Berkeley Copwatch has criticized updates to Berkeley Police Department policy on the rights of onlookers, which the organization says will restrict citizens’ rights to observe and record police officer activities.
A statement released by Copwatch on Aug. 6, which contains criticisms echoed by some legal experts, says that the specific language of the policy provides too much discretion for officers to restrict citizen observation, determine how far away observers must remain from an incident and exclude onlookers from listening in to conversations with detainees. BPD maintains that the purpose of the updated policy is consistent with past policies and that Copwatch’s issues just address changes in wording.
While the old 1983 policy required officers to put the “least possible restrictions” on observation rights, the new language states that officers should “minimize restrictions on public observation.”
“Laws are just wording — of course it’s the wording,” said Copwatch member Andrea Prichett. “Maybe it doesn’t matter to them, but to those of us not walking around with guns and batons, this is our only protection.”
BPD spokesperson Officer Jennifer Coats said the policy was updated to specify the right to photograph or video record officers, which resulted in changes in language.
“We expect that the public will videotape, photograph and otherwise observe officers unless there is an instance where an officer thinks that there is an interference or that the observer is not maintaining a safe distance,” Coats said. “If someone is making the officer uncomfortable, they have the right to ask that person to step back.”
Prichett said language changes such as this, as well as other provisions limiting recording to an undefined “safe distance” from the officer, provide too much discretion to officers to limit observers’ rights beyond what is outlined in California penal code.
According to Jay Leiderman, an attorney from Ventura, California, who specializes in criminal law, officers’ ability to decide what right the public has to observe them is the “scary” part of the new policy.
“If officers have the power to restrict individuals, they will use it,” Leiderman said. “By saying it’s just the wording, they’re just laughing this issue off.”
Police policy also continues to make observers’ rights to communicate with detainees contingent on both the citizen’s and officer’s permission, which Coats said was a way to protect the privacy of citizens in sensitive cases such as sexual assault.
According to Rachel Lederman, president of the Bay Area chapter of the National Lawyers Guild, individuals who record interactions with officers do not focus on victims of sensitive crimes. Lederman said the new general order would restrict observers’ rights to record officer misconduct, a right that is “crucial” in the national dialogue on police actions.
In San Francisco, police department general ordinances more specifically lay out exceptions to onlookers’ rights to overhear conversations with detainees, limiting them to cases in which the detainee objects or in which there is a “specific and articulable need for confidential conversation.”
Coats declined to comment specifically on the Copwatch statement.
“A city like Berkeley should be a model for others, not trying to restrict onlookers’ rights,” Lederman said.
Copwatch members have had problems with officers shining flashlights in their cameras, ordering them back from the scene and stepping in front of their cameras, Prichett said. She said she would like BPD to retain the old policy language and train officers in how that might look in a variety of situations.