The American Civil Liberties Union Foundation of Oregon (ACLU of Oregon) has announced that a settlement had been reached with TriMet, the City of Portland, and the City of Gresham in a federal lawsuit stemming from a 2013 incident when a Portland woman’s phone was seized while live streaming police activity. The lawsuit, Carrie Medina v. City of Portland, et al, argued that Medina’s constitutional rights were violated when a Gresham police officer snatched her phone from her hands, twisted her arm, and detained her while she was live streaming police activity.
“My experience may have been eye opening for many, but it was no surprise to those who have regular encounters with law enforcement,” said Carrie Medina, plaintiff in the suit.
The ACLU lawsuit alleged that police violated Medina’s free speech and free pressrights when they stopped her live stream broadcast of a police encounter involving multiple law enforcement agencies near a Trimet stop. The suit also alleged that Medina’s rights against unreasonable search and seizure were violated when the officer seized and then searched her phone without her consent or a search warrant, and that the officer also unlawfully detained her that day.
The settlement agreement stipulated that Portland and Gresham must adopt new police policies and training regarding the public’s right to film police activities. The City of Gresham’s new policy under the settlement went into effect in May 2016 and the City of Portland’s new policy went into effect in October 2016. The City of Gresham was also required to pay $85,000 in legal fees to Medina.
“Carrie wholeheartedly believes in the power of filming the police as a tool to increase accountability,” said Alan Galloway, attorney at Davis Wright Tremaine who represented Medina. “Carrie was clear that she wanted her case to bring about policy changes to protect the right to film police, not monetary damages. Although the settlement took a lot of time and effort to reach, the resulting policies and training clearly recognize the Constitutional right to film the police.”
“Bystander video has had an incredible impact on the way Americans understand police encounters,” said Mat dos Santos, legal director at the ACLU of Oregon. “Now anyone with a cell phone can expose injustice and hold police accountable. It is critical that police policies recognize and respect the public’s right to film police.”
At the time of the incident, Medina regularly filmed police activity and protests, describing herself a citizen journalist and as a “camera of accountability.” She cofounded Film The Police Portland, an organization dedicated to increasing police accountability by filming police encounters in the Portland area.
“Our group has been saying for years that police should always act as if they are being recorded, but I don’t know if that idea has sunk in with law enforcement,” Medina said.
While the right to record police is protected under the First Amendment, an outdated Oregon eavesdropping law previously required parties to “specifically inform” the subject of an audio recording. According to the ACLU of Oregon, the law had been inappropriately cited by law enforcement when unconstitutionally stopping bystanders from filming police activity.
In the 2015 state legislative session, the ACLU of Oregon helped to craft an exception (HB 2704) for recording police “openly and in plain view.” The update was passed by the Oregon House and Senate and was signed into law by Governor Kate Brown. It went into effect on January 1, 2016.
Oregon law is now clear that the public has the right to record law enforcement doing their jobs in public, but dos Santos says the ACLU of Oregon still hears from people who have been hassled, detained, or arrested, or who have had their devices confiscated for filming the police, including an incident in Portland in March involving another local activist, Benjamin Kerensa.
“We still see arrests, detentions, and seizures simply for filming the police,” dos Santos said. “With this settlement, we hope that law enforcement across the state will finally respect the public’s right to record. Otherwise, we’ll see them in court again.”
The ACLU of Oregon released a smartphone app in 2015 called Mobile Justice Oregon to educate the public about their right to film police. The app allows users to film police encounters and has information on rights with police. A copy of the video taken with the app automatically uploads to the ACLU of Oregon so it cannot be deleted or destroyed. The ACLU app has been downloaded over 21,000 times in Oregon. Mobile Justice Oregon is available for free in English and Spanish for iPhones or Android phones.
The ACLU of Oregon has recently encouraged Oregonians to use the Mobile Justice Oregon app to monitor Immigration and Customs Enforcement (ICE) activity in Oregon.
“We’re now asking people to use our app to take video of ICE raids in Oregon, to raise awareness of their notoriously harsh tactics,” dos Santos said.
Gregory Chaimov, Alan Galloway, and Tim Cunningham of Davis Wright Tremaine LLP and Charles Paternoster of Parsons, Farnell & Grein LLP represented Medina pro bono, in cooperation with the ACLU of Oregon.