Do Police have the Right to Confiscate your Camera?

Oscar Grant's Case
Oscar Grant's Case

Oscar Grant's Case according to Family members, the Grant family attorney and eyewitness Karina Vargas

Carlos Miller

Police would need a subpoena in order to confiscate a citizen's camera.

Seconds after BART police officer Johannes Mehserle shot and killed Oscar Grant, police immediately began confiscating cell phones containing videos that have yet to see the light of day.

In fact, the only videos that have been seen by the public were filmed by people who managed to leave the scene before police confronted them.

In one instance, police chased after Karina Vargas after she stepped on the train, banging on the window after the doors closed and demanding her to turn over the camera. The train sped away with Vargas still holding her camera.

Her video, which did not show the actual shooting but captured the turmoil before and after, was one of the first to pop up on the internet. And soon after more videos popped up showing the actual shooting.

In the most vivid video, the train doors can be seen closing seconds after the shooting as the train speeds away.

But the truth is, police had no legal right to confiscate a single camera.

“Cops may be entitled to ask for people’s names and addresses and may even go as far as subpoenaing the video tape, but as far as confiscating the camera on the spot, no,” said Marc Randazza, A First Amendment attorney based out of Florida and a Photography is Not a Crime reader.

Bert P. Krages II, the Oregon attorney who drafted the widely distributed The Photographer’s Rights guide, responded to my inquiry with the following e-mail message:

“In general, police cannot confiscate cameras or media without some sort of court order. One exception is when a camera is actually being used in the commission of crime (e.g., child pornography, counterfeiting, upskirting).”

It didn’t appear that the BART videos were being used in a commission of a crime, so what could people have done to prevent police from illegally confiscating their cameras?

“Probably not a whole lot,” said Randazza. “You don’t want to get into a situation where you are refusing to comply with law enforcement, especially when that law enforcement officer just shot and killed somebody. No camera is worth losing your life over.”

But what can you do if you’re as stubborn as me and have a tendency to refuse unlawful orders?

“Make sure you have an attorney that specializes in First Amendment law,” he said during Monday’s phone interview. “Make sure you have his cell phone and home number. Sometimes calling an attorney on the spot can be helpful.”

Needless to say, I now have Randazza’s cell phone number programed into my cell phone.

Comments (1)
No. 1-1

That's not quite true. Police need a warrant, not a subpoena, to confiscate the camera itself. They can get a subpoena to compel a copy be made of the film or memory card, however.

Further, journalistic work product cannot ever be seized by warrant, unless the police are alleging that the act of journalism was illegal and a judge concurs -- though it's not unusual for police to "forget" to inform the judge that what they want to seize is journalism. If they do that however, it invalidates the warrant. Journalists can still be subpoenaed, however.

Citizen Journalism