A Florida Police Department is under fire after a recent memo expressed that undercover cops are advised to arrest citizens who record them in public – a right protected by the first amendment.
In it, Mallory acknowledged that the public (and journalists) have a right to record police in public, but followed it up with roughly four pages of jargon-heavy legalese that in essence gives undercover police officers the right to arrest anyone recording them, citing the need for officers ‘investigative need to remain secret.’
To preface the rules, Mallory laid out what constitutes as ‘Resisting,’ formerly known as recording or photographing officers in public:
The law is that absent a clear case of the subject unlawfully interfering with your execution of your legal duty (i.e., the video recording/photography constitutes the crime of ”Resisting With/Without Violence”; hereafter “Resisting”), and if you are located in a place lawfully accessible to the general public, the subject may lawfully do so. A couple of examples of those circumstances in which video-recording/photographing of you might constitute the crime of:
Now that ‘Resisting’ is defined, Mallory went on to explain certain situations where he believes officers have the ability to infringe upon our first amendment rights as photographers:
Resisting might be:
I. You are conducting surveillance from a location under circumstances in which we have a clear and reasonable intention and investigative need to remain secret and the video recording/photographing can be reasonably expected to include your chosen location such that a viewer of that video/photograph could identify that location, and
II. You are acting in an undercover capacity, you are actively conducting law enforcement business (not, e.g., on lunch break, etc.), i.e., you are actually performing some legal duty (e.g., conducting an investigation), and the video-recording/photographing would somehow reveal your identity as a police officer, thereby endangering you and/or denying you the opportunity to continue to perform your legal duty.
As you can tell, the legalese is as riddled with overly verbose prose and stated as vague and confusing as possible.
In speaking to PINAC, General Counsel to the National Press Photographers Association (NPPA), Mickey Oterreicher said:
I believe that Lakeland Police Department General Counsel, Roger Mallory does a great disservice to his chief and his department by suggesting ways in which officers may violate the clearly established constitutional rights of citizens and journalists to photograph and record police officers performing their official duties in a public place. One only need to look at the opinions in the Eleventh Circuit [Federal Court] and the Statements of Interest by the U.S. Department of Justice in these cases as well as some very well written policies by law enforcement agencies throughout this country to realize that some of the suggestions made by Mr. Mallory violate not only the spirit but also the letter of the law when it comes to these First Amendment rights.
To end the document, Mallory cites a very vague wiretapping law, which he uses as a scapegoat statute to allow officers to arrest photographers ‘Resisting’ cooperation.