The tactics police are using to prevent bystander video

Kian Kelley-Chung was wearing a black T-shirt with the logo of his documentary and art collective on the day last summer when he found himself filming the Washington, DC, police during a protest. It was August 13, 2020, and Kelley-Chung had been recording Black Lives Matter demonstrations in the city for a couple of months. At this one, in the Adams Morgan neighborhood, he saw an officer push somebody to the ground-and as he rushed over to film it, he says, he was shoved by an officer himself. Quickly he was trapped, or kettled," with a small crowd of people.

Kelley-Chung says that's when an officer carrying zip ties said he had to arrest someone, before looking directly at him, grabbing him, and pulling him out of the kettle. Kelley-Chung-whose photos had been published in the Washington Post-was carrying multiple pieces of video equipment, along with his cell phone.

I yelled out, They are arresting a journalist!'" he says. Others in the crowd echoed his call, but he was shuttled to multiple precincts and spent hours in a small cell with a maskless person. He was released the next day with no charges, as were most of the 40 other people who were arrested at the same protest, but the police kept his equipment and phone.

That equipment might still be in police custody, he says, if he hadn't secured legal assistance. After 10 weeks, with the help of the National Press Photographers Association and First Look Media's Press Freedom Defense Fund, lawyers finally got Kelley-Chung's equipment back. Once that was achieved, they sued the police for civil rights violations, with a complaint that accused the District, the Metropolitan Police, and its acting chief, as well as multiple officers and local officials, of violating his privacy and his rights under the First and Fourth Amendments. They settled the lawsuit in April: Kelley-Chung was awarded a substantial" sum.

Filming the police has become a popular tool of accountability that is simultaneously essential and dangerous. Because of a video filmed by a bystander, we know that Minneapolis Police officer Derek Chauvin murdered George Floyd, a Black man in his 40s, by kneeling on his neck for nearly nine minutes. Without the video that 17-year-old Darnella Frazier took, it's very possible Chauvin would not have been convicted: when police first described Floyd's death in a press statement, they claimed that it had occurred after [a] medical incident during police interaction."

People film the police because they know that officers hurt or kill people and lie about it; because it is generally within their First Amendment rights to do so; and because recording an encounter with the cops might make them feel a little bit safer. Police departments cannot simply be taken at their word, and independent video of possible misconduct or violence can sometimes be the only thing with the power to make a false police narrative give way to the truth.

But as Kelley-Chung found, police officers aren't simply letting this happen. Even though filming the police is generally legal if it doesn't interfere with their activities, and even though officers are increasingly carrying cameras themselves, they have developed a range of tactics to prevent their actions from being documented.

And if you want to know how they do it, you can ask a cop watcher.

It puts the officer on notice"

Hamid Khan, an organizer with the Stop LAPD Spying Coalition, is one of a cohort of people who film the police in Los Angeles. Cop watchers do exactly what the term suggests: observe and document police doing their jobs. A couple of organizations train people in LA to safely film police and other city officials at work, whether it's to record how protests are monitored or to capture wrongdoing.

That training, Khan says, also includes strategies for handling the tactics that police will use to stop themselves from being filmed. These include bodying up," or physically blocking a camera with their bodies, and threatening, intimidating, harassing the people who are using video cameras."

As long as police are being recorded in public, carrying out their duties, we believe, and many federal courts have said, that the right to film the police is protected by the First Amendment," says Emerson Sykes, a staff attorney with the ACLU's Speech, Privacy, and Technology Project. That includes multiple decisions from US circuit courts, but not the Supreme Court, which has yet to weigh in. Recently, the 10th Circuit Court split from this consensus, issuing a decision in late March that declined to affirm the First Amendment right to record police.

Many states, including California, do stipulate that filming the police can be illegal when an officer determines that a bystander with a camera is interfering with an investigation. And while the right to take pictures and record video of police officers working in public is pretty uncontroversially established, audio recordings-including those made as part of a video-can be a trickier subject.

The Electronic Frontier Foundation's guide to recording police notes that in places with one-party-consent wiretap laws-38 US states and the District of Columbia-you can freely record audio. In the 12 states with two-party-consent laws, a plainly visible recording device puts the officer on notice and thus their consent might be implied," but police might argue differently.

Legitimate arguments, illegitimate situations

There are lots of reasons why a police officer might not want to be on camera. Some are more understandable than others, says Adam Scott Wandt, an assistant professor of public policy at John Jay College of Criminal Justice. In a sensitive encounter, like a domestic violence call, an officer or victim might not want identities revealed by a bystander sharing film on social media. Undercover officers, he says, are also resistant to being filmed and having their identities become public record.

These might be legitimate concerns, but cop watchers say they are also arguments that they've seen police officers use in illegitimate situations.

Wandt, who was an officer in New York's Long Beach for four years before cell phones with cameras were as common, says he has experienced this now that he's a professor and photographer. I have been asked on one occasion by a police officer not to photograph him," he says. He wasn't doing anything. He was standing on the subway. And the police officer said to me, Never take pictures of the police.' Obviously the law is not on his side."

The police officer said to me, Never take pictures of the police.' Obviously the law is not on his side."

Adam Scott Wandt, John Jay College of Criminal Justice

Multiple cop watchers say they've repeatedly seen police officers cite interference in completely unwarranted situations, often as an implicit threat. They are, says Khan, almost in a sense, trying to create conditions ... where they can show that, you know, people are interfering with their work, which is not true."

I've been threatened with it," says Jed Parriott of LA Street Watch, which advocates for the rights of people experiencing homelessness. He's also had police officers tell him that the unhoused people he's filming don't want him there and that his work is exploiting them, when he knows for a fact that his presence at this specific moment is welcome and wanted.

Street Watch spends time in encampments in the city, documenting the way police and city officials treat their inhabitants and watching for sweeps," which are essentially mass evictions. The organization was supporting the encampment at Echo Park Lake until the city closed the park for repairs and kicked out every one of the couple of hundred people who lived there. In Echo Park, Parriott was filming while park rangers argued with, and then tackled, a young Black resident.

I was really, really worried," he says. A very tense moment. But as this was going on, the rangers pinned him to the ground and I was right there, five feet away, filming everything. People screaming all around me, yelling. A sanitation worker put his hand in front of my camera." Then, he says, an LAPD officer blocked his view with his body. You just adjust and move," Parriott says.

LAPD officers are trained to handle bystander recordings as a First Amendment right, says Lieutenant Raul Jovel, a spokesperson for the department, and that training is reiterated on a regular basis. When officers go against that training, Jovel says, the department's response varies from a reminder of the public's right to film them to a personnel investigation and disciplinary action.

Officers can be particularly resistant to allowing someone with the right to film to continue to do so, he says, when they believe the person with a camera is also yelling at the police. Sometimes as an officer, you're like, Wait a minute. I have the right to speak for myself," Jovel says. What we have to remind officers is,: I hate to tell you this, but you are a public servant, and this is part of the job.'"

The Los Angeles Park Ranger's manual includes a section on recordings made by members of the public, where it recognizes this act as a right, advising that rangers will not prohibit or intentionally interfere with such lawful recordings."

Sykes notes another situation that can be tough for those recording the police to navigate: when an officer seeks to view a photo or asks you to delete it, with the implicit or explicit suggestion that you'll go free if you comply. It is, Sykes says, unlawful for an officer to do this. A warrant is generally required to view your photos or take them as evidence. Even if they have a warrant from a judge, and even if you're arrested, they still don't have the right to delete the photos," he adds.

Not everyone who might capture police misconduct will have been trained in advance. Parriott and other activists regularly distribute flyers to inform people of their right to film the police, because police will tell people they don't have that right when in fact they do.

How to stay safe

But even if it's legal, it's not always safe. In August of last year, a father who stepped out of his own car to film across the street from where his son was being arrested was pepper-sprayed and handcuffed. Kelley-Chung, the documentarian, says he first experienced the sense of danger a couple of years ago when he and a friend were pulled over for a minor reason on their way back to college. He recalls that the officer pulled his friend out of the car, angry that they had not fully opened the window. He wanted to film the rest of the encounter but was confronted by another officer when he reached into his pocket to retrieve his phone.

Regardless of what an individual officer intends, Wandt says, many just don't want things on camera in case things go sideways," and they especially don't want to be in a viral video if that happens, That prospect is likely driving a lot of officers to try to interfere illegitimately with bystander recordings. In some cases, they are preemptively trying to cover for a colleague who is prone to violence. There are police officers who consider themselves warriors, who will use an extreme amount of force when force is required," Wandt says. Those officers obviously don't want their face or actions caught on camera."

Staying safer while recording police activity requires different tactics depending on the situation. Bystanders witnessing police violence in a public space should keep a distance, Kelley-Chung advises-that way you can't be accused of being a participant. If you get pulled over? Get a passenger to start filming right away, before the officer approaches your window (reaching into your pocket for your phone can also be extremely dangerous, particularly for people of color). If it's legal in your area, a dash cam might be an alternative, Wandt suggests.

As much as a cell-phone camera offers protection, Wandt says, it's also important to keep in mind that once somebody takes out a camera and starts filming an arrest, it absolutely changes the nature of the situation for everybody, from the victim to the suspect to the police officer."

There's the law, there's the Constitution, and then there's what you do when you're face to face with the police," says Sykes, the ACLU attorney. Figuring out exactly how much to push back against a police officer who is giving an unlawful order is tough," he says, especially in certain circumstances-for example, at a protest.

There is a special flavor of risk when you're protesting the police and the police are armed and standing feet away from you," Sykes says.

On-the-ground experience is really the only way to read whether a situation at a protest is safe. But one thing Kelley-Chung has observed is that the presence of a camera filming an officer can protect others from misconduct.

When you see people in a verbal dispute with police, get as close as possible," he says. That camera can be more protection than a tactical vest."

In any situation, everyone we spoke to had the same caveats: Do not interfere in police operations. Comply when police tell you that you need to move, but you do not have to stop filming from a new location, even if they claim you must, as long as you are recording an officer in a public space carrying out their duties.

Cop watchers generally advise others to collect identifying information on police at the scene, and to note the time and location. You could ask for a badge number; Parriott says most officers actually just carry business cards.

A mine of misinformation

No single video is going to change how police act, and experts argue that even large numbers of videos cannot change the culture of many police departments. On the contrary, police have found ways to use video, especially body camera footage, to reinforce and control their own narrative in cases of possible violence or misconduct.

People like to think that video is simply a neutral tool for capturing information, says Jennifer Grygiel, an assistant professor of communications at Syracuse University-but it's not, and how it's released, and in what context, needs additional vetting.

They get to set the narrative when it's released, which controls the initial public sentiment around it and opinion. They also push it out on their social media, and their accounts are just like everybody else's in that they grow their audience. So then they get people following them there because they're the first to publish information," Grygiel says. Their own research deals with how police departments use social media to bypass fact-checking by journalists: it started after they noticed how police were pushing out mugshots on local Facebook pages. People were going in there, like an old public square, and harassing people who had been arrested," Grygiel says.

As police become better at producing their own media, finding an audience outside of journalism, and making the most of accountability measures like body cameras, Grygiel argues, independent documentation of police officers working in public can serve as a counter to that messaging. Sometimes, as was in the case with the Floyd murder, that documentation happens spontaneously, and often amid great distress, when clear instances of police violence or misconduct are unfolding in real time.

But the capacity for police and police-affiliated organizations to spread misinformation was obvious during the protests in the summer of 2020, when police departments repeatedly promoted inaccurate information. Some of that misinformation went viral, aided by sympathetic media coverage and the right-wing internet, hell-bent on reinforcing the belief that anti-racism protests are merely a conduit for a violent war on cops.

Police unions promoted an alarming claim that Shake Shack employees had intentionally poisoned" a group of police officers in Manhattan. The story had been dispelled by the next morning: NYPD investigators said the foul-tasting substance in the three officers' milkshakes wasn't bleach," as the unions speculated, and it wasn't added to the drinks on purpose. Although the Police Benevolent Association and the Detectives' Endowment Association both eventually deleted their tweets making the accusation, they had tens of thousands of retweets, and triggered a wave of credulous coverage in conservative and mainstream press. Media write-ups about the tweets got tens of thousands of shares on Facebook and continued to circulate even after the story was debunked.

And this was just one example. Last summer, NYPD Commissioner Dermot Shea reposted a video of police removing bins of bricks from a South Brooklyn sidewalk, claiming they were the work of organized looters" offering protesters materials to use for violence, despite little evidence that this was actually true. The NYPD also circulated an alert to officers with images of coffee cups filled with concrete, which closely resemble concrete samples used on construction sites. In Columbus, Ohio, the police tweeted out a photo of a colorful bus that they said was supplying dangerous equipment to rioters," fueling already rampant national rumors of antifa buses" descending on cities. In fact, the bus belonged to a group of circus performers, who said the equipment police cited as riot supplies included juggling clubs and kitchen utensils.

In short, police still lie despite being watched more closely than ever. There are hundreds of videos of police misconduct at the summer protests alone, some from the body cams introduced in reforms meant to hold them more accountable. But Kelley-Chung thinks there's only so much difference any one video can make.

I've seen people filming officers with their cameras out in the moment and then get tackled by police," he says. They know they're on camera ... and yet they still continue to abuse."

And even after he reached his settlement with the DC police, there's an aspect of that day he can't stop thinking about. Kelley-Chung is Black, and his filming partner, Andrew Jasiura, is white. They were both dressed in the same T-shirt, carrying the same sort of camera equipment. Officers saw Jasiura too: They pulled him out so they could talk to him," says Kelley-Chung.

That's when Jasiura told police that his partner was a journalist too. They continued to arrest him anyway.