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RECORDING YOUR RIDE: EVIDENCE & LIABILITY - PART II

The age of helmet and bicycle mounted cameras such as GoPros, Contours, and Fly 6s has opened up a world of possibilities that enhance recreation and entertainment. But this technology also has legal implications that bicyclists should keep in mind. Therefore, we’ve put together a two-part series on this important issue.

On the one hand, recording your ride can preserve important evidence if you are injured in a crash or if you are stopped by a police officer. If you were doing nothing wrong, the video may vindicate you, or it may show that the person who hits you was at fault.

On the other hand, you should also exercise caution when it comes to recording your interactions with other people in order to avoid running afoul of eavesdropping and privacy laws.

Police Officers

One of the hottest topics in the law today is the public’s right to record police officers in the scope of their duties. Many states have attempted to ban this practice, and others (including California) have expressly made it legal. While there are First Amendment issues involved here, some states recognize a public right to film the activities of police officers in public while carrying out their official duties.

California’s Penal Code §148 (the statute concerning resisting arrest and interfering a police officer) was recently amended to clarify that recording a police officer “while the officer is in a public place” or the person recording is “in a place he or she has the right to be” is neither a violation of the statute, “nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.” (Penal Code §148(g), see also Penal Code §69).

The rationale for this is that because police officers are public servants, they do not have an expectation of privacy in doing their job. Rather, they are expected to be accountable to the public.

It’s not just police reform activists who support transparency and accountability either. Many law enforcement advocates also recognize the importance of video evidence. Technology such as MVARS (dash cams) and body worn cameras have proliferated in recent years. Many people recognize that filming an encounter can protect both the police and the public. By having video evidence, it becomes more difficult to falsely accuse an officer of misconduct. Most police officers understand this and do not mind being recorded. Although police agencies are not required by law to use body cameras, many local departments have implemented them. For those that do, the legislature has prescribed that the agencies establish policies and procedures in keeping with best practices for downloading and storing the footage. Penal Code §832.18.

However, you should be careful about how and where you do this. You may record a police officer engaged in public duties, so long as you do not interfere with them. In other words, there are two situations in which you may not film a police officer:

  1. You may not film a police officer who is not on duty and does not consent to the recording. This exposes you to the same kind of criminal and civil liability discussed above under the California Invasion of Privacy Act.
  2. You may not film a police officer in such a time, place, and manner that it interferes with their duties. This is a violation of Penal Code §148. Please see our blog post and listen to our Podcast episode “What is a Lawful Order” (http://www.911law.com/Legal-Blog/2017/March/What-is-a-Lawful-Order-.aspx

If you get too close to an officer performing an investigation, and they tell you to move away, you should listen. You also may not enter private property without permission in order to film police activity. If you’re told to move, this is a lawful order. This does not mean you have to stop recording, but you do have to give the officers the space they need and avoid trespassing. Failure to comply with a lawful order not only puts you at risk of arrest, but also could jeopardize their investigation and put both you and the officer in danger.

You are permitted to film an encounter with the police if you are pulled over. But keep in mind that any evidence obtained in this way can be used against you as much as it can be used against them in court. If you are going to film a police encounter, you should be calm and respectful, not belligerent and hostile.

Social Media and Cell Phone Evidence

Another issue relating to technology and privacy is the role of social media and cell phone evidence. It is critical to understand that you do not have an expectation of privacy on your social media posts. This is true regardless of your privacy settings. Anyone who is permitted to see your posts may legally copy and disseminate them. Even if you delete a post, it can resurface in this way if someone screen caps it before you remove it. Obtaining information in this way is not a violation of the Invasion of Privacy Act, and evidence gathered on social media can be used against you in court. Again, regardless of your privacy settings, your Facebook posts are considered public, and you have no legally protected expectation of privacy. This is why I always advise my clients to never discuss their cases or post sensitive or potentially damaging information on social media.

Finally, cell phones are an important source of evidence also—particularly in the age of smart phones. Unlike with your social media activities, you do have a legitimate expectation of privacy on your cell phone. In 2014 the U.S. Supreme Court ruled that the Fourth Amendment’s warrant requirement applied to data stored on cell phones. Riley v. California, 134 S.Ct. 2473 (2014). The reasoning was that in the age of smart phones, an immense amount of personal data is now stored on these devices, and that a person does not forfeit their expectation of privacy in that data merely by carrying it around with them. Unlike posting information on the internet, simply storing information on your personal device does not forfeit your reasonable expectation of privacy.

Conclusion

Video evidence can be a great tool for getting to the truth and for promoting accountability for all parties involved. But it is important that it be used wisely, especially in a legal environment in which privacy protections are paramount. If you have a legal issue involving video evidence, whether of a police encounter or a bicycle-related injury, contact the Law Firm of Richard Duquette. With 34 years of legal experience, Mr. Duquette can help you navigate the sometimes complex legal issues. Let a knowledgeable and experienced attorney deal with the police, witnesses, and insurance adjusters. If you go about trying to prove your own case without understanding these issues, you can end up not only losing your case, but also getting into serious legal troubles.

© 2017 Richard L. Duquette, Esq. and Justin M. Nelson, Esq. All rights reserved.

Categories: Bicycling and the Law
Law Firm of Richard L. Duquette - Oceanside Criminal Defense Attorney
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