As recording police officers draws more attention, Dallas police policy tries to 'water down' the right

When the Dallas Police Department released its policy in May on the right of the press and public to records its officers, the media were left scrambling to figure out what had changed between when the policy was drafted and circulated and when it was released officially.

The original draft of the policy was four pages and contained specific restrictions on officers’ actions when they encounter a "bystander [who] is observing, photographing, or video/audio recording” officers." Officers were supposed to have not impeded or prevented the bystander’s ability to continue recording — including seizing or demanding the camera to be turned over or demanding to "review, manipulate, or erase any images" — based only on the fact that the bystander was recording.

Before preventing any bystanders from recording, officers were also supposed to have observed the bystander engaging in action that was illegal, harmful to the public’s or the officer’s safety or interfered with the police’s ability to carry out their duties.

The final one-page policy now states, “Officers must understand any bystander has a right to photograph and/or audio/video record the enforcement actions of any police officer so long as the bystander’s actions do not interrupt, disrupt, impede or otherwise interfere with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.”

The original draft would have required the threat to safety be “legitimate” and “articulable.”

Mickey Osterreicher, general counsel of the National Press Photographers Association who was previously involved in training some Dallas police officers on recording and other media law, said the final policy may prove to reduce the likelihood of discipline for officers who take a more aggressive stance toward recording bystanders.

“We were really looking forward to a good policy, and the original draft was four pages,” Osterreicher said. “They issued an extensive policy regarding body-worn cameras … where they actually talk about the discipline if officers turn off those cameras. And it’s not like they have to reinvent the wheel. There are quite a number of different policies out there where all they pretty much have to do is change some of the wording to apply to their specific department.”

A Dallas police spokesperson did not respond to a request for comment. The Dallas Observer criticized the final policy and placed blame on the Dallas Police Association, which lobbied last year to introduce a bill in the state legislature to make recording police officers illegal, for the final policy allegedly having been “watered down.” The bill in the state legislature was introduced in March 2014 by state representative Jason Villalba, but he withdrew it a month later under mounting public criticism.

Osterreicher said journalists covering police actions during protests too often face official barriers.

“Some of the problems that we saw in Ferguson and that we see in other places is that sometimes the police set up an area — it can be a press pen, whatever — and it really should be for the convenience of the press, but unfortunately, far too often, the police look at it as, ‘That’s the where the press should be, and they can’t be anywhere else,’ and that’s just wrong,” Osterreicher said. “If the public is allowed to be out on the street, then so is the press.”

Mary-Rose Papandrea, a professor of law at Boston College Law School, said reporters and citizen journalists face obstacles when documenting protests beyond just recording the police.

While some journalists have displayed press credentials to “help to get the police to back off or be more accommodating,” Papandrea said, the New York Times alleged in 2011 that New York Police Department officers arrested and assaulted reporters covering the Occupy movement while they were wearing press credentials.

“That seems more clearly a First Amendment problem if they single out members of the media,” Papandrea said.

Cities’ guidelines on who can obtain press credentials can vary wildly and differ in the degree to which they reflect changing ideas on who is a journalist, Papandrea noted. Police officers do have a legitimate duty to maintain public order during protests, she added, but journalists can be swept up in enforcement actions if they do not have press credentials or are not a member of the traditional media.

In Cleveland earlier this week, Kris Wernowsky, crime editor of the Northeast Ohio Media Group, was swept up in a dispersal of a protest over the acquittal of Cleveland police officer Michael Brelo when he didn’t have his press credentials with him. He was released a few hours later without being charged after an editor showed Wernowsky’s press pass to the police.

“I don’t think that any arrests of journalists or citizen journalists have resulted in charges that have stuck lately with the prosecutor, but I think with the fact of arrest and even without an arrest, there’s a lot of intimidation going on, and that’s problematic,” Papandrea said.

Cleveland police spokeswoman Jennifer Ciaccia said reporters are not required to have credentials to cover protests.

“We don't have anything that requires reporters to wear credentials. If you're referring to our suggestion that they wear them during the protests, we were just trying to avoid journalists covering their stories from getting swept up should mass arrests occur. It just expedites things for everyone,” Ciaccia said. “We did our best to ensure we gave the press space to report.”

Despite inconsistent policies among police departments, the Department of Justice has advised departments to be accommodating toward bystanders by directing them where to stand, both to record and be out of the way of enforcement activities, as well as to be cautious about arresting people who are recording protests, Papandrea said.

“There’s mountains of evidence on how citizen journalists and non-professional journalists can contribute in very meaningful ways to the public dialogue,” Papandrea said.

Related Reporters Committee resources:

· NM&L: Tips for covering protests