Almost everyone has a camera phone these days – a handy tool for capturing timeless memories. But the proliferation of camera phones and CCTV cameras also has a valuable law enforcement function – increasing the likelihood of those acting outside the law getting caught, including police officers.
We’ve written plenty of blogs about the law when it comes to filming police in NSW. Filming police in public is perfectly legal, provided that you do not hinder the exercise of their duties. In fact, filming police is often the best defence against unscrupulous officers using heavy-handed tactics or otherwise acting outside the law.
But the law doesn’t deter all officers from trying to prevent people from recording, with police frequently directing members of the public to stop filming, or even confiscating their phones and deleting the footage.
As reported in a previous blog, a couple visiting Queensland in November last year had an unpleasant encounter with police shortly after leaving the airport in a hire car. Police pulled the pair over simply because of a tattoo on the man, not because of anything he had done. The man then started to film the encounter. Police requested his partner’s driver licence, as she had been driving the car. The woman respectfully complied with that request. Police then asked the man for his driver licence, and he also complied. But while in the process of handing his licence over, one of the two officers took the extraordinary measure of tasering him. It was an astonishing act given that the man was calm and compliant throughout the incident, and was merely doing as he was told.
Police then gave the man an ultimatum: either hand over your phone so we can delete the footage, or we’ll confiscate both your phone and that of your partner. He chose to hand his phone over and police deleted the footage. Unfortunately for police, the man later recovered the footage from a ‘deleted items’ folder and posted it on Facebook, where it went viral.
Police officers who unjustifiably confiscate phones or delete footage are committing a trespass to property, which is against the law.
In some circumstances, police will claim that the confiscation was in order to preserve evidence of a crime – after which the footage will magically disappear.
In response to such illegal conduct, some parts of the United States are taking steps to prevent officers from interfering with the public’s right to film encounters with law enforcement.
Police to Face Hefty Fines
Colorado has recently proposed a law whereby police officers who try to take cameras or destroy footage without a warrant, or who retaliate against those filming an encounter, face a civil fine of $15,000 – payable by the officers themselves rather than by the taxpayer.
Democrat Senator Joe Salazar says the Bill was drafted as a result of police routinely confiscating phones, deleting footage and even threatening members of the public, calling such conduct “unacceptable.”
Recent incidents of police brutality and other forms of misconduct have led to protests in several parts of the United States. One such demonstration occurred after the arrest of an alleged shoplifter in a Walmart store. In that case, police demanded the camera of an innocent bystander who was filming the heavy-handed encounter. Police then snatched the camera from the bystander’s hand, arrested him and placed him in handcuffs!
Not surprisingly, a spokesperson for the Colorado Association of Chiefs of Police has criticised the Bill, calling it unnecessary because people can take matters to court themselves if they feel wronged: “There’s already an existing process… I don’t think it’s appropriate to legislate penalties.”
However, that statement ignores the fact that most people can’t afford the legal costs associated with taking matters through the civil courts themselves – let alone to fund a formidable legal team rivaling that which is at the disposal of police. And those who can afford the costs, and have the time and energy to pursue such proceedings, may be deterred by the prospect of paying the relevant Police Department’s legal costs if the action is unsuccessful.
Should NSW Have Similar Laws?
We will have to wait and see whether the proposed Colorado bill becomes law; but in the meantime, it is worth considering whether similar laws should be introduced in NSW.
Keeping police accountable in NSW can be extremely difficult. As discussed in previous blogs, although there are avenues of complaint – including internal complaints to the NSW Police Force itself and to the under-resourced NSW Ombudsman – it is extremely rare for NSW police officers to be charged with criminal offences, even if there is clear evidence of a crime.
And in cases where civil proceedings are brought for police misconduct, and those proceedings are successful, it is almost invariably the taxpayer that foots the bill – not the misbehaving officers themselves.
Perhaps the prospect of a fine issuable by an external body such as the Ombudsman might act as some form of deterrent against police officers illegally confiscating phones and deleting footage. That fine could be enforced by the State Debt Recovery Office (SDRO), like other public fines in NSW.