September 19, 2008
The Multnomah County District Attorney’s Office declined to prosecute, and now Tabor is trying to force the Portland Police Bureau to take a formal position on whether it’s OK for civilians to videotape cops — with sound — in public places.
In a tort claim notice to the city last week, attorney Benjamin Haile informed the city of Tabor’s intent to sue for $100 and a written policy saying that citizens have the right to make video and audio records of police. Haile has taken on Tabor’s case at no charge to Tabor. He says recording officers on the job is a fundamental part of holding police accountable that Haile believes is protected by the First Amendment.
The issue isn’t an isolated one. Last month, Beaverton police arrested a 27-year-old Aloha man on accusations that he illegally recorded an officer arresting another man at a bowling alley. Ho Xent Vang recorded the encounter on his cell phone, and Beaverton police say the audio part of the recording violated state law because the officer didn’t give his consent.
In both cases, police were citing ORS 165.540, which makes it generally illegal to tape-record a conversation without first obtaining permission except in cases where a person wouldn’t reasonably expect privacy, such as at a public meeting or sporting event.
Portland police spokesman Sgt. Brian Schmautz said he believes the public doesn’t have a right to record officers’ conversations – on or off the job – without their consent.
“Just because somebody is a police officer doesn’t mean they give up their rights,” Schmautz said.
The videotaping incident that netted Tabor a ticket unfolded when Tabor spotted officers Dane Reister and Nicholas Ragona stopping two men on March 25 next to the Portland Art Museum. On the nine-minute video, one of the officers can be heard accusing one man of being a drug dealer and the other a drug buyer. He repeatedly asks one of the men for his ID and to allow himself to be patted down. At one point, the officer -identified by Tabor as Reister -tells the man to back away. And when the man takes a step back, Reister takes two or three steps forward and shoves the man in the chest.
“That bugged me,” said Tabor. “It really looked like intimidation – bully-type stuff.”
After patting the man down, the officers let both men go. Then Reister walks over to Tabor, asks him if the camera was also recording sound, and when Tabor says yes, tells Tabor to hand over the camera.
“I was just totally surprised,” Tabor said.
Tabor began to walk to Central Precinct to file a complaint. The officers pulled up in their patrol car and asked what he was doing and then said they’d meet him in the lobby.
Tabor claims that after waiting about 20 minutes, the officers returned his camera and handed him a ticket. Tabor said the officers told him he was standing too close and making them nervous in what could have been a dangerous situation.
Tabor said he doesn’t think he was standing too close – and if the officers thought he was, they should have said so.
Deputy city attorney Dave Woboril said he’ll review the incident, but said that Oregon’s law is “pretty complicated.” Woboril said his reading of the statute is that people can’t surreptitiously make an audio recording of others who think their conversations are private. But Woboril said most people assume that someone holding a videocamera out in the open is recording sound as well as video. In general, he believes civilians have the right to record officers in public places in that way.
In 1991, then-police chief Tom Potter issued a training bulletin stating that the public had the right to record video and audio of police arresting suspects in a public place. Woboril, Schmautz and Police Chief Rosie Sizer weren’t aware of the bulletin, but Tabor’s attorney, Haile, dug up it up in his research.
Haile said he wants the bureau to specify that police stops — not just arrests — can be recorded. He also wants the policy put in the bureau’s policy and procedures manual, so it won’t be forgotten.
Haile noted that Potter’s bulletin was issued shortly after Rodney King, a black man who was stopped for speeding, was videotaped by a bystander being beaten by four Los Angeles police officers. The videotape spurred widespread discussion about police brutality.
Dan Handelman, of Portland Copwatch, said he hears about a few cases each year in which videocameras are seized by police. He says if police are acting professionally and lawfully, they should have no objection to being videotaped. “It could end up exonerating the police — it could be good for them.”