Law enforcement and the First Amendment: What you need to know

The Georgia First Amendment Foundation’s Law Enforcement and the First Amendment virtual training session on Oct. 9 explored ways the First Amendment protects the public’s right to record police; the rules of engagement when journalists and citizens record police in action; and how free speech rights come into play in encounters between the public and police.

Watch the video to get the facts from our panel of experts:

  • Vic Reynolds, Director, Georgia Bureau of Investigation
  • Zoe Bambara, Community Organizer & Activist
  • Sarah Brewerton-Palmer, First Amendment Attorney, Caplan Cobb LLP
  • Clare Norins, Director, First Amendment Clinic, UGA School of Law
  • Gerry Weber, First Amendment Attorney, Gerry Weber LLC and Southern Center for Human Rights

Want to know more? Check out these additional resources:

Police departments across Georgia should adopt Citizens’ Right to Record policy

Citizens’ recordings of police actions have become catalysts for change and reform. The Georgia First Amendment Foundation urges local governments and police departments across the state to codify citizens’ right to record police activity. We call on local public officials to amend law enforcement agencies’ standard operating procedures with rules for how public employees —including police officers — enable, store and dispose of photos, videos and audio recordings of police activity.

Below is a template local governments can follow, modeled on standard operating procedures some police officers already are following in Georgia.

Template for Citizens’ Right to Record

All public employees, including law enforcement agents, are prohibited from interfering with a citizen’s right to document police activity through photo, video or audio recordings. This prohibition is in effect as long as recording by the citizen does not physically interfere with the performance of a police officer’s duties.

All public employees are prohibited from intentionally deleting or destroying the original or sole copy of any photograph, audio or video recording of police activity created by a member of the public.

All public employees are prohibited from intentionally deleting or destroying the original or sole copy of any photograph, audio or video recording relating to any use-of-force disciplinary process.

Recordings of police activity must be retained as required by the Georgia Archives’ Local Government Retention Schedules for public safety records.

The penalty for violating these rules governing Citizens’ Right to Record is dismissal from public employment.

Q&A with First Amendment attorney and GFAF board member Gerry Weber

Gerry Weber

Q: What’s the history behind the framework for the Citizens’ Right to Record?

A: We really began to understand the impact of citizens’ right to record after Rodney King was beaten by police officers in Los Angeles in 1991, and the beating was videoed by a citizen from a nearby balcony. In Georgia, the issue gained traction more than 20 years later after high-profile cases in which police seized and, in some instances, deleted footage from cameras and cellphones. One of the resulting reforms, emerging from a 2015 court order, was an Atlanta Police Department policy detailing citizens’ right to record police activity. The Atlanta Police Department has updated the policy over time, as more cases have come to light.

Q: Have you seen results since these rules took effect?

A: The good news is we have seen that when police officers are properly trained about the policy and citizens’ rights, many embrace these rules. But, unfortunately, there are still plenty of instances of police officers interfering with citizens’ video, audio or photographic documentation of police activity. During the recent protests in Atlanta, journalists were even detained and arrested after documenting police activity.

Q: What’s your advice to local governments and police departments that want to add a Citizens’ Right to Record to their law enforcement protocols?

A: The time to do it is now, and the template the Georgia First Amendment Foundation has put together can simplify the process. Our template tracks what the Atlanta Police Department has done, and it also aligns with laws guaranteeing citizens’ constitutional rights.

It’s a good policy that enables an additional check on police officer conduct. It builds public trust, particularly in communities of color, and the policy has the power to save lives. From a taxpayer perspective, greater public oversight can lead to fewer instances of police misconduct and reduce the number of lawsuits against aggressive policing that taxpayers end up paying for.

The policy needs to be supported by training that explains citizens’ rights to police officers and supports a culture of accountability, community engagement and personal responsibility.

Q: What other rights do Georgians have when it comes to police oversight?

A: Citizens can request police videos, incident reports, disciplinary records, police policy documents and more under Georgia’s Open Records Act, as outlined in GFAF’s Red Book, Sunshine Laws: A Guide to Open Government in Georgia. Our Blue Book, Georgia Law Enforcement and the Open Records Act, is also an important resource. Georgians have the power to play an active role in police accountability and the push for change in our communities.

Q: Do you see other opportunities to increase public oversight of police actions, especially following protests against police brutality and misconduct? If so, what would you like to see happen next?

A: The move to make police body cameras mandatory is incredibly important. But it can’t just be about the equipment. Policies and protocols must be in place to ensure cameras are functioning properly each and every day to capture police activity, particularly use of force. In addition, police departments and the government agencies that fund them must have strong record retention policies and procedures in place to ensure captured images are properly archived and easily accessible to citizens, preferably online.

In addition, to truly build public trust, police departments should seek out and make immediately accessible both their own videos and public videos from citizens’ cellphones, businesses’ security cameras and other sources. These citizen videos have sparked calls for reform and led to greater accountability by police departments in Georgia and around the country.

Gerry Weber, a founding board member of the Georgia First Amendment Foundation, is a First Amendment attorney and senior staff counsel at the Southern Center for Human Rights. He formerly served as legal director of the American Civil Liberties Union of Georgia.

Know your rights: Tips for journalists covering protests

Journalists in Georgia and across the nation have been arrested or detained while covering recent protests. Learn about your rights and what to do during police encounters with a tips sheet prepared by the UGA School of Law First Amendment Clinic’s legal intern Jeffrey Murphy, law fellow Samantha Hamilton and Clinic Director Clare Norins, a Georgia First Amendment Foundation board member.

Read and share Know Your Rights: Tips for Journalists Covering Protests.

Courtesy of Georgia Recorder

How to get the public information you want: Guidance from an elected official

By Lisa Cupid

One area where my positions as a citizen and an elected official fully align is in my support for government transparency. Transparency helps citizens get information they need, and it also helps elected officials get out information about what we are doing, how we are doing it and why.

Lisa Cupid

The process of transparency is often adversarial. Instead of citizens and elected officials working together to get to the bottom of a matter, transparency is often hampered by a presumption of conflict that gets everyone off on the wrong foot. Requesters of information may think that elected leaders always have something to hide. Elected officials and even government staff may be frustrated by requests that seem too broad or seem to make demands without regard for courtesy.

Let me be clear: Information that is accessible to the public under Georgia law and the First Amendment to the U.S. Constitution must be provided by government entities without exception. Even if the request is broad or demanding. Still, if you are a citizen or journalist making a request, the way you ask for information can actually improve the likelihood of getting relevant information as soon as possible.

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Watch a video of Commissioner Cupid discussing the importance of good communication when seeking public information.

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So, what’s behind our transparency process problem? In my experience, there are a few causes.

There might truly be bad intent on behalf of those requesting information or those with a desire to withhold it. But this is actually the least common of all the causes I’ve witnessed.

  • More often, a request for information might take a long path to the right source. As an elected official, I often get requests for information from constituents, and while I am happy to help them, the quickest route would be to for them to walk into or call the county clerk’s office. Making the request of those closest to the documentation will almost always yield a more thorough and faster response.
  • A problem with transparency also might be caused by a downright lack of knowledge about the law. Georgia’s Open Records Act and Open Meetings Act are long and complex. That’s why the Georgia First Amendment Foundation produces a citizen’s guide to the state’s Sunshine Laws. Even though I am a foundation board member, lawyer and two-term elected official, I have found myself in the awkward position of not knowing that an action taken by the board of commissioners was in violation of the Open Meetings Act. I’m confident many other public officials have had the same experience.
  • By far, most transparency issues emerge from miscommunication or from challenging exchanges between those seeking information and those charged with providing it.

So, what can we do to smooth and simplify the flow of public information?

If you are a citizen or journalist, ask for help — not just in receiving information, but also in how to ask for it clearly and concisely. Go to the clerk’s office, email the planning department, call the staff person who administers a program in which you are interested. Tell them what you would like to know and ask for guidance on the most efficient way to get that information. Most of us in public service feel we are called to help. Requests framed with that understanding appeal to the very core of why we are in our respective positions: to serve the public good.

Become versed in Georgia’s open government laws so you can identify whether access to information is being intentionally or ignorantly subverted. Check out the foundation’s tips for requesting public information, as well as our Red Book, A Citizen’s Guide to Open Government, mentioned above. In addition, look for opportunities for in-person training; our foundation experts lead or participate in several government transparency training sessions throughout the year. If you don’t already receive our training schedules and updates, email us at info@gfaf.org and ask to be added to the list.

If you are a government employee or elected official, seek out information and training sessions — including refresher courses — to ensure you understand transparency laws and have current knowledge. Again, the foundation is a great resource. Check out not only the Red Book, but also the Blue Book, Georgia Law Enforcement and the Open Records Act. The foundation provides in-person open government training to agencies, as well; email us at info@gfaf.org to learn more.

In today’s climate of political contentiousness and “fake” news, it can be wise to go to the original source of public information. The foundation’s efforts help support a free flow of facts that creates more informed citizens and more engaged and responsive elected officials. Whether you’re an interested citizen, an elected official — or, as in my case, both — that is help we all can benefit from.

Lisa N. Cupid, a GFAF board member, is an attorney and a Cobb County commissioner representing District 4.