BOB GARFIELD:  It’s actually legal to film the police, but you might not know that, since people are arrested for doing it all the time, particularly during the height of last year’s Occupy protests. But that police practice may be on the way out. The Connecticut Senate recently passed a bill that would make it illegal for cops to arrest or otherwise interfere with citizens who film them, provided the citizens aren’t themselves interfering in police business. Mickey Osterreicher is general counsel for the National Press Photographers Association. He supports photographers he believes are wrongfully arrested and gives seminars to police on First and Fourth Amendment rights.

MICKEY OSTERREICHER:  The First Amendment is not absolute. It’s subject to reasonable time, place and manner restrictions. So would it be reasonable for an officer to say to you, if you were standing three feet away while you filming, can you please move back ten feet, or during a demonstration if you were out in the street, can you please get up on the sidewalk and film – that’s a reasonable time, place and manner restriction.

Can he tell you to just stop doing what you’re doing? Can they then seize your phone? They do have a right to seize equipment if they believe that you have recorded evidence of a crime for a very short duration, but they certainly have no right to look at it, without a proper subpoena or a warrant. And they never, ever, ever have the right to destroy the images that are on that phone or camera.

BOB GARFIELD:  None of this talk is hypothetical. There have been a number of cases where citizen video has caught police in varying degrees of mischief, from roughing up a 14-year-old skateboarder in Baltimore, to the shooting in the back of a handcuffed guy on the subway platform in Oakland, a young man named Oscar Grant. This video can reveal a lot, including the most abject police brutality.

MICKEY OSTERREICHER:  I mean, recordings, obviously, are much better than eyewitness testimony. And officers realize that, and many of them are fearful, even though, you know, from my point of view, they shouldn’t be, because if there’s a claim of use of excessive force, of police brutality and the video shows that they acted in a manner to effectuate an arrest, as comports with their training, then that will help support their position that they didn’t do anything wrong.

BOB GARFIELD:  You go to workshops with police. What kind of reception do you get? Do the police report to you that they’ve had the scales fall from their eyes and now, ah-ha, I get it?

MICKEY OSTERREICHER:  They’re pretty skeptical at first. I mean, the look that I’m used to is, who is this guy and why are we gonna have to sit here for a couple of hours and listen to him. I try and engage them in a dialogue and a conversation, and really, at the end of that, I’ve had officers come up to me and ask me different questions about certain scenarios.

I have found, at least in the departments that I dealt with, that the top people are very interested in having proper training for their officers and guidelines.

BOB GARFIELD:  Tell me about the back and forth between the Baltimore Police Department and the Department of Justice over a 2010 case in which cops confiscated a man’s camera and erased its contents. The DOJ sent a letter outlining what it took to be Baltimore’s dubious behavior. Baltimore rewrote its policy, and then the DOJ wrote again. Why did they have to double back to make their point?

MICKEY OSTERREICHER:  The first time that the Department of Justice intervened back in January, they entered what is called a Statement of Interest. And basically the Department of Justice talked about the right of citizens to record, that those rights are consistent with the First Amendment, that citizens have the right to be secure against unreasonable search and seizure. And they basically just sat back to see what the Department would do.

BOB GARFIELD:  In response, the Baltimore Police said, yes, we’ve reviewed our policies, we are giving new instructions to our cops. We promise you everything’s gonna be all better now. [LAUGHS] And then what happened?

MICKEY OSTERREICHER:  They issued a press release letting everybody know that they’d implemented these new guidelines and done training since back in November, and I think that was on a Thursday or a Friday in February.

And literally Saturday night, there’s this video that ended up on YouTube of somebody who was recording about six officers gathered around a person who was lying on the ground. You can see one of the officers looks up and in one fluid motion reaches for her handcuffs, comes up to the photographer, and she and the other officers end up moving the guy down the street, up kind of an alley, continuing to threaten him with arrest for loitering.

  [YOUTUBE CLIP]:

FEMALE POLICE OFFICER:  Walk down the street.

MALE PHOTOGRAPHER:  All right.

FEMALE POLICE OFFICER:  Down the street.

PHOTOGRAPHER:  I – and you, you guys do know you have a standing order –

   [OVERLAP/BOTH SPEAKING]

FEMALE OFFICER:  Sir -

PHOTOGRAPHER:  - to allow people to record it. I – I’m leavin, I haven’t –

FEMALE OFFICER:  Sir –

PHOTOGRAPHER:  What?

FEMALE OFFICER:  I’ve asked you to leave how many times?

PHOTOGRAPHER:  I’m leaving.

FEMALE OFFICER:  Turn around and walk.

PHOTOGRAPHER:  I’m leaving!

FEMALE OFFIER:  Turn around and walk. Give me your ID.

BOB GARFIELD:  And the Department of Justice says, “No, really, you’re not doing this right” and wrote another letter to the Baltimore Police.

MICKEY OSTERREICHER:  Right, and this one is almost a step-by-step connect-the-dots guideline of what they want to see as policies and what they want to see articulated in those policies. And, as far as I know, the Department of Justice has not heard back from the Baltimore Police since that letter.

BOB GARFIELD:  You believe that there’s something else at work here, and that is just the culture of policing, what happens when cops get their game face on. No matter what the law says, what will it take to defeat that culture?

MICKEY OSTERREICHER:  It really is something that’s cultural. I can’t tell you how many times our members in the NPPA have told me of officers coming up to them and putting their hands over their lens.

One of the things that I – I talk about all the time is we see this video coming out of the Arab Spring, most recently out of Syria. People are risking their lives to record tanks in the street and soldiers killing civilians. And they do this mostly on cell phones.  And we look at what we see and think, how heroic. And yet, those same actions on the streets in the United States are looked at as suspect. And I have a real problem with that. And that’s the type of culture I’m trying to change.

BOB GARFIELD:  Mickey, thank you so much.

MICKEY OSTERREICHER:  Oh, my pleasure.

BOB GARFIELD:  Mickey Osterreicher is general counsel for the National Press Photographers Association. 

   [1982 REPLACEMENTS GIG CLIP]:

MPD OFFICER:  Hello. This is the Minneapolis Police. The party is over with. Grab your stuff and go, and nobody goes to jail.