In wake of police shootings, Seattle to consider law protecting rights of people who record police

The Seattle City Council on Wednesday will begin considering a proposal to enshrine in law the rights of the public to observe and record police.

Watching and recording police are protected to a great extent by the First Amendment, and the Seattle Police Department in 2008 adopted a policy meant to protect those rights.

But Councilmember Lisa Herbold’s proposed ordinance would go further by making the policy part of the Seattle Municipal Code and by giving people who believe their police-observation rights have been violated the ability to claim damages from the city.

Herbold’s ordinance cites recent fatal shootings by officers and of officers as proof that police-observation rights are important.

“The need for and value of public video and audio recording by the public is keenly evident from the recent recordings of the deaths of Philando Castile in Minnesota, Alton Sterling in Baton Rouge, Louisiana, and law enforcement officers in Dallas and Baton Rouge,” the ordinance says.

A memo to Councilmember M. Lorena González’s public-safety committee, set to discuss the ordinance Wednesday, spells out why Herbold believes the step is needed.

“Across the country, recordings of police activity by the public have increased the public’s ability to witness police behavior and hold police accountable,” the memo says.

“However, the act of recording, observing, or verbally criticizing police has also at times led to arrests and legal challenges to those arrests on First Amendment grounds.”

Several states, including California, Oregon and Colorado, have passed laws explicitly recognizing the rights of the public to observe and record the police, according to the memo.

The police department’s 2008 policy says, in part, “People not involved in an incident may be allowed to remain in proximity of any stop, detention or arrest, or any other incident occurring in public so long as their presence is lawful and their activities, including verbal comments, do not obstruct, hinder, delay or threaten the safety or compromise the outcome of legitimate police actions and/or rescue efforts.”

That policy says officers should assume a member of the public is watching and possibly recording them at all times, and it lays out some guidelines for interactions.

Sean Whitcomb, spokesman for the department, said respecting police-observation rights is “built into our department’s DNA” and “rooted in the Constitution.”

With regard to Herbold’s ordinance, Whitcomb said the department is generally supportive but will “defer to the legislative process to get it right.”

The ordinance differs from the department’s policy in that it would identify prohibited actions by officers — such as arresting or using force against lawful observers, rather than simply requiring officers to “recognize and obey” the rights of lawful observers.

The ordinance would give people the ability to submit a claim with the police department’s chief for the cost of any damaged property plus $500 for the value of a damaged or destroyed recording. It would also give people the ability to sue under city law for punitive damages of up to $10,000.

The council memo says Herbold’s ordinance likely would be the city’s first to codify an entire police-department policy.

The memo notes the ordinance could have labor implications, meaning officials might need to confer with the city’s police unions about it.