203-29 Individual Observing, Photographing, And Or Recording Police Activity

Question 1

1. Individuals have the right to lawfully observe and or record police activity including but not limited to detentions, searches, arrests or uses of force. This right extends to individuals in public places, such as streets, sidewalks, and parks, as well S private property in which the individual has a legal right to be present, such as buildings, lobbies, workplaces, or an individuals own property. This right to observe and or record police action can be limited for reasons such as the safety of officers or other members of the public, or when a violation of law is committed by the individual who are observing/videotaping. The following guidelines should be utilized by MOS whenever the above situation exists:

A. Do not

 1. Threaten, intimidate, or otherwise discourage an observer from recording the police officers activities or 
 2. Intentionally block or obstruct cameras or other recording devices when there is no legitimate law enforcement reason to do so; or
 3. Delete any pictures or recordings from observers recording device or order observer to delete such pictures or recordings.

B. Absent additional actions constituting a violation of law, an individual can not be arrested for:

 1. Taking photographs, videotaping, or making digital recording;
 2. Requesting or making note of shield numbers or names of MOS
 3. Criticizing the police or objecting to police activity
 4. Refusing to leave the area;
 5. Using crude or vulgar speech

2. An arrest for OGA penal law section 195.05 requires probable cause to believe the person is obstructing governmental administration. Actual interference with the performance of an official police function is required. Interference can include actual physical force ( touching or physically interfering with the officer or suspect; using a camera so close to the officers face that it intentionally obstructs his or her view), or intruding into the physical space necessary to safely perform police operations and refusing to obey an order to move back, or purposely engaging in passive behavior that prevents an officer from taking enforcement action.
3. This procedure is not intended in any manner to limit the authority of the police to establish police lines. ( crowd control at scene of fire, demonstrations, special events)
4. When probably cause exists that a recording device contains evidence of a crime:

A. Inform the observer that there is probable cause to believe that the recording contains evidence of a crime.
B. Request consent to view the recording and or email the recording directly to the MOS department issued cellphone
C. If the observer refuses to give consent, inform him/her that a search warrant for the device will be requested. Inform the observer that deletion of the content of the recording may be considered tampering with physical evidence in violation of NY penal law 215.40
D. If MOS reasonably believes that the observer will delete the recording, obtain approval from a supervisor to seize the device if feasible. Seize the device only for the time necessary to secure a warrant.
E. Do not view or delete the recording
F. Obtain a search warrant
G. If there is probable cause to believe that an exigency exists and that the recording contains evidence of a crime, contact a supervisor to determine whether review of the recording absent a warrant is permitted.

5. A supervisor must be requested to respond where an observer is arrested for interference with police action or where the contents of a recording device are believed to contain evidence of a crime.
6. MOS May contact the legal bureau if they have any questions regarding an arrest for OGA or the seizure of a recording device that may contain evidence of a crime
7. Members of the public are not allowed to photograph and or record police activity within dept facilities. MOS May order any member of the public who is photographing or recording within dept facilities to stop such activity. If such person refuses to stop, they then should be ordered to leave the premises. If such person refuses to leave the premisss MOS May take proper enforcement action under the trespass statutes

Answer 1

OGA. Requires the actual interference with the performance of an official police function

The public may not record within a dept facility
1- order them to stop recording
2- they refuse to stop recording order them to leave premises
3- they refuse to leave- arrest for trespass