When Mickey Osterreicher, general counsel for the National Press Photographers Association, last visited Dallas in October, local law enforcement seemed damn near progressive in its approach to dealing with citizen photographers. Dallas police and the Dallas County Sheriff's Office didn't just encourage officers to attend the seminar he'd helped organize, "The Right to Photograph and Record in Public," they hosted the event. Everyone, from high-ranking DPD officials to frequently standoffish police union officials like Dallas Police Association President Ron Pinkston, appeared to accept the notion that citizens are — and should be — legally allowed to shoot videos and photographs of cops performing their public duties. Matter of fact, Osterreicher was told, DPD was preparing to enshrine citizens' right to photograph in its policy manual.
On Tuesday evening, seven months after the kumbaya seminar, DPD finally released the promised policy. Osterreicher reviewed it this morning. It is, he says, utterly terrible. Possibly worse than having no policy at all.
"I'm extremely disappointed in the general order that they actually released, which is one page and, unfortunately, I think will not provide officers with the direction that they need nor explain to them why both citizens and journalists have the right to photograph," he said Wednesday.
The awfulness of the policy, which we'll detail in a moment, is puzzling because an earlier draft version of the rule, General Order 331, was actually quite good. (The draft, which neighborhood activist and frequent cop-recorder Avi Adelman obtained through an open records request, is posted below) Not perfect, Osterreicher says, but a very solid "step in the right direction." It ran to almost four pages and spelled out in detail the very limited circumstances in which officers can interfere with a photographer. The new version, by contrast, strips away most of the specifics, essentially leaving it to individual officers to decide what constitutes interference with their duties.
The changes are subtle but significant. Take the introduction. In the draft version the rule specifies that (emphasis added):
...so long as the person's location, actions, and/or behavior do not create a legitimate, articulable threat to officer safety, or an unlawful interruption, disruption, impediment, or interference to successful performance of the police officer's duty or exercise of authority.
In the final version, the "legitimate, articulable threat" is gone, as is a key adjective, "unlawful."
...so long as the person's locations, actions, and/or behavior do not interrupt, disrupt, impede, or otherwise interfere with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.
In the former case, it's pretty clear that an officer can't shoo off a photographer whose presence he found distracting. The language in the latter is much mushier, as it seems like an officer could credibly claim that an annoying photographer is interfering with his duty. Similarly, the draft version spelled out exactly six circumstances in which an officer can prevent a bystander from filming:
As a result, officers must understand that any bystander has a right to photograph and/or video/audio record the enforcement actions of any police officer so long as the bystander's actions do not:
A. Place the safety of the bystander, or of any Police Officer(s), witness(es), victim(s), or suspect(s), in jeopardy;
B. Interrupt, disrupt, impede, or interfere with the execution or performance of an officer's official duties.
C. Interfere with, or violate any law, ordinance, or code;
D. Involve an intrusion into any crime scene, private property, or other location under lawful police control and/or not normally accessible to the general public;
E. Threaten, by words or actions, other person; or
F. Attempt to incite an immediate breach of the peace or incite others to commit a violation of the law.
Again, the language is pretty clear and, again, the language in the final version is a subjective mush:
As a result, officers must understand that any bystander has a right to photograph and/or video/audio record the enforcement actions of any police officer so long as the bystander's actions do not interrupt, disrupt, impede, or otherwise interfere with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.
And we haven't even gotten to the language that was simply deleted, starting with this paragraph:
In and of themselves, the acts of observing, photographing, and/or making a video/audio recording of any police activity that occurs in a public setting are not criminal offenses. On their own, these acts DO NOT constitute probable cause for the arrest of the observer/bystander, and DO NOT provide any justification whatsoever for any officer of the Dallas Police Department without a Search and Seizure Warrant or other appropriate court order, to review, seize, damage, erase, or otherwise inspect the contents of a person's camera or video/audio recording device.
Also gone is two pages further detailing when and how officers can interfere with photographers or seize cameras (almost never), including an entire section entitled "Officer Responsibilities," which, among many other things, prohibits officers from shining a flashlight in an bystander's camera to keep him from getting a picture.
It's fair to wonder why all the missing language disappeared. Given that the Dallas Police Association has been aggressively lobbying for a state law restricting citizens' right to photograph and, er... educating policymakers and journalists on the danger posed by cop watchers, some sort of behind-the-scenes arm-twisting by police unions seems likely, but who knows. Pinkston, the DPA president, declined to comment and DPD hasn't yet made anyone available to talk about the new rules or their evolution.
It's also fair to wonder whether the changes matter. After all, the new policy still says that people have the right to photograph cops, and that the right can only be abridged in limited circumstances. Who cares if there's an A-F enumeration of what constitutes stepping over the line? But policies such as this serve two primary functions: One, they communicate to officers the expectations and constraints for handling certain situations; if the policy says filming is generally OK but doesn't clearly stipulate that an officer can't shine a flashlight in a camera, then some officers will probably shine flashlights in people's cameras. Two, the department's policies provide a framework for disciplining officers. If the rules are hopelessly vague, then it's hard to punish anyone who breaks them.
"You can't discipline an officer without a policy," Osterreicher says. "Based on this policy I don't see where, no matter what an officer does, that there would be any discipline at all that would stick."
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For reference, here is the draft policy:
And here is the final policy: