Fairfax County Police have issued a statement clarifying that officers may not prohibit citizens from photographing police activity, except under certain narrowly defined conditions.
The new policy, issued last month, states that anyone has the right to “observe, photograph, or record police activity in an area accessible to, or within view of the general public.” It was “proactively created and implemented to ensure the protection of everyone’s First, Fourth, and Fourteenth Amendment rights,” the department said in a blog posting.
The policy covers “anyone who might record police activity, whether it be something they see as a passerby or a direct interaction with an officer,” the posting said. The new policy — General Order 603.1 — is based on a guidance letter issued by the U.S. Justice Department in the Christopher Sharp v. Baltimore City Police Department case.
Key points of the order include:
- Anyone has the right to “observe, photograph, or record police activity in an area accessible to, or within view of the general public.”
- Officers shall not inform or instruct anyone that recording police activity, if within their legal right, is prohibited nor shall officers otherwise obstruct the ongoing recording.
- The filming of such activity may not interfere with officers engaged in the public discharge of their duties, jeopardize their or others’ safety, violate the law or incite others to violate the law.
- If officers feel the recording is interfering with the performance of their public duties or poses a safety hazard for the person recording or anyone at the scene, an officer may request or redirect that person to a safer location, while still respecting their right to film in the public domain.
- Should a person who is recording be found in violation of a criminal law (e.g., obstructing an investigation, disregarding an established crime scene perimeter), they may be subject to criminal charges.
- If a person who is filming police activity also capture evidence of a crime being committed, an officer is likely to request from the person filming that they voluntarily provide them a copy of it or allow the officer to temporarily take custody of the phone for evidentiary purposes. It is with rare exception that an officer may seize a recording device without consent from its owner; the policy provides specific instruction to officers.