Miami Beach police officers told not to confiscate video

The Miami Beach Police Department issued new guidelines earlier this month prohibiting officers from searching or seizing video footage or pictures taken by the general public or members of the media who capture images of police officers doing their job in areas open to the general public, except under special circumstances.

The new policy is a reaction to a May incident when Miami Beach police allegedly confiscated video-recording equipment from a member of the public and a TV photojournalist after they witnessed officers shooting and killing a suspect on a public street.

The policy, General Order 11-03: Seizure & Search of Portable Video and Photo Recording Devices, says: “The Department recognizes that the taking of photographs and/or videos by private citizens and media personnel is permitted within areas open to general public access and occupancy.” It says civilians may record or photograph a police employee’s activities as long as they remain at a reasonable distance, don’t interfere with the employee’s duties and responsibilities, and do not create a safety concern for the employee, person detained or other persons.

The policy distinguishes between members of the public and the news media. It says police can only seize a video device or camera from members of the public without the permission of the owner when probable cause exists that it depicts visual and/or audio items pertaining to a criminal act and there are exigent circumstances, such as the danger of the imminent destruction of evidence.

It also says police officers “shall not seize portable video and photo recording devices from media personnel unless they are under arrest or directly involved in the criminal act.” The policy makes clear that a warrantless search of the video “seized incident to the direct involvement or arrest of media personnel is prohibited unless there is reason to believe that the immediate search of such materials is necessary to prevent the death or, or serious bodily injury to, a human being.”

Mickey Osterreicher, general counsel for the National Press Photographers Association, commended the new police in a letter to Police Chief Carlos Noriega, but he also offered words of caution. The NPPA provided information and guidance to the department when it was constructing the policy.

“I would like to commend you and your department for implementing [the new guidelines],” he said. “While NPPA is pleased to see that MBPD has issued this policy, the real challenge will be in the ongoing education and training of your officers. It is also critical that when violations of this policy occur — they are quickly and thoroughly investigated by your department — and employee(s) found to have violated departmental policy be properly disciplined and criminally charged if necessary.”

The policy points to the federal Privacy Protection Act of 1980, which makes it illegal for a police officer or law enforcement employee to search for or seize the work product of a media photographer or videographer unless there is reason to believe that the immediate seizure is necessary to prevent the death of, or serious bodily injury to, a human being, or there is probable cause to believe the person possessing the materials has committed or is committing the criminal offense to which the materials relate. The statute makes clear that a search or seizure of the materials is prohibited when the offense is merely withholding it.