In settling an ACLU-NCA case, the D.C. Metropolitan Police Department issued a groundbreaking new General Order explicitly recognizing that “members of the general public have a First Amendment right to video record, photograph, and/or audio record MPD members while MPD members are conducting official business or while acting in an official capacity in any public space.” The order reminds officers that such activity “does not constitute suspicious conduct,” and instructs officers that they “shall not . . . in any way threaten, intimidate or otherwise discourage an individual from recording members’ enforcement activities.”
The ACLU-NCA today closed the case of Jerome Vorus v. District of Columbia, which challenged the detention of a sidewalk photographer by D.C. MetropolitanPolice Department officers who had claimed that it was illegal to take pictures of officers without prior authorization from the MPD public information office, and illegal to audio-record officers without the officers’ consent. The Police Department agreed to pay Mr. Vorus an acceptable sum of money for his detention, and more important — to Mr. Vorus as well as to the ACLU — the Department issued the new General Order quoted above.
The most delicate question addressed by the settlement was what to do when the police believe that a recording device contains evidence that may be important in a criminal investigation (including an investigation of police misconduct)? The government has a right to the evidence, but a person shouldn’t lose his camera or cell phone — perhaps for months — just because he took a photo. The ACLU proposed a creative solution which the Police Department accepted: “Where possible and practicable, and in the presence of the [officer, the civilian may], voluntarily transmit the images or sound via text message or electronic mail to the member’s official government electronic mail account.” That way the police get the evidence but the civilian retains his camera or phone. We hope this will eliminate the need for most seizures of cameras. Where this is not possible (for example with a camera that’s not connected to the Internet), and the civilian won’t voluntarily agree to turn over the chip, only a very senior police official can make the decision to seize a recording device, and the police must obtain a search warrant from a judge before viewing photographs or listening to recordings.
We hope this General Order will become a model for police departments elsewhere.