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Do police have the right to confiscate your camera?
Carlos Miller ^ | 21 Jan 2009 | Carlos Miller

Posted on 01/26/2009 7:36:02 AM PST by BGHater

Seconds after BART police officer Johannes Mehserle shot and killed Oscar Grant, police immediately began confiscating cell phones containing videos that have yet to see the light of day.

In fact, the only videos that have been seen by the public were filmed by people who managed to leave the scene before police confronted them.

In one instance, police chased after Karina Vargas after she stepped on the train, banging on the window after the doors closed and demanding her to turn over the camera. The train sped away with Vargas still holding her camera.

Her video, which did not show the actual shooting but captured the turmoil before and after, was one of the first to pop up on the internet. And soon after more videos popped up showing the actual shooting.

In the most vivid video, the train doors can be seen closing seconds after the shooting as the train speeds away.

But the truth is, police had no legal right to confiscate a single camera.

“Cops may be entitled to ask for people’s names and addresses and may even go as far as subpoenaing the video tape, but as far as confiscating the camera on the spot, no,” said Marc Randazza, A First Amendment attorney based out of Florida and a Photography is Not a Crime reader.

Bert P. Krages II, the Oregon attorney who drafted the widely distributed The Photographer’s Rights guide, responded to my inquiry with the following e-mail message:

“In general, police cannot confiscate cameras or media without some sort of court order. One exception is when a camera is actually being used in the commission of crime (e.g., child pornography, counterfeiting, upskirting).”

It didn’t appear that the BART videos were being used in a commission of a crime, so what could people have done to prevent police from illegally confiscating their cameras?

“Probably not a whole lot,” said Randazza. “You don’t want to get into a situation where you are refusing to comply with law enforcement, especially when that law enforcement officer just shot and killed somebody. No camera is worth losing your life over.”

But what can you do if you’re as stubborn as me and have a tendency to refuse unlawful orders?

“Make sure you have an attorney that specializes in First Amendment law,” he said during Monday’s phone interview. “Make sure you have his cell phone and home number. Sometimes calling an attorney on the spot can be helpful.”

Needless to say, I now have Randazza’s cell phone number programed into my cell phone.


TOPICS: Government; Hobbies
KEYWORDS: 4a; bart; bluewallofsilence; camera; cellphone; donutwatch; firstamendment; fourthamendment; jackbootedthugs; jbt; jbts; johannesmehserle; leo; lping; oscargrant; photography; picture; police; policestate; privacy; rapeofliberty; streetganginblue
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1 posted on 01/26/2009 7:36:02 AM PST by BGHater
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To: BGHater

How stupid are people? If a cop demanded my camera I’d ask him if I were under arrest and what the charge was. If I’m not being taken into custody, he’s not getting my camera.


2 posted on 01/26/2009 7:38:49 AM PST by ClearCase_guy
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To: ClearCase_guy

“How stupid are people”?

...stupid enough to vote BO for POTUS. Skies the limit on stupidity at this point.


3 posted on 01/26/2009 7:40:41 AM PST by albie
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To: BGHater

I say no.


4 posted on 01/26/2009 7:41:37 AM PST by cripplecreek (The poor bastards have us surrounded.)
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To: BGHater

What is the police going to do if I refuse to turn over my camera ? Grapple with me ? Shoot me ?


5 posted on 01/26/2009 7:43:25 AM PST by libh8er
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To: BGHater

I think they have a right to get your name and address, but to take your personal property is a no, no.


6 posted on 01/26/2009 7:43:26 AM PST by stockpirate (A people unwilling to use violent force to defend liberty deserve the tyrants that rule them. SP-200)
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To: BGHater

I do not see how they have that right...but welcome to Barry’s America.


7 posted on 01/26/2009 7:44:06 AM PST by svcw (Great selection of gift baskets: http://baskettastic.com/)
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To: stockpirate

I can understand that it may contain evidence but it isn’t directly connected to the crime and should have to be subpoenaed.


8 posted on 01/26/2009 7:46:45 AM PST by cripplecreek (The poor bastards have us surrounded.)
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To: BGHater

We are getting there. The box is getting more corrupt and what rights we have smaller and smaller. When are we going to take some of the power back. Never.


9 posted on 01/26/2009 7:46:55 AM PST by Logical me (Oh, well!!!)
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To: BGHater
It didn’t appear that the BART videos were being used in a commission of a crime, so what could people have done to prevent police from illegally confiscating their cameras?

“Probably not a whole lot,” said Randazza. “You don’t want to get into a situation where you are refusing to comply with law enforcement, especially when that law enforcement officer just shot and killed somebody. No camera is worth losing your life over.”


No camera is worth losing your life over, but the principles of American freedom are. In a similar circumstance, cops would have to shoot me to get my camera. Randazza might be a First Amendment attorney, but he's also a wuss.
10 posted on 01/26/2009 7:47:27 AM PST by flowerplough (Liberalism undermined: Certain permanent moral and political truths are accessible to human reason.)
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To: ClearCase_guy

You said — “How stupid are people? If a cop demanded my camera I’d ask him if I were under arrest and what the charge was. If I’m not being taken into custody, he’s not getting my camera.”

Yeah, and I really understand that and go along with it. At the same time, I can see someone getting arrested, charged with interfering with an investigation, refusing lawful orders, and charged with disorderly conduct and also possibly assaulting a police officer — and ending up in jail with a list of charges to defend against, along with bail to raise and a whole new set of problems one never thought they would have a few minutes prior to that event...

That’s what can happen...

So, one should think through the steps they would go through (ahead of time) if things start deteriorating down to that level...


11 posted on 01/26/2009 7:50:59 AM PST by Star Traveler
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To: cripplecreek
I can understand that it may contain evidence but it isn’t directly connected to the crime and should have to be subpoenaed.

Couldn't resist answering this. Maybe the crime was the illegal shooting. And cover up? Well, Government seems to be one big cover up of everything they do. What's happening? And all this talk transparency! Bull Sh@@. Same thing.

12 posted on 01/26/2009 7:51:26 AM PST by Logical me (Oh, well!!!)
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To: libh8er

Seeing in this case that they just filmed a police officer shooting an unarmed, bound man in the back...I might be a bit concerned for my own safety if I were the videographer.


13 posted on 01/26/2009 7:51:54 AM PST by thecabal (Keep The Change)
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To: ClearCase_guy

This guy just shot an unarmed man...by accident maybe...he brings out the taser or maybe shoots you by accident too.


14 posted on 01/26/2009 7:53:11 AM PST by bronxboy
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To: bamahead

Rape of Liberty ping


15 posted on 01/26/2009 7:54:22 AM PST by EdReform (The right of the people to keep and bear Arms shall not be infringed *NRA*JPFO*SAF*GOA*SAS*CCRKBA)
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To: Logical me

Seems to me that the police would get a better response if they simply got a copy of what was filmed. That way the state has their evidence and the people have theirs.


16 posted on 01/26/2009 7:55:05 AM PST by cripplecreek (The poor bastards have us surrounded.)
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To: BGHater

“Officer, I don’t have a camera.”


17 posted on 01/26/2009 7:57:02 AM PST by davidlachnicht ("IF WE'RE ALL TO BE TARGETS, THEN WE ALL MUST BE SOLDIERS.")
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To: BGHater

In a greatly lesser type of incident, I was approached by security personnel at a church in Dallas (same church Billy Graham is a member of..., or, at least, the last I heard, anyway...) where I was taking pictures one Sunday morning. I was outside on the sidewalk talking pictures of one part of their historic building, going back quite a ways. I was told that I couldn’t do that. I would have to get permission to do so. Well, I knew that was ridiculous, since I was on a public sidewalk and street taking the pictures. But, since I was in Dallas and it was my dad’s church that we were attending, I just quit taking the pictures at that moment. I also resumed taking pictures on a different day and more quickly.... :-)


18 posted on 01/26/2009 7:57:58 AM PST by Star Traveler
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To: BGHater

The article said — “Needless to say, I now have Randazza’s cell phone number programed into my cell phone.”

It would seem that one needs to have a “lawyer on call” for so many things in life, these days...


19 posted on 01/26/2009 7:58:44 AM PST by Star Traveler
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To: libh8er
Shoot me ?

Possibly but more likely you will end up arrested for interferring. Best hope here would seem to be a bunch of lawsuits with much publicity. In a tense situation, however comply with the cops, they had already shot one person they shouldn't have shot.

I am normally a police supporter but they aren't always right and will protect a fellow officer. Also, over time they get a really sour view of all humanity by the nature of their work.

20 posted on 01/26/2009 7:58:52 AM PST by JimSEA
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To: BGHater
"No camera is worth losing your life over."

Sort of like the Constitution? /s
21 posted on 01/26/2009 8:04:02 AM PST by jaydubya2
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To: libh8er

++++”What is the police going to do if I refuse to turn over my camera ? Grapple with me ? Shoot me ?”++++

Today’s standards and blatant disregard for life...YES!

But then they’d have to kill the other eye witness with a camera and so on.....


22 posted on 01/26/2009 8:04:10 AM PST by mikelets456
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To: BGHater

Cops are just going to have to get used to the idea that everything they do will be recorded. Cameras are getting smaller, cheaper and stacked with more memory. It might even get to the point where many people just mount cameras on their shoulders or in their glasses to record constantly just in case something interesting happens. After all, if the cops aren’t doing anything illegal, they have nothing to fear being recorded. (just to turn cops reasoning for red light and speed cameras along with regular civil rights violations back on them).


23 posted on 01/26/2009 8:04:57 AM PST by KarlInOhio (On 9/11 Israel mourned with us while the Palestinians danced in the streets. Who should we support?)
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To: stockpirate

“I think they have a right to get your name and address, but to take your personal property is a no, no.”

You have an obligation to give your name, address and date of birth. Beyond that, you don’t have to say squat.


24 posted on 01/26/2009 8:05:11 AM PST by ought-six ( Multiculturalism is national suicide, and political correctness is the cyanide capsule.)
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To: JimSEA

I am very pro police too and I am sure the vast majority of them do their job honorably and well. It’s the few bad apples that sometimes give the rest of them a bad name.


25 posted on 01/26/2009 8:05:16 AM PST by libh8er
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To: BGHater

This is a situation where you can be right, dead right, but be just as dead as if you had been all wrong. Officers have the ability, not necessarily the right, to arrest anyone anytime, anywhere. If you resist the situation just gets worse. Not only more charges, but possibly physical harm up to and including death.

Even you do go along quietly your problems are likely just beginning. It’s up to you to prove your innocence and you will have to bear the full cost of that personally. If you can even find an attorney who will take on the system. The government has virtually unlimited resources to mess with you. You, OTOH, are on your own, probably with limited resources at your disposal. And whatever you do, you will have to do it from jail unless you are freed on bond.

My wife has a cousin who was a retired army photographer. He went out to get his paper one morning and saw his the body of his neighbor hanging from a tree in her front yard. He went back in, got his camera and began taking pictures. The coroner accosted him and demanded the camera and or the film. He refused and was arrested and jailed. He could not find an attorney and had to settle for them quietly dropping the charges, after he had been booked and forced to post bail.

It might not be the law, but it’s certainly the outcome that you really don’t have the right to do anything an official doesn’t want you to do.


26 posted on 01/26/2009 8:08:21 AM PST by jwparkerjr (God Bless America!)
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To: ClearCase_guy

Easier said than done.

My experience relates to the UK rather than the US but I imagine the situations aren’t all that different. My two brothers were on a night out and my eldest brother got into a dispute with a policeman, now I believe my brother was in the right but even if he wasn’t it’s not relevant to what happened next. He was arrested by the police and handcuffed and at that point my other brother, who hadn’t been involved remotely in what had preceded this started filming the situation, at that point the senior officer indicated to a woman officer to stop him, she approached my brother and he said he had every right to film what was happening (it was in the middle of the street, remember every street corner in the UK has 24 hour CCTV so this shouldn’t be a problem), the officer told him he had no right and at that point the filming abruptly finished.

The next morning both brothers were taken from their police cells, both of them with bloody noses and one with missing teeth to be prosecuted for assault and breach of the peace. They then asked for the return of the camera, it was returned to them in pieces, the sergeant explaining that it must have got broken in the fracas.

At this point however the story gets interesting, the cops in their stupidity smashed the camera but obviously didn’t realise they should delete the video from the memory chip. Six months later the video was produced in court, the cops were proven to be liars and all eleven charges were thrown out against my brothers, they are currently suing the police.

But the important point is that this only ended happily because of the cops’ stupidity, if they had succesfully wiped the video my brothers could have ended up behind bars for the serious offence of assaulting police officers.

So don’t always assume that your rights will be respected by the police. This might come as a shock to some people but sometimes cops lie, sometimes they even wrongfully beat up people, you really do have to be careful even if the law is (supposedly) on your side.


27 posted on 01/26/2009 8:11:54 AM PST by PotatoHeadMick
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To: jwparkerjr

Wouldn’t the officer be destroying evidence seizing by the cameras?


28 posted on 01/26/2009 8:14:46 AM PST by massgopguy (I owe everything to George Bailey)
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To: JimSEA

“... and will protect a fellow office.” Therin lies the rub. How often and how many cops do this? When you protect criminals and you have a badge, you are one of the lowest forms of humanity on Earth, backed up by the power of the state.


29 posted on 01/26/2009 8:17:07 AM PST by Monsieur Poirot
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To: PotatoHeadMick

These cases will become a lot more interesting once all of these cellphone cameras have “live to the net” recording capabilities enabled by default.


30 posted on 01/26/2009 8:19:55 AM PST by AustinBill (consequence is what makes our choices real)
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To: BGHater

Fascism Expansion *PING*


31 posted on 01/26/2009 8:26:56 AM PST by mkjessup (Jimmy Carter is the Skidmark in the panties of American History. Barack 0bama is his second term.)
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To: libh8er
What is the police going to do if I refuse to turn over my camera ? Grapple with me ? Shoot me ?


Well...they could peppper spray you in the eyes......which might make you scream and cry......which might prompt them to believe you're resisting an arrest which WILL prompt them to taser you......which will probably make you twitch on the ground worse than David Gergen learning how to breakdance........which might cause them to call for "back up" and cordon off the area with yellow tape.....and then you'll probably have the bomb-squad, a "negotiator", Homeland Security, FOX/CNN/MSNBC/ABC/CBS, and Jesse Jackson all there.........OTOH............
32 posted on 01/26/2009 8:52:09 AM PST by macamadamia (Life is a continuation of war by other means.)
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To: svcw

This isn’t Barry’s America. This is the trend of heavy handed law enforcement since Nixon started the War on Terror. The truth is we have the Police that your overly compliant neighbors want. This is a Federalist system with the 10th Amendment. Your neighbors want heavy handed police, so that’s what you get. Try arguing against that in this forum FR and you WILL be flamed and called a pot head and “don’t you know this is a country of laws?” Americans as a body politic don’t want to be free from entanglements with their neighbors through the courts. They will sacrifice all manner of liberties for a small margin of safety.


33 posted on 01/26/2009 8:53:10 AM PST by DariusBane (Even the Rocks shall cry out "Hobamma to the Highest")
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To: DariusBane

You are correct but Barry is president so I am going to blame him for EVERYTHING from now on (well until he gone gone gone.....)


34 posted on 01/26/2009 9:05:53 AM PST by svcw (Great selection of gift baskets: http://baskettastic.com/)
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To: massgopguy
re: Wouldn’t the officer be destroying evidence seizing by the cameras?

The simple act of taking the camera would not destroy evidence. In a perfect world it makes perfect sense for an officer to protect anything that might relate to evidence of a crime, including a camera or memory cards, etc. We don't live in a perfect world though, and frequently those at the scene of a crime or emergency are not thinking all that clearly, especially about the long term effects of what they are doing.

Personally, if I had pictures important to the fair investigation of an incident I would not mind sharing them with anyone involved. The down side is that I take the pictures as part of my job and doing something with them that makes them unavailable for my employer is not fair to my employer. If I surrender my film or memory cards at the scene then it could months or years before I get it back, if ever.

Lots of people at the scene have their own personal reasons for not wanting pictures to be taken of an event. Truth is, those don't really impact on a shooter's legal right to take pictures. But reality often has a way of messing with what is ‘right’! I have had family members take my camera from me and threaten to beat me to death with it. At that point there is no reasoning with them and it's better just to quietly walk away.

I have been prevented from taking pictures at a number of scenes where the pictures would have been very helpful to a wronged party.

35 posted on 01/26/2009 9:07:27 AM PST by jwparkerjr (God Bless America!)
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To: svcw

Indeed, hold the jug eared racist accountable.


36 posted on 01/26/2009 9:08:57 AM PST by DariusBane (Even the Rocks shall cry out "Hobamma to the Highest")
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To: svcw

All this started just a couple weeks ago? How is this a result of Barry’s world?


37 posted on 01/26/2009 9:28:42 AM PST by stuartcr (If the end doesn't justify the means...why have different means?)
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To: stuartcr

Yea, this is what I am going to do. I am going to blame Barry for EVERYTHING he is president now, he gets the blame - period.


38 posted on 01/26/2009 9:29:57 AM PST by svcw (Great selection of gift baskets: http://baskettastic.com/)
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To: flowerplough

Do you think that if you were killed while preventing a cop from taking your phone/camera, you would be hailed as a hero of American principles, or just forgotten about in a couple of years?


39 posted on 01/26/2009 9:31:04 AM PST by stuartcr (If the end doesn't justify the means...why have different means?)
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To: jaydubya2

That isn’t even close.


40 posted on 01/26/2009 9:32:50 AM PST by stuartcr (If the end doesn't justify the means...why have different means?)
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To: jwparkerjr

I think it’s better to be alive than right or wrong. At least if you’re alive, you can keep telling people you were right...


41 posted on 01/26/2009 9:35:18 AM PST by stuartcr (If the end doesn't justify the means...why have different means?)
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To: AustinBill

Yeah, then the ISP could alter it anyway it wanted, before sending it on...


42 posted on 01/26/2009 9:36:52 AM PST by stuartcr (If the end doesn't justify the means...why have different means?)
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To: stuartcr

Why?


43 posted on 01/26/2009 9:38:57 AM PST by jaydubya2
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To: svcw

Just like with Clinton and Bush. Just depends on who’s in office at the time, and if we like him...


44 posted on 01/26/2009 9:39:02 AM PST by stuartcr (If the end doesn't justify the means...why have different means?)
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To: jaydubya2

They didn’t have cell phone cameras when it was written!! or even situations that are remotely similar.


45 posted on 01/26/2009 9:41:12 AM PST by stuartcr (If the end doesn't justify the means...why have different means?)
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To: PotatoHeadMick
So don’t always ever assume that your rights will be respected by the police.

Fixed.

46 posted on 01/26/2009 9:42:59 AM PST by TankerKC (Yes we can? I already could.)
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To: stuartcr

You betcha. What goes around comes around.


47 posted on 01/26/2009 10:21:19 AM PST by svcw (Great selection of gift baskets: http://baskettastic.com/)
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To: svcw

...and keeps coming around and coming around...


48 posted on 01/26/2009 10:25:32 AM PST by stuartcr (If the end doesn't justify the means...why have different means?)
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To: ClearCase_guy

Since a cop just shot an unarmed man in the back, do you really need an answer.

I stopped respecting police cause they no longer respect us. I try to avoid any contact with them whatsoever.


49 posted on 01/26/2009 10:42:58 AM PST by packrat35 (To crush your enemies, to see them driven before you, and to hear the lamentation of their women...)
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To: ought-six

“You have an obligation to give your name, address and date of birth. Beyond that, you don’t have to say squat.”

Actually you have a RIGHT to privacy and it has been ruled on by SCOTUS. So you don’t have to give them anything.


50 posted on 01/26/2009 10:44:58 AM PST by stockpirate (A people unwilling to use violent force to defend liberty deserve the tyrants that rule them. SP-200)
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