The law is unclear as to when can police take videos from witnesses who film officers or crimes

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In the early morning of May 8, David Sal Silva died after an encounter with Kern County sheriff's deputies and CHP officers in Bakersfield. The incident – in which police are accused of beating Silva – may have been caught on video by a witness using a cell phone camera.

A disagreement over what was filmed, and what happened to the footage, is the latest controversy in the evolving relationship between the police, the public and cell phone cameras.

David Silva’s death

The Kern County incident happened just after midnight. At 2 a.m., according to attorney Daniel Rodriguez, sheriff’s deputies showed up at the home of two people who’d witnessed the alleged beating. They also asked one of the women to call her friend, Francisco Arrieta, who’d earlier called police and told them he’d taken video footage of the alleged beating on his phone.

When Arrieta arrived, deputies asked him for his phone, and he refused to hand it over without a warrant, Rodriguez said. Arrieta told the deputies he was leaving, and they stopped him.

“‘They said, no you’re not leaving,’” Rodriguez said the deputies told the group. “‘We’re freezing the situation. We’re freezing the house here.’”

Rodriguez said a search warrant arrived 10 or 11 hours later. Arrieta, who had to leave for work around 8 a.m., eventually relented and gave the deputies his phone. Rodriguez said deputies did the same with another witness, Maria Melendez, who’d taken cell phone footage at the scene.

According to Bakersfield attorney David Cohn, who’s representing the Silva family, Kern County Sheriff’s Department had the phones for about five days before turning them over to the Bakersfield Police Department and eventually ending up at the FBI’s office in Sacramento.

When the phones came back to their owners, Cohn said, “one cell phone had a video, and the other did not.”

The phone of another witness, Maria Melendez, contained no footage of the incident. Video from Arrieta’s phone, posted online earlier this week, appears to document the aftermath of the actual incident. The video shows deputies giving Silva CPR.

A third video, given to Silva’s family by a community member with access to a surveillance camera, appears to show deputies striking a man on the ground with batons. But the video, which can be seen below, is quite grainy:

Last week, Kern County's coroner determined that Silva died from hypertension.

Silva's family has hired experts to review the coroner's report, as well as the videos.

Rodriguez said Melendez and Arrieta, meanwhile, are planning to sue the sheriff’s department for violating their civil rights, including wrongful imprisonment.

In a press conference, Kern County Sheriff Donny Youngblood addressed the controversy over seizing the phones.

“Our job is to seize evidence,” Youngblood said. “And in this case, I felt and I still feel it’s critical that we have every piece of evidence that we can so that we can come to the conclusion of the truth. Everybody, if you look around this room, our credibility’s on the line.”

The legality of filming police

Overall, the incident raised fresh questions about when it’s appropriate to film police, and when and if they can seize that footage.

It’s widely accepted at this point, said Loyola law professor Stanley Goldman, that it’s perfectly legal to film police while they’re on duty in public places.

“The problem is: Is it interfering with the officers in the performance of their duties?” Goldman said.

There are plenty of instances around the country where people filming police have been arrested for something other than filming.

There’s the San Diego man who filmed police with his cell phone while they issued him a ticket for smoking a cigarette on the beach. In the video, the officer tells Adam Pringle to stop filming and that cell phones can be converted into weapons. Pringle refused and was arrested for obstruction of justice.

Perhaps the most famous recent case is that of photojournalist Mannie Garcia (well known as the photographer who took the photo used in Obama’s “hope” posters). Garcia was leaving a restaurant in Wheaton, Md, in 2011 when he stopped to take pictures of police responding to an incident across the street.

According to Garcia’s civil rights suit, which is still making its way through federal court, an officer grabbed him by the neck, dragged him across the street and threw him to the ground before removing the memory card from his camera. Police arrested Garcia for “disturbing the peace.”

In March, the U.S. Department of Justice filed a brief in support of Garcia’s case.

“The United States urges to Court to find that both the First and Fourth Amendments protect an individual who peacefully photographs police activity on a public street,” according to the brief. “Second, the United States is concerned that discretionary charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights.”

Can police seize phones?

The question of when and how police obtain footage taken by witnesses to a possible crime seems to vary by department.

LAPD Commander Andrew Smith said that witnesses usually give their footage to LAPD officers voluntarily. And if not, it generally comes out eventually – whether on YouTube, in the media, or over the course of a civil lawsuit – without police having to seize anything.

But regardless, LAPD officers are instructed not to take witnesses’ cell phones or cameras.

“We’re not allowed to confiscate that from them,” Smith said. “We can’t go around confiscating people’s personal property just because we want to look at the video on it. I think that’s the philosophy we have as a department.”

Smith said he’s not aware of a time when LAPD obtained a warrant for footage.

But that policy is not universal among all departments.

In response to our inquiry, a spokesperson for the Los Angeles Sheriff’s Department said in an email that deputies with that department will sometimes seize a video if it relates to a homicide.

Long Beach's police department has no specific policy on cell phones or cameras.

Legally speaking, it’s really a case-by-case basis, said Stanley Goldman, the Loyola Law professor.

“It all depends if they have a warrant, or if there’s some exigent circumstance where they can’t get a warrant,” Goldman said.

If there’s reason to think that potential evidence would be destroyed if police didn’t seize it, they might have cause to do so, Goldman said.

Once they have it, “can they alter it, destroy it? No,” Goldman added.

The camera culture

Videos of on-duty police are at this point, ubiquitous – documenting everything from smaller slights to possible misconduct.

There’s the Venice cyclist ticketed for crossing into the wrong lane on the beach bike path – or was it for speeding? The officer waffles on that topic, as the cyclist, Chris Jackson captures the interaction on his helmet camera, which can be seen below. (After the video went viral, the ticket was voided “in the interest of justice,” according to NBC.)

And footage compiled recently by USC students whose party was shut down by LAPD officers in riot gear after a noise complaint escalated into a raid. (LAPD officials have promised to investigate the incident and recently attended an open forum on campus to discuss police actions.)

While ordinary citizens are quick to pull out their phones to document police actions, USC Law Professor Jody Armour said, it’s also become more and more acceptable for police to use surveillance tools like security cameras, dashboard cameras, and video cameras.

“We need reciprocity, there should be symmetry” in how the law treats both parties, Armour said. Moreover, he said, if police are doing nothing wrong, they shouldn’t worry about being filmed.

The camera culture, Armour said, has affected the power balance between ordinary citizens and police officers.

“Because the ordinary citizen is saying, ‘I’m going to make this transaction real transparent, officer, and you better behave professionally because any unprofessional behavior will be broadcast to the world,” Armour said.

The professor said LAPD learned that lesson long ago, with the infamous beating of Rodney King in 1992.  Now, smaller departments are realizing that what they do has the potential to reach a national and international audience.

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