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Do police have the right to confiscate your camera?
by Carlos Miller
Thursday Jan 22nd, 2009 1:07 AM
Seconds after BART police officer Johannes Mehserle shot and killed Oscar Grant, police immediately began confiscating cell phones containing videos that have yet to see the light of day. In fact, the only videos that have been seen by the public were filmed by people who managed to leave the scene before police confronted them.

Seconds after BART police officer Johannes Mehserle shot and killed Oscar Grant, police immediately began confiscating cell phones containing videos that have yet to see the light of day.

In fact, the only videos that have been seen by the public were filmed by people who managed to leave the scene before police confronted them.

In one instance, police chased after Karina Vargas after she stepped on the train, banging on the window and demanding her to turn over the camera. The train sped away with Vargas still holding her camera.

Her video, which did not show the actual shooting but captured the turmoil before and after, was one of the first to pop up on the internet. And soon after more videos popped up showing the actual shooting.

In the most vivid video, the train doors can be seen closing seconds after the shooting as the train speeds away.

The truth is, police had no legal right to confiscate a single camera.

“Cops may be entitled to ask for people’s names and addresses and may even go as far as subpoenaing the video tape, but as far as confiscating the camera on the spot, no,” said Marc Randazza, A First Amendment attorney based out of Florida and a Photography is Not a Crime reader.

Bert P. Krages II, the Oregon attorney who drafted the widely distributed The Photographer’s Rights guide, responded to my inquiry with the following e-mail message:

“In general, police cannot confiscate cameras or media without some sort of court order. One exception is when a camera is actually being used in the commission of crime (e.g., child pornography, counterfeiting, upskirting).”

It didn’t appear that the BART shooting videos were being used in a commission of a crime, so what could people have done to prevent police from illegally confiscating their cameras?

“Probably not a whole lot,” said Randazza. “You don’t want to get into a situation where you are refusing to comply with law enforcement, especially when that law enforcement officer just shot and killed somebody. No camera is worth losing your life over.”

But what can you do if you’re as stubborn as me and have a tendency to refuse unlawful orders?

“Make sure you have an attorney that specializes in First Amendment law,” he said. “Make sure you have his cell phone and home number. Sometimes calling an attorney on the spot can be helpful.”

Needless to say, I now have Randazza’s cell phone number programed into my cell phone.


Comments  (Hide Comments)

by Ben Saari
Thursday Jan 22nd, 2009 7:05 AM
cops get to kill people and then go home with a paid vacation.

of course they can take your camera. it might be illegal but they don't care they police themselves.

that said resistance to abuse is justified and right, you just need to know what the stakes are and who has power
by lucky
Thursday Jan 22nd, 2009 8:25 AM
when the officer tried to take my camera on the 14th there was no calling a lawyer on te spot. the air was tense and i was lucky to get away with my camera. which is virtually unreplaceable for me. my phone would have done nothing but insure i lost my camera and went to jail.
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[ Do police have the right to confiscate your camera?
by Carlos Miller
Thursday Jan 22nd, 2009 1:07 AM

It didn’t appear that the BART shooting videos were being used in a commission of a crime [ -- OF COURSE THEY WEREN'T! -- ], so what could people have done to prevent police from illegally confiscating their cameras?

“Probably not a whole lot,” said Randazza. [ -- WRONGGG! -- ] “You don’t want to get into a situation where you are refusing to comply with law enforcement, especially when that law enforcement officer just shot and killed somebody. No camera is worth losing your life over.” ]


YOU *CAN* DO A WHOLE LOT!:

HAVING SHOT ONE PERSON, IN WHAT THE COPS IMMEDIATELY RECOGNIZED WAS A BAD SHOOTING, THE COPS, EVEN IN ORDER TO TRY TO COVER UP THEIR CRIME, ARE NOT GOING TO START SHOOTING (OR EVEN THREATENING TO SHOOT) *EVERYONE ELSE* IN SIGHT WITH A CAMERA WHO REFUSES TO GIVE THEIR CAMERA TO THE COPS -- IN *PUBLIC*!!

Of course, if a pig cop says, "Give me your camera phone [etc.] or I'll shoot you", or if a pig cop holds a gun to your head or threatens you with a weapon, then of course you give up whatever property he is demanding, and then fight it with an attorney &/or in court.

*ALWAYS* VERBALLY, FIRMLY AND LOUDLY (SO OTHER PEOPLE AROUND YOU CAN HEAR YOU) *REFUSE* (ALTHOUGH DON'T ACTUALLY FIGHT WITH) A PIG COP(S) *DEMANDING* (AND IT *IS* ILLEGAL):

THAT YOU EITHER (1) GIVE UP *ANYTHING* (UNLESS YOU HAVE USED IT IN THE COMMISION OF A CRIME &/OR YOU ARE UNDER ARREST), OR (2) CONSENT TO A SEARCH, WITHOUT A WARRANT.

The pig cop might ignore you and take your item or search by force or threat of force, but you will be in a much better position in a court of law than if you were verbally intimidated (but not physically threatened) by said pig cop into voluntarily giving up your property or consenting to an invasive (under/in your clothes and property) search (other than a pat-down search, under certain circumstances, *if* (a.) you're being officially detained [if in doubt, *ask* the pig if you're being detained]; or (b.) a casual visual search if you have or are doing something illegal in plain sight in your car, or on your person, or within plain sight of an open door or large window of your house or office; or, (c.) of course, a more thorough search of your clothing, if you are arrested). But, the courts *don't legally count* your being verbally intimidated (unless you are physically threatened) by a cop into your voluntarily giving up your Constitutional rights.

If a pig cop can see that you know your Constitutional rights regarding searches & seizures, you have greatly *lessened* -- even if not totally eliminated -- the probability that said pig cop will abuse or violate your Constitutional rights.

If you *voluntarily* agree to a property confiscation or an invasive search without warrant or unless you are under arrested, then the cop will be *encouraged* through your lack of knowledge of your basic rights, to further *violate* your rights. That could *increase* your exposure to police abuse, further illegal searches, being arrested, being indicted, and even being convicted for some trumped-up "crime" that said pig cop wants to nail you for.

IF/WHEN IN DOUBT, FIRMLY VERYBALLY *REFUSE* a suspected/questionably illegal search or property seizure, but don't resist being physically forced, by a cop (or FBI agent, etc.) -- and then deal with it later with a consulted or representing attorney &/or in court.

Consult a *qualified* attorney (e.g., a criminal law attorney qualified in this area) or COPWATCH (or attend one of their workshop sessions) for more information.

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by Sandy Sanders
Thursday Jan 22nd, 2009 9:52 AM
I carry my NLG demonstration rights card with me everywhere I go. Maybe we need a Right to Bear Camera Card. Maybe we need some lawyers to publish confirmation of the fact that police are not allowed to confiscate a camera without a warrant, then get BART Police and all local Police Departments to publish statements that non-criminal camera use, like the documentation of an event, is protected constitutional citizen behavior. This should become common knowledge for all citizens and when they see cops confiscating cameras, they should all pull out their cameras and document that!
by .
Thursday Jan 22nd, 2009 10:34 AM
It is a tricky legal issue. It seems like police shouldn't be able to take anything at all, unless it is a tool of a crime. However, police may compel witnesses to testify to a crime. Indeed, if someone fails to report a crime they witnessed, can't this be used against them in some way? But taking recording evidence isn't legitimate - they should take down their name and address.

http://www.youtube.com/watch?v=kBeB81PPlng

http://www.youtube.com/watch?v=7L8nukbwopo
by a TG person
Thursday Jan 22nd, 2009 10:35 AM
Never ever give up your camera or cell phone to any cops.(period) And you don't need no stinkin lawyer to help either.
The fact that a BART cop chased after someone with one, is indicative of a larger problem. The police are uneducated....
I have been in many situations where the cops and the FBI demand footage. They must have a warrant to confiscate, and or a Grand Jury must be in progress somewhere over the incident for the Feds to be able to confiscate cameras.
No offense cameras are no good unless they have good footage. Footage can be erased, deleted etc, but never delete or get rid of the footage yourself. Thats where lies come into play. Sure someone could say it's against the law to lie to the Feds, but guess what so is shooting a young adult in the back, but yet that happened.
Its called "Lie and Deny."
I hope that young lady who was chased down on BART got that on video.
I wonder if the rest of those BART cops who were involved with the OG crime are still working for BART? If so then that is reason enough to carry cameras on BART all the time because it's just a matter of time before another incident like that one will take place again, and we are gonna need cameras on that system. It's obvious BART cameras don't work, so it will be the citizens who once again will SAVE the day and maybe a life.
by ianal
Thursday Jan 22nd, 2009 10:53 AM
. wrote, "Indeed, if someone fails to report a crime they witnessed, can't this be used against them in some way?" Misprision of felony requires active concealment of a known felony rather than merely failing to report it. See United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977) at 1227, "The mere failure to report a felony is not sufficient to constitute a violation of 18 U.S.C.A. § 4."
by .
Thursday Jan 22nd, 2009 11:44 AM
In this incident in Berkeley, the man in the blue sweatshirt has his camera confiscated while taking photos of police arresting a boy who was doing graffiti on parking meters. The police took the film from the camera and then released him from the car half an hour later.

http://www.indybay.org/newsitems/2002/05/04/1262021.php?show_comments=1
by JA
Thursday Jan 22nd, 2009 1:21 PM
[ confiscation
by .
Thursday Jan 22nd, 2009 10:34 AM
It is a tricky legal issue. It seems like police shouldn't be able to take anything at all, unless it is a tool of a crime. However, police may compel witnesses to testify to a crime. Indeed, if someone fails to report a crime they witnessed, can't this be used against them in some way? But taking recording evidence isn't legitimate - they should take down their name and address. ]


IT AIN'T NOTHIN' "TRICKY" ABOUT IT.

IF YOU ARE NOT UNDER ARREST, IN THE PROCESS OF COMMITING A CRIME, HAVE SOMETHING OPENLY AND OBVIOUSLY ILLEGAL ON YOUR PERSON OR PROPERTY, OR THE PIGS DON'T HAVE A WARRANT (WHICH MUST BE *SPECIFIC*, IF IT'S A SEARCH WARRANT), THEY CANNOT LEGALLY ORDER YOU TO GIVE UP *ANYTHING*

-- OR, WITHOUT ARREST OR WARRANT [DON'T] LET THEM SEARCH *ANYTHING* (OTHER THAN AN OVER-THE CLOTHES PAT-DOWN -- WITH REASONABLE CAUSE -- IF YOU ARE BEING OFFICIALLY DETAINED): OTHERWISE THE PIGS MIGHT ACTUALLY *PLANT* SOMETHING ON YOU OR YOUR PROPERTY.

(It didn't use to be so, but now, in certain states/cases, under certain conditions, our increasing police state allows the pigs/feds to go into and/or search "unattached" garages, storage sheds, outdoor office sheds, and other nondwelling structures, on your property without a search warrant. Again, consult a *qualified* attorney to know your rights against currently "improper/illegal" search and seizures under the laws of your state.)

AND EVEN IF THEY ARREST YOU AND TAKE YOUR PHONE, UNLESS IT WAS USED IN THE COMMISSION OF A CRIME, THE PIGS DON'T HAVE THE RIGHT TO *LEGALLY* SEARCH IT WITHOUT A SPECIAL WARRANT SPECIFYING EXACTLY WHAT THEY'RE SEARCHING FOR ON IT. BUT, OF COURSE, THEY PROBABLY WILL, AND DESTROY/DELETE ANY EVIDENCE AGAINST THEM.

*REFUSE* TO CONSENT -- FIRMLY AND LOUDLY SO OTHERS CAN HEAR YOU.

DO NOT BE VERBALLY INTIMIDATED OR **TRICKED** INTO GIVING UP YOUR CONSTITUTIONAL RIGHTS (AND POSSESSIONS LIKE YOUR CELL PHONE OR DIGITAL CAMERA).

IF YOU'RE NOT UNDER ARREST, OR NOT COMMITING A CRIME, DON'T HAVE SOMETHING OPENLY ILLEGAL, AND THE PIGS WANT TO TAKE SOMETHING FROM YOU BY *FORCE* WITHOUT A WARRANT, THEN THAT'S ANOTHER THING -- AND THEN YOU CAN DEAL WITH THAT IN COURT AND MAYBE EVEN SUE THE PIGS.

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ALSO, THE PIGS *CANNOT* LEGALLY FORCE ANYONE TO TESTIFY TO/ABOUT A CRIME: ONLY A *COURT/SUMMONS/SUPEONA* CAN DO THAT. AND, EVEN THEN, YOU HAVE A RIGHT NOT TO POTENTIALLY INCRIMINATE YOURSELF.

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ALSO, *NO ONE* (NO CIVILIAN) HAS ANY, WHAT THE LAW WOULD CALL, "AFFIRMATIVE OBLIGATION" -- MEANING LEGAL REQUIREMENT -- TO "REPORT A CRIME THEY WITNESSED".

WHETHER YOU "REPORT A CRIME" OR NOT IS *YOUR* BUSINESS.

AND IF YOU DON'T "REPORT A CRIME", IT CANNOT "BE USED AGAINST YOU IN SOME WAY".

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FINALLY, IF YOU ARE NOT BEING OFFICIALLY DETAINED -- AND IF IN DOUBT, *ASK* THE PIG, "AM I BEING OFFICIALLY DETAINED" -- OR ARE NOT UNDER ARREST, YOU DON'T HAVE TO TELL THE COPS *SHIT*:

YOU DON'T HAVE TO GIVE THEM YOUR NAME, YOUR ADDRESS, *NOTHING*, *NADA*, *SHIT*.

YOU JUST TELL THE COP (UNLESS YOU *WANT* TO TALK TO THEM), THAT, "IF I'M NOT BEING OFFICIALLY DETAINED OR ARRESTED, THEN I'VE GOT *NOTHING* TO SAY TO YOU. PERIOD."

(AND YOU DON'T HAVE TO TESTIFY TO *ANYTHING* OR GIVE THE POLICE *ANY* STATEMENTS EVEN AFTER YOU'RE ARRESTED, AND YOU SHOULDN'T WITHOUT THE ADVICE OF AN ATTORNEY:

YOU PROBABLY DO HAVE TO CREDIBLY IDENTIFY YOURSELF &/OR PROVIDE IDENTIFICATION -- AND IT'S REQUIRED, FOR EXAMPLE, IF YOU'RE THE VEHICLE OPERATOR IN A TRAFFIC STOP.)

AND UNLESS YOU'VE SUMMONED A PIG, OR *WANT* TO REPORT A CRIME, OR CALL FOR WHAT YOU THINK WILL BE ASSISTANCE:

IT'S BEST NOT TO SAY *NOTHING* TO THE PIGS -- OR YOU MIGHT THEN *FIND* YOUR ASS DETAINED, OR ARRESTED, *FRAMED*, OR INDICTED FOR SOME CRIME LATER, UNDER SOME EXCUSE THE PIGS TRUMP-UP!

DON'T GIVE THE PIGS AN EXCUSE TO DO *NOTHING* IF YOU ARE NOT BEING DETAINED, ARRESTED, GIVEN A SEARCH WARRANT, HAVE SOMETHING ILLEGAL IN PLAIN SIGHT, OR COMMITING A CRIME.

THE MORE YOU KNOW AND STAND UP FOR YOUR RIGHTS, THE BETTER OFF YOU'LL BE WHEN IT COMES TO THE PIGS;

THE LESS YOU KNOW AND STAND UP FOR YOUR RIGHTS, THE *WORSE* OFF YOU'LL BE WHEN IT COMES TO THE PIGS.

AND, ESPECIALLY, EVERY PERSON OF COLOR AND EVERY PROGRESSIVE POLITICAL ACTIVIST SHOULD KNOW THEIR CURRENT LEGAL RIGHTS.

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AGAIN, CONSULT A *QUALIFIED* ATTORNEY (I.E., ONE *QUALIFIED* TO ADVISE YOU ABOUT THIS), OR COPWATCH (AND ATTEND ONE OF THEIR WORKSHOPS), OR CARRY A LEGALLY CURRENT "KNOW-YOUR-RIGHTS CARD" (THAT COPWATCH AND OTHER RIGHTS ORGS CAN PROVIDE) AND *READ* IT -- OFTEN -- BEFOREHAND.

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by J Wilson in Tx
Friday Jan 23rd, 2009 8:49 PM
Agreed. When engaged by a cop, keep your mouth shut. Don't engage in "friendly" conversation. Always, always, always remember....the cops are not your friends!
I don't get a ticket. I often read comments about Russian or Chinese infringements against human rights.

Isn't it disgusting that you allow the police in the supposed "land of the free" acting up like this? I'm not a friend of violence but I welcomed the violent protest in Oakland. Somebody has to show the people that this is not Nazi Germany, Stalin's Soviet-Union.

Why put up with the fact that US runs the largest prison system on Earth? 70% of the inmates are in for drug abuse or minor things like parole abuses.

You better get elbows or you will face more violent crime from your own police all paid by your tax payers money.

In Europe we read: Protest 1200 policemen were injured, but only 300 citizens. That is the right relation.

Free yourself from the fascism and start to learn to argue.
by Criminals On Patrol COPS and Death Squads
Sunday Jan 25th, 2009 3:02 AM
Of course they don't have that right. But that won't stop them from doing it. That's why they're called COPS (Criminals On Patrol). How many other Oscar Grants are the Deaths Squads that call themselves COPS (Criminals On Patrol) hiding? With the help of the IAD aka the Janitors who sweep the City's Dirt, the COPS (Criminals On Patrol), under the rug. Along with the DA and Dept. of "Justice".
by Ed
Monday Jan 26th, 2009 12:32 PM
"Rights? You don't have no stinking rights!"
There is a reason why police officers are now required to recite a minimal statement of prisoner's rights (Miranda warning) once they have placed someone under arrest. Even then arrested people tell the police more than they should in the hope of securing better treatment.
There is always the threat of being arrested for "obstructing justice" or "failure to comply with a reasonable request by the officer" when the officer requests your identity or your reason for being present and you do not comply.
You may respectfully ask "Am I under arrest?", and if the response is negative ask "Then am I free to go?". Repeat as necessary.
Unless you have a witness present more credible than the police officer willing to testify on your behalf such as an attorney or a judge, you may still have problems.
by Anonymous Coward
Tuesday Jan 27th, 2009 11:25 PM
Don't the people have a right to document police actions?

Two or more police officers who attempt to secure their videos and or pictures might be just collecting evidence, or they might be engaged in a conspiracy against their rights.

US Code TITLE 18 > PART I > CHAPTER 13 > § 241 § 241. Conspiracy against rights

"If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or ... "They shall be fined under this title or imprisoned not more than ten years, or both; ..."
by LaFuentes Monaco
Wednesday Jan 28th, 2009 1:20 AM
Yes it is easy to justify confiscation of cameras as equipment being used in the commission of an offence.

Where a police officer perceives that a bystaders use of a camera is itself inciting violence or a civil disturbance, that camera can be confiscated. For example, filing a scene can encourage violent elements to carry out their acts in front of the camera so as to provoke police.
by troy patterson
Wednesday Jan 28th, 2009 1:32 AM
My family has very strong ties in the system as lawyers. Beat the shit out of every cop that took those cell phones. End of story. There is no debate. Teach-them-a-lesson-. Enough is enough. Troy Patterson
by slapper
Wednesday Jan 28th, 2009 8:25 AM
or you could carry a spare junk cell phone. and hand that one over.
by Jack
Friday Feb 6th, 2009 12:19 PM
Carlos Miller has no sources in this story that police were taking cameras. It's just rumor. Let's see some actual sources before we raise the roof.