A free speech chilling memo by the general counsel for a Florida police department advises cops that they can choose when to arrest citizens who record them in public, if those officers happen to be working undercover.
Lakeland PD‘s memo acknowledges the public’s right to record police in public, while performing their official duties in passing on page one, and then crafts a tortured, Rube Goldberg’s police manual with unclear powers to undercover police.
Lakeland Police Department attorney Roger Mallory wrote the memo, generously delegating to undercover officers a new right – to decide when to blow their cover and violate a photographer’s free speech rights – in four pages of cliche-ridden, legalese prose.
The newly vested Lakeland PD secret police could then appear anywhere, and begin arresting the innocent using his illegal excuses for censorship. Police officers could easily direct undercover units to any scene where they wish to criminalize free speech of those citizens who seek to record their public officials performing their official duties.
This is the very same attorney who was previously demoted from his position at the Lakeland police department after losing a public records lawsuit which cost his city’s taxpayers $160,000, after which plaintiff Joel Chandler called Mallory’s legal strategy, “doubling down on stupid.”
In fact, it’s unclear why Mallory is still working for Lakeland PD as a lawyer!
Lakeland PD’s previous chief Lisa Womack announced that Mallory, who “previously was responsible for all legal issues within the LPD, including the release of public records, has been reassigned to other law enforcement-related duties within the LPD.”
But Roger Mallory is still Lakeland PD’s general counsel today according to public records and presumably was as well in 2014 when the infamous document below – issued under the banner of then interim, now permanent Chief Larry Giddens (pictured inset) – instructed officers how to make unlawful arrests when they wish to censor first amendment protected free speech.
Shamefully, Mallory missed the 2012 memo from the US Department of Justice in the famous case of Sharp vs. Baltimore, and clearly has a poor grasp of the Constitution he swore to defend first as a lawyer, then again as a police officer.
The nearby Tampa Police Department has a far more sensible photography policy comporting with federal law, which also turned up within the same public records request.
Mallory’s horrific memo wrongly instructs officers that the, “investigative need to remain secret” is paramount.
Video Recording (including still photographs)
The law is that absent a clear case of the subject unlawfully interfering with your execution of your legal duty (i.e., the video recording/photography constitutes the crime of ”Resisting With/Without Violence”; hereafter “Resisting”), and if you are located in a place lawfully accessible to the general public, the subject may lawfully do so. A couple of examples of those circumstances in which video-recording/photographing of you might constitute the crime of:
Does it concisely advise officers that most photography and video recording is a First Amendment protected right, unless it physically interferes with an officer carrying out their duties?
But it got worse, much worse.
Resisting might be:
I. You are conducting surveillance from a location under circumstances in which we have a clear and reasonable intention and investigative need to remain secret and the video recording/photographing can be reasonably expected to include your chosen location such that a viewer of that video/photograph could identify that location, and
You are acting in an undercover capacity, you are actively conducting law enforcement business (not, e.g., on lunch break, etc.), i.e., you are actually performing some legal duty (e.g., conducting an investigation), and the video-recording/photographing would somehow reveal your identity as a police officer, thereby endangering you and/or denying you the opportunity to continue to perform your legal duty.
Midway though page three there’s a run on sentence about the actual legal standard a court might use to convict a citizen of resisting or obstructing justice while recording, which is the rare instance that a photographer physically impedes an officer by getting too close to the action.
“I believe that Lakeland Police Department General Counsel, Roger Mallory does a great disservice to his chief and his department by suggesting ways in which officers may violate the clearly established constitutional rights of citizens and journalists to photograph and record police officers performing their official duties in a public place,” said Mickey Oterreicher, General Counsel to the National Press Photographers Association (NPPA).
“One only need to look at the opinions in the Eleventh Circuit [Federal Court] and the Statements of Interest by the U.S. Department of Justice in these cases as well as some very well written policies by law enforcement agencies throughout this country to realize that some of the suggestions made by Mr. Mallory violate not only the spirit but also the letter of the law when it comes to these First Amendment rights.”
As Osterreicher alluded to, the landmark case of Smith v. Cumming was decided in the year 2000 and definitively speaks to citizens rights to record the police.
First Amendment lawyer Justin Wales, in Miami’s office of Carlton Fields Jorden Burt whose firm represents government entities throughout Florida concurred.
The public has First Amendment right to record officers on public streets, as you know there are many instances where that’s not respected. While recording an officer, you can’t interfere with their duties, or inhibit their movements.
What they’re advocating in the Lakeland Police Departments memo seems to go far, without a lot of clear guidelines.
In saying just by the act of recording an undercover police officer, that act constitutes a per se interference with an official act, creates a distinction between recording undercover and marked police officers that may be unreasonable. It seems to imply that any act of recording an undercover officer on a public street is automatically an unlawful act or interference with their duties.
“Are they talking about a stakeout? Are they talking about Donnie Brasco?” asked Wales.
Florida’s Vague Wiretapping Statute
Buried at the bottom of the densely worded tome, Lakeland PD’s attorney plaintively admitted way down on page 4 that, “Members of the general public seem to possess devices that audio, video, and audio/video-record in greater and greater numbers such that their presence in our law enforcement environment should be expected.”
Then Mallory moved into yet another tortured idea, advising his Lakeland police officers to illegally seize recording equipment under Florida’s infamous and outdated wiretapping statute, stating:
If, however, you had an objectively reasonable basis upon which, it was your expectation, your oral communications/voice were/was not being recorded, and the person recording intended to record, the subject commits the felony crime of wiretapping.
Omitted is the simple fact that a police officer or any public official performing their official duties should have little, if any expectation of privacy in “oral communications.”
Mallory’s horribly written document proceeds to misinform officers that a citizen should provide an officer with a written statement, saying that the officer will be recorded as the basis for lawfully audio-recording an officer.
Sounds like a perfect excuse for any officer to exercise prior restraint, if they feel uncomfortable about being recorded.
Florida’s wiretap statute defines “oral communications” as those “uttered by a person exhibiting an expectation that such communication is not subject to interception,” and while poorly written, does apply generally to people in public spaces – cops or citizens.
Merely expressing the desire of private communications shouldn’t be enough to raise an expectation of privacy either, a fact noted in Mallory’s memo. In fact, if you think about it, it would be very hard under those terms for an officer to know that they’re being surreptitiously recorded.
The ‘backup’ statute Mallory invoked to justify the illegal seizure of citizens recording devices isn’t an absolute one, because a defense of “good faith” is enough to exonerate citizens accused of wiretapping in Florida from both civil and criminal liability.
The Lakeland PD general counsel concluded his secret police handbook with a key fact cited as, “well hidden.”
Sure enough, the lawyer did hide it conveniently at the very bottom of the document.
When we asked Justin Wales about a “complete defense” to Florida wiretapping charges that citizens might raise, he said that, “The defense of “good faith” is a burden on the person being arrested under Florida’s wiretapping statute FS 934 in a civil, criminal or administrative action.”
Roger Mallory’s secret police censorship training manual for Lakeland PD is a prime example of flawed police policy, which once written and disseminated, can then result in civil rights violations and ruined lives.
And tax payer funded settlements.
Giving police officers an excuse to criminalize the Constitutionally protected right of free speech, which includes photography, shouldn’t be the job of any public official.
But some think it’s their only job.
Mallory instructing Lakeland’s children in the “inner workings of the criminal court system.”