Verdict Sets Key Precedent

A ruling related to last week’s verdict that EPD Sgt. Bill Solesbee used excessive force to arrest Josh Schlossberg in 2009 added to Oregon’s existing case law, which recognizes the public’s right to tape police officers and others — in some cases with notification of the videotaped person and in some cases without it. U.S. District Magistrate Judge Thomas Coffin ruled that Solesbee also violated Schlossberg’s rights by searching his camera without a warrant.

Lauren Regan, the Civil Liberties Defense Center attorney who represented Schlossberg, says that if an event is public, like a meeting, rally or sporting event, there’s neither an expectation of privacy nor a chance that every person who might be taped could be notified, so it’s legal to tape in those cases without making an announcement.

However, Regan says the CLDC advises exercising caution to prevent problems. “We still train cop watchers that if they come upon police while at a rally or a protest that they should still give this notice requirement,” she says. The notice requirement can be given by turning on the camera and saying, ‘I’m audio and video recording you.’ Regan says that having the notification on tape, even if the taped person doesn’t acknowledge it, is a solid defense against being charged with unlawfully recording. “If you were to ever end up charged with that crime, that would be your total defense, that that statement is on the audiotape.”

In the circumstance that law enforcement doesn’t respect a person legally recording, Regan says the wise thing to do is to verbally object while not putting up any physical resistance. “The first thing that they should say is ‘What’s your lawful basis for seizing my camera?’ and the other thing they should say is ‘I do not consent.’”

Getting those statements on tape clarifies that the camera can’t be searched without a warrant, and Regan says the Schlossberg ruling solidifies the case law that cops can’t search a camera without a warrant or consent.

Last week EPD Chief Pete Kerns told EW through a public information officer that “Legal minds differ on whether searching a camera incident to arrest is allowed in today’s search and seizure environment.”

Regan says that any gray area that may have existed regarding the search of a camera incident to arrest was settled by the Schlossberg case, and “all of the other legal issues: the false arrest, the excessive force … there is no argument that can be made that these were unsettled areas of law.”

EW asked EPD for information on how much fighting this court case cost the city but EPD said it would only release the information if presented with a public records request. EW has filed a request. 

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