This policy provides employees with guidance for dealing with situations in which they are being recorded; to include photographing, videotaping, audiotaping, or similar techniques, by members of the public or the media.
Members of the public and media representatives have a First Amendment right to record employees in public places, as long as their actions do not interfere with the employee’s duties or the safety of officers or other employees. It is the policy of the Michigan State University Police Department (Department) that employees should assume that they are being recorded at all times when on duty in a public space.
Capturing of images, audio, or both, by means of a camera, cell phone, audio recorder, or other device.
The storage source for visual or audio recordings; whether using film, analog, or digital means.
Persons in Public Spaces
Parties who are lawfully in public spaces or locations where they have a legal right to be present have a First Amendment right to record things in plain sight or hearing and that includes employee activity.
Police may not threaten, intimidate, or otherwise discourage or interfere with the recording of any activities.
However, the right to record is not absolute and is subject to the following legitimate and reasonable legal restrictions:
The party must maintain a reasonable distance from the employee(s) engaged in enforcement or related duties.
Parties engaged in recording activities may not obstruct employee actions. Examples of obstruction occurs in the following ways:
Direct physical intervention
Tampering with a witness, victim, or suspect
Persistently engaging an employee with questions or interruptions
Recording must be conducted in a manner that does not unreasonably impede the movement of emergency equipment and personnel; or the flow of vehicular or pedestrian traffic.
The safety of employees, officers, victims, witnesses, and third parties shall not be jeopardized by the recording party.
Parties who obstruct police or other employee actions shall be informed that they are engaged in prohibited activity and when appropriate, given information on acceptable alternatives prior to making an arrest.
The arrest of a party who is recording officers in public shall be related to an objective, articulable violation of the law that is unrelated to the act of recording.
The act of recording in itself does not provide grounds for detention or arrest.
The arrest of an individual does not provide an exception to the warrant requirement and does not justify searching the individual’s recording equipment or media.
However, equipment may be seized incident to an arrest; but downloading, viewing, or otherwise accessing files requires a search warrant or a recognized exception to the warrant requirement.
Officers shall follow directives in other policies for evidence management and prisoner processing (INV01 and INV07).
Seizure of Recording Devices and Media
Absent the arrest of the recording party, recording equipment may not be seized.
Officers shall not order an individual to show recordings that have been made of enforcement actions or other employee operations.
If there is probable cause to believe that evidence of a serious crime has been recorded, an officer shall do all of the following:
Seek advice and instructions from a supervisor
Ask the person in possession of the recording if he or she will voluntarily and temporarily relinquish the recording device or media so that it may be viewed and/or copied as evidence
If there are exigent circumstances where it is reasonable to believe that the recording will be destroyed, lost, tampered with or otherwise rendered useless as evidence before a warrant can be obtained; the recording device or media may be temporarily seized for a reasonable time to obtain a search warrant or court order to examine and copy the recording
If it is objectively reasonable to believe that immediate viewing of recordings is necessary to prevent death or serious bodily harm of another before a warrant can be authorized, the recording device or media may be seized and viewed.
Those facts must be captured in the incident report.
Whenever a recording device or media is seized without a warrant or obtained by voluntary consent, the seized item shall be held in police custody no longer than reasonably necessary using due diligence to quickly obtain a warrant.
Return of the item must follow Departmental evidence or property release protocols (INV07).
The owner/operator must be given instruction on how it can be retrieved at the earliest possible time and property receipts shall be provided to the owner.