By Robert C. Phillips, Deputy District Attorney (Ret.)
Updated: September, 2022
The Question:
I am periodically asked whether officers can legally seize from private citizens videotaped or photographed evidence depicting criminal acts. Such videos or photos are commonly contained in a private citizen’s video camera, cellphone, or iPad. The video or photographic evidence typically is recorded by an uninvolved private citizen (although it may be the suspect himself) who either happened upon the scene of some incident or is a participant in a public protest or demonstration. The video or photo may be of a criminal act in progress or of an officer’s use of force upon a suspect, or both.
The question I get is; “If the citizen objects, can I legally seize such photographic, video or tape-recorded evidence anyway?” My answer to this question has for a long time been: “I haven’t the faintest idea.” But recently, we finally got a case on point that describes what we can do legally in such a circumstance.
Related to this problem is when a person is discovered videotaping or photographing the entrances or exits to a police facility or some on-going police activity. The temptation is to stop that person and find out what he is doing and why, or even impede the person in his videotaping efforts.
Plaintiff Abade Irizarry, a self-proclaimed YouTube journalist, and others, attempted to use their cellphones to videotape a police DUI stop in the City of Lakewood, Colorado. An officer involved in the stop, Ahmed Yehia, took offense to this and attempted to impede Irizarry’s videotaping efforts by shinning a bright light into his cellphone/camera and “gunning” his patrol car directly him (and the other photographers), blasting an air horn as he did so. Irizarry sued in federal court, alleging a violation of his First Amendment rights. The federal district (trial) court threw the case out, ruling that because this issue was not a settled area of the law, the officer was entitled to qualified immunity. The Tenth Circuit Court of Appeal reversed, finding that the right of a private citizen to film police “falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power.” The case is Irizarry v. Yehia (10th Cir. July 11, 2022) 38 F.4th 1282. If you’re interested, I have a complete article on this issue (plus the issue of an officer’s authority to confiscate a private person’s videotape that may be evidence of an ongoing criminal act), which I will make available upon request.
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