635.20, Community Member Observation of Police
Refer:
- ORS §165.540(5)(b)(A)-(D) Obtaining contents of communications
- ORS §161.015 General Definitions
- DIR 631.35, Press/Media Relations
- DIR 650.00, Search, Seizures, and Inventories
- DIR 652.00, Search Warrants
- DIR 660.10, Property and Evidence Procedures
Definitions:
- Faraday bag: A bag that ensures portable digital devices are secure from any external interceptions, and prevents remote wiping of information, tracking, and bugging.
- Media: Storage source for visual or audio recordings, whether by film, analog, or digital means.
- Recording: Capturing of visual images, or sounds, including spoken words that are normally audible, or both, by means of a video camera, cell phone, audio recorder, or other device.
- Seizure: Significant interference with a person’s possessory or ownership interests in property.
Policy:
1. This policy provides guidelines for handling situations in which members of the public observe, photograph, video or audio record members of the Portland Police Bureau performing official duties. Members should assume they are being audio or video recorded at all times when on duty in a public place.
2. All persons have rights under state and federal law to observe and record police officers performing official duties, so long as that person’s actions do not interfere with the member’s duties or the safety of members or others, are consistent with reasonable restrictions, do not amount to criminal trespass, or otherwise violate the law.
3. Persons may observe or record from any public place or any private property where the person has the legal right to be present. However, this directive does not give any person permission to impede the flow of vehicular or pedestrian traffic or to disregard reasonable restrictions. Members shall not prohibit or intentionally interfere with lawful observations or recordings except as provided in this directive. Any recordings that are deemed to be evidence of a crime or relevant to an investigation shall only be collected, seized, or viewed in accordance with this directive and state and federal law.
Procedure:
1. Observing or Recording Law Enforcement Activity.
1.1. The right of persons to observe or record law enforcement activity is not absolute and is subject to reasonable time, place, and manner restrictions. Examples of such time, place, and manner restrictions include, but are not limited to:
1.1.1. Establishing a perimeter beyond which persons may not go;
1.1.2. Requiring a person to keep a specified amount of distance between themselves and the persons or objects they seek to observe or film; or
1.1.3. Requiring a person to observe or record from a location that does not interfere with police operations; or
1.2. While observing or recording, persons cannot interfere with law enforcement activity. Examples of interference may include, but are not limited to:
1.2.1. Intentional and persistent attempts to distract or communicate with a witness or suspect with whom the police are speaking or engaging;
1.2.2. Direct physical intervention or breaching the specified amount of distance established by a member;
1.2.3. Repeated attempts to engage a member with questions or interruptions, thereby dividing the attention of the member to the matter at hand;
1.2.4. Intentionally impeding the movement of emergency equipment or personnel;
1.2.5. Inciting others to violate any law or any lawful command; or
1.2.6. Any action by the person that jeopardizes the safety or security of a member, victim, witness, suspect, or third party.
2. Member Response.
2.1. Members may require a person recording police activities to maintain a reasonable distance from that police activity. Members shall consider the totality of the circumstances regarding the particular police activity in establishing a reasonable distance. Members shall not establish or increase a distance for the sole purpose of discouraging or interfering with the lawful recording or observation of police activities. Members are allowed to establish a distance that reasonably protects the privacy of any verbal communication between or among members, victims, witnesses, suspects, or third parties for their safety and the safety of members and others.
2.2. Whenever practical, members should give clear and concise warnings to persons recording police activities when the person’s behavior is unlawful, Accompanying the warnings, whenever practical, a member should give clear directions on what a person can do to be compliant and continue recording. For example, rather than simply directing a person to “clear the area,” a member should advise the person from where or at what distance the person may continue lawfully recording or observing the law enforcement activity.
2.3. In the event a person’s observation or recording continues to interfere with law enforcement activities or a member believes that the recording(s) may contain evidence of or information concerning the commission of a Measure 11 offense, when practical, the on-scene member shall request that a supervisor respond to the scene.
2.3.1. Under exigent circumstances, a member may take action to stop a community member from recording prior to communicating with their supervisor and shall document in their report articulable reasons for doing so. Members will notify a supervisor as soon as practical after the exigency is resolved.
3. Seizing and Viewing Recordings.
3.1. Members may not order or coerce a person to show them recordings that have been made of law enforcement activities. But members may ask persons for consent to seize and view recordings.
3.2. Seizing recordings and media.
3.2.1. Members may seize recording devices and media if:
3.2.1.1. The person recording consents to the seizure;
3.2.1.1.1. A member obtaining consent shall have the person consenting fill out the written voluntary consent form and attach it to their report; or
3.2.1.2. Exigent circumstances exist to seize the recording device or media. Exigent circumstances require probable cause to believe the recording device or media contains evidence of or information concerning the commission of a Measure 11 offense, and the member must objectively believe that immediate seizure is necessary to prevent the destruction or tampering of such evidence contained on the recording device or media. The fact a recording device or media is capable of being deleted does not by itself create an exigency justifying a seizure.
3.2.1.2.1. Members shall inform their supervisor of their action to seize a device as soon as practical.
3.2.1.3. If there are no exigent circumstances, but there is probable cause to believe the recording device or media contains evidence of or information concerning the commission of a Measure 11 offense, the member must contact the Multnomah County District Attorney’s Office and request it to issue a Subpoena Duces Tecum to seize the recording device or media.
3.2.2. Members should protect seized recording devices and media from remote access, such as through the use of a Faraday bag, to ensure legal viewing at a later time.
3.3. Viewing recordings or information contained on recording devices and media.
3.3.1. Members may view recordings or information contained on seized devices and media if:
3.3.1.1. The person recording consents to the viewing;
3.3.1.2. The person recording possesses the recording device when arrested and is charged with a crime, and the member obtains a search warrant based on probable cause to view and duplicate the recording device’s media; or
3.3.1.3. Exigent circumstances exist requiring the immediate viewing, for example, to prevent death or serious physical injury to a person.
3.4. The owner of any surrendered or seized device or media must be given a property receipt.
3.5. All instances of viewing and/or seizing recordings should be documented in an appropriate police report.
4. Return of Recording Device.
4.1. The recording device and its media should be held in police custody no longer than reasonably necessary for the police to obtain and execute a search warrant. The recording device and its media should then be returned promptly to the device’s owner in accordance with Directive 660.10, Property and Evidence Procedures.
History:
- Originating Directive Date: 10/21/2016
- Last Revision Signed: 1/30/2019
- Effective Date: 3/1/2019
- Next Review Date: 3/1/2021