police transparency

January 5, 2024

Is it Legal to Livestream a Police Interaction?

Who hasn’t seen videos of police manhandling citizens who were allegedly involved in criminal activity? Such accounts, usually recorded by interested onlookers, have informed the public of the unnecessary use of force by officers across the country. Imagine how little we would know about Rodney King, Eric Garner, Tamir Rice, Walter Scott, George Floyd, and many, many others had no one taken the time to record the horrendous incidents. But beyond simply videotaping arrests and other police interactions with the public, is it legal to actually livestream them? While livestreaming might benefit the fight for civil rights, might it also hamper an officer’s ability to do their job and even lead to uprisings and riots? After all, we have seen as much with the use of video; wouldn’t livestreaming be even more evocative?

The First Amendment

The right of people to videotape law enforcement officers when they are performing public duties has been repeatedly upheld in courts across the country, which have found that it is unmistakably a right guaranteed by the First Amendment. But livestreaming is another thing altogether, allowing the public broadcast of an officer interaction in real-time. What does the law say about that?

Legal Precedent

Plenty of officers are uptight about livestreaming when they are on duty, saying it interferes with their ability to do their jobs properly and creates the potential for additional dangers. While the law is evolving on this issue, the Fourth Circuit has provided some direction regarding the legality of livestreaming.

The February 2023 case (Sharpe v Winterville Police Department) involved a motorist who was stopped by police. At the beginning of the interaction, a passenger began to livestream the occasion. The officer attempted to take the passenger’s phone, explaining that while the passenger videotaping the interaction was permissible, livestreaming was not because it could lead to an unwanted hazard if others viewing the stream showed up and caused problems at the scene of the traffic stop.

The passenger was having none of that, and challenged the officer’s contentions in court, maintaining First Amendment Rights had been violated. The Fourth Circuit agreed with the plaintiff, writing that livestreaming does contribute to the information the public has about law enforcement activity and is protected by the First Amendment under these circumstances.

Nonetheless, the court did appreciate that officer safety might be an issue in some situations:

In the event an individual became proximate to the officer, inhibiting the ability to perform duties;
In the event viewers of the livestream were invited to the scene in order to demonstrate or otherwise impede the officer’s actions.

Under these circumstances, officers potentially could have more leeway legally to claim that First Amendment protections were limited and might not include livestreaming. Continue reading

December 22, 2023

Police Transparency a Must

by David M. Boertje

There is a social contract between law enforcement and the communities in which they work, requiring transparency and trust. But that can be extremely difficult to achieve.

Practical Implications

Roughly half of Americans say they have a declining perception of police and other law enforcement agencies primarily because of what they perceive as a lack of transparency. This suggests that agencies must shine more light on policies and procedures and give the public greater access to data and decisions made by top officials if they want the trust they need for maximum efficiency. That means agencies will necessarily incorporate clear policies designed to build visibility into the world of law enforcement:

Use modern technology to track and report crime, officer response, personnel issues, and so forth.
Implement a civilian review board that works with law enforcement with the power to provide oversight, accountability, and updates to the public.
Create policies, annual reports, organizational charts, and additional data whenever possible that is available online for the public to peruse.
Create avenues for police accountability that make sense to the public. When it comes to use-of-force issues and the public finds particular actions questionable or inhumane, but the department stands behind them, there should be an explanation/rationale for such procedures and when or why they are deployed. If certain officers have multiple issues one after another they should be held accountable for that. And when officers clearly lack compassion and decency, they should be removed from the force.
Publicize every use-of-force incident and include documentation on relevant demographic information, the type of force and reason it was used, and the officers involved.
Review and evaluate events that involve complicated issues and result in negative outcomes that could be prevented in similar situations down the road.

Benefits of Transparency

The fact is that the majority of information the general public receives about police actions comes from news stories. That being said, how might transparency improve community perceptions of law enforcement? Many stories that have gotten a lot of traction in recent years have exposed officers as ruthless, punishing enforcers who appear to enjoy their aggression toward citizens. The question is, are those isolated incidents or common practice? Transparency and accountability can answer the questions the public has about these incidents and, if effectively handled, can boost community confidence in the police. When there is a wall of secrecy around police agencies, the public can be counted on to assume the worst.

We know there are legitimate problems in any organization and that when they are handled openly, the opportunities for remediation of policy are much more likely, satisfying the public demand for better outcomes when police deal with racial disparities, mental health issues, juvenile offenders, and other problems front and center on the public agenda. Continue reading

February 11, 2022

Can the Police Lie to You During an Interview?

by David M. Boertje

Being aggressively questioned by the police can be stressful and intimidating, to say the least. Even if the alleged crimes that you are being asked about are those that you do not know anything about or have any involvement in perpetrating, police interrogations are quite draining and can be traumatic.

This is why having an experienced and aggressive defender on your side is so important. What you say to the police can and will be used against you if it benefits their case. When you have a seasoned criminal defense lawyer with you during a questioning session, you will have the legal counsel you need to best protect your rights and keep you from unknowingly putting yourself in legal jeopardy.

In San Diego, David M. Boertje is a San Diego criminal defense attorney who is dedicated to protecting individuals that are accused of crimes. David Boertje has extensive experience helping the aggrieved with the highest quality legal counsel and a resume that includes successfully handling thousands of criminal cases.

Lying and Law Enforcement

Police officers are trained to get the most information out of people they suspect either know about or were involved in the commission of crimes. This is their job and many officers do it very well. As such, police officers can engage in tricky tactics that are meant to confuse, dishearten, and pressure people into talking to them and answering their questions.

One of the things that an officer may do when they are interviewing you is lie. While this may seem unlawful, it is actually an acceptable practice. The reason that an officer will do this is to maneuver you into making an incriminating statement or providing details that implicate you and others for alleged crimes.

If you are brought in for questioning, it is critical that you do not go alone, but rather that you have the assistance of a lawyer. The San Diego felony defense attorney at the Law Offices of David M. Boertje can advise you of your rights and help you through a police interview so that you are safeguarded from saying something that harms your case.

It is not uncommon for a person to incriminate themselves even when they are completely innocent. One example is giving a false confession to a crime. This happens more than you may think. You are especially vulnerable to having this and more happen to you if you do not have an attorney by your side during a police interview.

It is not just lying that you have to be concerned about when you are interviewed. Police may attempt to scare you. They could make threats that prompt you to give them information or say something that is not true out of fear. Continue reading

October 16, 2020

Imperial Beach City Leaders Make Alternative Policing Recommendations

by David M. Boertje

In Imperial Beach, the sheriff’s department has been told to reduce using force on suspects through the recommendations of a task force of Imperial Beach city leaders. In addition to limiting the use of force, the task force has also recommended that agencies outside of the sheriff’s department be utilized when non-emergency calls are made.

After Imperial Beach leaders declared that the city supported and backed Black Lives Matter in June, the task force was put together. One of the stances that the BLM movement takes is to defund the police. Many cities across the country have looked into varying ways that they can restructure their funds and the responsibilities of their police forces in response. The task force, who investigated the San Diego Sheriff’s Department operations as they relate to Imperial Beach, published a report of their findings. In the report, the committee cited data from the sheriff’s department regarding incidents that take place in the city was insufficient.

Heading the task force was Mayor Pro Tempore, Paloma Aguirre, and Councilmember Ed Spriggs. The group worked with the sheriff’s department as well as with the community to collect information. The group concluded that community service officers should be used instead of police in non-emergency situations. They also recommended that deputies in the city should receive additional training on the following topics:

Diversity
Social justice
Unconscious bias

Has the Sheriff’s Department in the City of Imperial Beach Implemented the Recommendations?

Since the report’s completion, no actions were taken. However, members of the team that worked on the report believe that together, the city and the sheriff’s department will be successful in making the changes necessary to improve the quality of law enforcement as well as the safety of the community. While the task force has now been dissolved, the report will be reviewed and its findings considered by the city’s Mayor, Serge Dedina. Mayor Dedina urged the community to have patience as any changes that develop will be done so slowly and with time.

According to data released from the FBI, there were a total of 431 reported crime incidents in the city in 2018. Approximately 79 of these incidents were violent crimes of rape, robbery, and assault. There were no murders reported in the city that year. The rest of the 352 crimes reported that year were all property crimes of burglary, theft, and vehicle theft. Crime in Imperial Beach is lower than the national average by 39% and violent crimes are 25% lower. Imperial Beach is showing a trend of decreasing crime rates. The FBI information shows that the city’s crime decreased by 13% in 2018 and the city is safer than 46% of all other cities across the country. Continue reading

February 15, 2019

Transparency in Law-Enforcement

by David M. Boertje

This week a San Francisco free-speech group, the First Amendment Coalition, sued the California Attorney General and Justice Department over their refusal to disclose police misconduct records under the state’s new transparency laws. Last year the Senate passed a bill providing the public with greater access to police personnel files as well as greater access to video or audio from police shootings or deadly use of force encounters. Details surrounding both laws are described below.

Greater Access to Police Personnel Files

The California Penal Code was amended with Senate Bill §1421 to permit more access to police and prison personnel records. In the past, police and prison personnel records were not disclosed for confidentiality reasons even for litigation and public-records requests.

While police and prison personnel records are still confidential, they may be released in situations in which one or more of the following conditions apply.

When a gun is fired by police or prison personnel that results in death or great bodily injury;
A sustained finding that police or prison personnel sexually assaulted someone; or
A sustained finding that police or prison personnel were dishonest in a criminal case or in the investigation of another police or prison officer.

A sustained finding is a decision by investigational authorities in cases of police or prison personnel misconduct that finds fault in the conduct of the police or prison officer.

Greater Access to Video and Audio From Police Shootings

Assembly Bill §748 also amended the California Government Code and provides the public with greater access to video or audio from police shootings or deadly use of force incidents that result in death or great bodily injury.

The right to receive access to video and audio is not absolute. A police department or prison may deny disclosure or release of the video and audio recordings if the incident is under investigation and if would violate someone’s privacy rights. Assembly Bill §748 goes into effect on July 1, 2019.

Charged With a Misdemeanor or Felony Crime in California?

Most people in the criminal justice system are first-time offenders. For many accused people it may be the first and only criminal case they have in their lifetime. Understanding your rights and the steps involved to resolve a criminal case brings peace of mind during a turbulent and scary time for you and your loved ones.

Contact an experienced and knowledgeable San Diego Criminal Defense Attorney who can help mitigate penalties and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged. Continue reading

October 19, 2016

New Law May Complicate Release of Charlotte Police Video

by David M. Boertje

In the latest fatal civilian shooting to make national headlines, Charlotte, North Carolina police have shot a man named Keith Scott. Scott, like many victims of police shootings, was a black man whom his family claims was unarmed and not a threat. While protesters have filled the streets in the last few weeks, a new North Carolina law took effect on October 1 that will make it much harder for the public to see the footage of what happened to Keith Scott.

The law passed by the state’s Republican-controlled Legislature runs counter to a nationwide trend in which some cities are actually trying to push transparency to earn back the public’s trust. It would make any video footage by body cam and dashboard cam not a matter of public record. This would mean that only a judge can release it, and the footage would be exempt from public information act requests.

Calls for the release of the video have become the crux of the protests that ensued after the news of Scott’s death broke. The Charlotte police department refused to release the video to the public. As of September 24, Keith Scott’s family released the first and only publicly available video which was recorded by cell phone by Scott’s wife.

All Police Body Camera Bills Have Failed in California This Year

For the second straight year, California’s legislature has failed to pass any major legislation regulating police body cams. Multiple bills, both to boost transparency and restrict access, have failed to garner support from lawmakers.

Police departments may adopt their own voluntary policies on police cams. The LAPD became the largest agency in the country to adopt body cameras with an announcement earlier this year, after four years of study and a pilot funded by donations. All 7,000 LAPD officers will wear body cams by the end of 2016, at the cost of $1.5 million.

Police Cam Footage Exempt

Standards for the release and storage of footage vary across departments across the country. As criminal evidence, police body cam footage is also currently exempt from California’s state law concerning public records. Currently, three Northern California counties have adopted guidelines for how long the video footage should be kept, but individual departments are not obligated to follow them. Attorneys who represent law enforcement recommend that departments keep their footage for two years.

In San Diego Specifically, public release of footage is prohibited unless approved by a Police chief or designee. Continue reading