Do police have the right to confiscate your camera?

Carlos Miller ^ | 21 Jan 2009 | Carlos Miller

[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.

[Toki]

From what I was told in my photography class, that when someone told you to give up your camera, you did not give it up, because they do not have the ability under law to take it (I think he said let them call the police and they would tell the guard it was ok, when it wasn’t the police themselves. He said it was better to stand up to the police, it would be sorted out later, but to hang onto film/SD card). Also, if your told not to take pircutes in a place anymore, (like we were told at a mall not to, on the threat that the security guard would take away our cameras :D) you can still shoot them, and they cannot take your camera, and you still own the picture they have taken, and seemed to imply if the story was important enough, to take the pictures, and if you get in trouble for trespassing, invasion of privacy, etc. well it would be worth it.
W

[Abundy]

I read the article, what I posted is what I believe would pass a constitutional analysis. I did not say that is what happened.

The article makes no mention of whether the owners have requested the phones back. (although if I was running the Police Department the investigators would have been required to return the phones that night)

Your bias against the police is showing...you couldn’t even digest what I posted and contrast it to the news article and note the differences.

[gondramB]

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

Maybe... in some places its now a violation of privacy to film a cop. Sad but true.

[elkfersupper]

This is the kind of thing they fear.

Cop Attacks Cameraman

[amchugh]

The police can ask for anything they want, but have no right to forcibly take a camera without a warrant. However, I suspect they can detain you as a witness, which would be kind of a pain.