public activities

that involve employees of the California Department of State Hospitals (DSH). In

addition, this policy provides guidelines for situations where the recordings may be

evidence.

419.2 POLICY

DSH recognizes the right of persons to lawfully record employees of DSH who are

performing their official duties. Employees of DSH will not prohibit or intentionally

interfere with such lawful recordings. Any recordings that are deemed to be evidence of

a crime or relevant to an investigation will only be collected or seized lawfully.

Officers should exercise restraint and should not resort to highly discretionary arrests for

offenses such as interference, failure to comply or disorderly conduct as a means of

preventing someone from exercising the right to record employees performing their

official duties.

419.3 RECORDING LAW ENFORCEMENT ACTIVITY

Members of the public who wish to record law enforcement activities are limited only in

certain aspects.

(a) Recordings may be made from any public place or any private property

where the individual has the legal right to be present (Pen. Code § 69; Pen.

Code § 148).

(b) Beyond the act of photographing or recording, individuals may not interfere

with the law enforcement activity. Examples of interference include, but are

not limited to:

1. Tampering with a witness or suspect.

2. Inciting others to violate the law.

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California Department of State Hospitals

Policy Manual

Policy

419

3. Being so close to the activity as to present a clear safety hazard to the

officers.

4. Being so close to the activity as to interfere with an officer’s effective

communication with a suspect or witness.

(c) The individual may not present an undue safety risk to the officers,

him/herself or others.

419.4 OFFICER RESPONSE

Officers should promptly request that a supervisor respond to the scene whenever it

appears that anyone recording activities may be interfering with an investigation or it is

believed that the recording may be evidence. If practicable, officers should wait for the

supervisor to arrive before taking enforcement action or seizing any cameras or

recording media.

Whenever practicable, officers or supervisors should give clear and concise warnings to

individuals who are conducting themselves in a manner that would cause their

recording or behavior to be unlawful. Accompanying the warnings should be clear

directions on what an individual can do to be compliant; directions should be specific

enough to allow compliance. For example, rather than directing an individual to clear the

area, an officer could advise the person that he/she may continue observing and

recording from the sidewalk across the street.

If an arrest or other significant enforcement activity is taken as the result of a recording

that interferes with law enforcement activity, officers shall document in a report the

nature and extent of the interference or other unlawful behavior and the warnings that

were issued.

419.5 SUPERVISOR RESPONSIBILITIES

A supervisor should respond to the scene when requested or any time the circumstances

indicate a likelihood of interference or other unlawful behavior.

The supervisor should review the situation with the officer and:

Copyright Lexipol, LLC 2020/04/27,

California Department of State Hospitals

Policy Manual

Policy

419

behavior to be unlawful. Accompanying the warnings should be clear directions on what

an individual can do to be compliant; directions should be specific enough to allow

compliance. For example, rather than directing an individual to clear the area, an officer

could advise the person that he/she may continue observing and recording from the

sidewalk across the street.

If an arrest or other significant enforcement activity is taken as the result of a recording

that interferes with law enforcement activity, officers shall document in a report the

nature and extent of the interference or other unlawful behavior and the warnings that

were issued.

419.5 SUPERVISOR RESPONSIBILITIES

A supervisor should respond to the scene when requested or any time the circumstances

indicate a likelihood of interference or other unlawful behavior.

The supervisor should review the situation with the officer and:

(a) Request any additional assistance as needed to ensure a safe environment.

(b) Take a lead role in communicating with individuals who are observing or

recording regarding any appropriate limitations on their location or behavior.

When practical, the encounter should be recorded.

(c) When practicable, allow adequate time for individuals to respond to requests

for a change of location or behavior.

(d) Ensure that any enforcement, seizure or other actions are consistent with this

policy and constitutional and state law.

(e) Explain alternatives for individuals who wish to express concern about the

conduct of Office of Protective Services (OPS) employees, such as how and

where to file a complaint.

419.6 SEIZING RECORDINGS AS EVIDENCE

Officers should not seize recording devices or media unless (42 USC § 2000aa):

(a) There is probable cause to believe the person recording has committed or is

California Department of State Hospitals

Policy Manual

Policy

419

committing a crime to which the recording relates, and the recording is

reasonably necessary for prosecution of the person.

1. Absent exigency or consent, a warrant should be sought before seizing

or viewing such recordings. Reasonable steps may be taken to prevent

erasure of the recording.

(b) There is reason to believe that the immediate seizure of such recordings is

necessary to prevent serious bodily injury or death of any person.

(c) The person consents.

1. To ensure that the consent is voluntary, the request should not be made

in a threatening or coercive manner.

2. If the original recording is provided, a copy of the recording should be

provided to the recording party, if practicable. The recording party

should be permitted to be present while the copy is being made, if feasible.

Another way to obtain the evidence is to transmit a copy of the recording

from a device to a department- owned device.

Recording devices and media that are seized will be submitted within the guidelines of the

Property and Evidence Policy.