The Public’s Right To Take Photos At Incident Scenes
Today’s burning question: Do firefighters and emergency medical personnel have the authority to stop people from taking photos at emergency scenes? Does it matter whether the filming is being done by the media or ordinary citizens? Perhaps as a result of the wide spread use of digital and cellphone cameras, these questions continue to resurface time and time again.
Last week, the United States 1st Circuit Court of Appeals reaffirmed that we have absolutely no right to interfere with photo taking by the media or citizens in public places, and that we could be held liable for violating the First Amendment Rights of the photographers.
The case involved Boston police officers who arrested an ordinary citizen, Simon Glik, for video recording their rough handling of a suspect. The officers ordered Glik to stop taking photos and when he refused, he was arrested for disturbing the peace and violating a state law that prohibits secretly recording a conversation. According to police, Glik’s video recording included audio, which they claim made it an illegal “clandestine” (secret) recording.
The criminal charges against Glik were eventually dropped, but he opted to file suit in Federal court against the officers for violation of his 1st Amendment Rights. The officers sought to have the case dismissed claiming they were entitled to qualified immunity. One of the central issues in the case was whether or not the officers violated a “clearly established constitutional right”.
In writing the opinion, Judge Kermit V. Lipez cited dozens of 1st Amendment cases that clearly explain that the media and ordinary citizens have an absolute right to film governmental officials doing their work in public places. He also cited cases holding that ordinary citizens have just as broad a right to gather news as the traditional media, and government cannot unreasonably restrict the exercise of that right.
Judge Lipez concluded: “though not unqualified, a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
As Judge Lipez noted, the right to take photos is not without limitation. It is subject to “reasonable time, place, and manner restrictions”. While the decision did not discuss the boundaries of those restrictions, they are important for us to recognize and understand. First of all, photographers must be in a publically accessible location. They have no right to enter into someone’s home, onto private property, or be granted access into restricted areas, such as the back of an ambulance. Secondly, the right does not allow photographers to interfere with operations. Third, photographers must respect reasonable hazard/safety exclusion zones that are set up.
From the responders’ perspective, what can we do if someone is filming something that we prefer they not film, such as a critically injured accident victim or a body? Nothing in the 1st Amendment case law prohibits emergency responders from physically standing in such a way as to block the line of vision of a would-be photographer, or even erecting barriers (with blankets or sheets) to shield a patient from glare of cameras. Such actions may be entirely appropriate for responders when matters of patient confidentiality are an issue.
However, at no time should we attempt to stop someone from filming, physically restrain them, or attempt to turnoff or take their camera equipment. The public has a “well established 1st Amendment Right” to take photos and video at incident scenes.
Here is a copy of the Glik decision. Glik_Boston_Video Incidentally, Judge Lipez is well known as a brilliant legal scholar and does an excellent job of explaining the state of the law in a way that even non-lawyers can understand.
I think the public has a right to photograph or video anything they would like as long as patient confidentiality isn’t a issue. It keeps us honest. What they don’t have a right to do is stand in the middle of my scene and interfer with operations or create safety problems. All MVA have a possible fuel leak until proven other wise. The 2008 ERG book requires a 150′ perimeter for safety reasons. This could also be applied to structures for flammable liquids stored inside or various other chemicals and public health concerns. I guess this only applies if you are having that big on an issue. My experence has been the public usualy keeps their distance while filming but the media likes to be in the dang yard of the incident. I always politely ask for them to move back and in trade will give them an interview with all the details shortly after the incident is controlled. I have only had one small issue and about a month of media black out for them was enough to make them come around. The newspaper is almost dead and youtube is the new media outlet. O well it could be worse……
Thanks Chief
There’s alot of folks out there who still have not gotten the word. Better to learn from the unfortunate experience of others than be on the receiving end of a civil rights suit in Federal Court!!!! This law is crystal clear.
Personally – I try to ignore the cameras and focus on my job. The pros have a job to do and generally know enough to say out of the way. Its more likely the amature photographers who push the boundaries. When they go for close ups of patients or try to film through the windows of a rescue (ambulance)- the appropriate solution is to screen the patient, not interfere with or give orders to the photographer.
Most of the fire/ems cases occur when well intentioned personnel try to give orders to photographers, or try to physicially stop them from filming by touching them or their cameras. That is the behavior that has to change.
“Patient confidentiality” isn’t an issue if what is happening takes place in the public view. The patient doesn’t have an “expectation of privacy” out of doors.
If you’re doing patient care, and you start opening clothing, etc., then you have a duty to protect your patient’s privacy, but that doesn’t including forcing people to turn off the camera. Other measures, like a “human wall” or a salvage cover, meet the requirements.
Skip
If I need to take a patient history, the information being exchanged is entitled to confidentiality. Same if I am examining a patient. It doesn’t matter where it occurs, the information is protected.
You put your finger on the problem: when these activities are conducted in public it is difficult to ensure that the conversation or exam remains private.
A big difference between patient confidentiality and the attorney-client priviledge is that the attorney-client priviledge can be lost if the information is exchanged in a public setting. Not so for patient confidentiality.
This case sounds like some bad police work compounded by some really bad police work.
Photographers/videographers can be a real tricky issue. Consider that some of the great fire service photos, such as those of the FDNY “War Years” by Steven Scher, contain many of images of patients and victims. Many of these were shot from only a few feet away from the action and the patients /victims.
There also are a number of iconic images of relatively recent history that show a patient/victim dead or dying. These include the photos of one year-old Baylee Almon in the arms of Oklahoma City Fire Captain Chris Fields after the Oklahoma City Bombing and the photos of the body of Father Mychal Judge being carried from the WTC ruins.
The key here is intrusiveness. So long as the photographer or videographer is outside of the emergency scene, there is nothing we as emergency responders can do about it.
I had a question come up recently related to this issue. One of our Paramedics asked if there was any rule on a patient recording and filming their treatment. He had a patient that was recording the Paramedic as he was taking vitals and assessing the patient and the patient recorded all this with his phone. Thanks.
Wow – what an awesome question. I am going to start a separate blog post on that one. Thank you for the question.
I had a problem like this, with a catch. I was working EMS for an event in a public park. We were set up in a first aid tent (solid sides but large doorways). A TV crew wanted to come inside and film us treating patients. I asked them to leave, they argued that it was a public place (public park), I responded that outdoors was a public place but the tent was “inside” and we would not allow them inside the tent. They backed down and filmed from outside. But who was right? The same would hold true for a haz-mat tent set up on a street I suppose.
Steve
We have a right to establish reasonable exclusion zones based on the safety of the public and our operational needs. Setting up a tent for patient treatment would be one of those legitimate exclusion zones because having civilians wandering through the tent could pose an operational problem for us doing our job.
HOWEVER – if we allow the public into an area, we cannot exclude the media, nor can we exclude a member of the public who wants to film.
Good article Chief Varone! I reposted on SConFire.com
Thanks for the information!
I understand the First Amendment, is there an age limit as to how young the person can be to be “on scene” to take pictures? In our fire dept. we had a, then, junior member who insisted on going on scene to take pictures. The Chief repeatedly told him not to come to scene, the junior got mad and quit so that he could go to scene by himself, not as a member of the department, to take pictures. is there anything that we can do in this situation?
Wendy
A fire department has a right (some may say an obligation) to restrict photo taking by on-duty personnel. On duty personnel do not have a First Amendment right to take photos. In the case of volunteers (I assume you are referring to a volunteer department) volunteers who respond to an incident are acting on behalf of the department – and can be restricted in their photo taking – because they in essence are “on-duty”. It sounds like your chief handled it properly.
I believe now is the time for public safety officials[police fire ems]& anyone that works emergency scenes in the publics eye to have special trainig on their rights,and the publics rights when it comes to photos and video.Public safety officials also need to be warned what can happen when they snap photos with their phones at the scene showing a patient,and then sharing that photo online.These can come back and bite you.
You are right Brian. It is an evolving issue. States like CT have already make it a crime for responders to take photos of victims, and other states are not far behind.
The thing guys don’t realize is that state public records laws commonly apply to evey photo they take on duty – placing them in jeopardy of having to disclose the photos to anyone who files the right request AND requiring them (under penalty of law) to maintain/preserve a copy for the statutory retention period.
Quite a quagmire!!!!