PAX Centurion - Fall 2017

www.bppa.org PAX CENTURION • Fall 2017 • Page 51 Legal Notes: Jennifer Rubin, Esq. Decker & Rubin, P.C., Counsel to Members of the Boston Police Patrolmen’s Association Openly filming police still OK according to the courts, and be careful about Fentanyl S ome of you may have heard that there’s a new decision out by the Eighth Circuit that has ruled that there is no First Amendment right to videotape police officers in public. This is not true. The case stems from a lawsuit filed by MatthewAkins, alleging that his constitutional rights were violated by numerous encounters he had with police officers in Columbia, Missouri. The only encounters that arguably had to do with filming police were (1) being “stopped from filming a citizen in the Police Department lobby”, (2) having links to the “Citizens for Justice Page [] removed from the Police Department’s Facebook page” 1 , and (3) being “excluded from a Police Department Media Training Day.” 2 The Eighth Circuit case that has been reported by various media outlets does not actually discuss anything substantive about filming police; its main focus is on the appellant’s motion for the judge to recuse herself, the denial of which the Eighth Circuit affirmed. The entire portion regarding the appellant’s filming in the opinion is the following: “Akins [appellant] also argues that the district court erred by granting the motions to dismiss and for summary judgment filed by the defendants and by denying his own motion for partial summary judgment. After careful de novo review, we conclude that the district court did not err in its thorough and well reasoned opinions. Accordingly, we affirm.” 3 So, off I go to read the district court opinion. It says three things on the encounters I mention above: (1) Atkins “has no constitutional right to videotape any public proceedings he wishes to” in addressing the filming in the lobby 4 , (2) “there is no constitutional right to unlimited posting” in addressing the removal of links from the Police Department’s Facebook page, and (3) “media does not enjoy a right of equal access or special First Amendment rights” in addressing the media training event. 5 It seems that some people have taken that first finding and run with it to make headlines stating that citizens have no right to record police in public. This is not what the decision says. The decision says there is no right to videotape “any public proceeding he wishes to” and cites to another Eighth Circuit case holding that the First Amendment does not give the public or the media the right to videotape an execution. The decision says nothing about filming police officers while they are performing their official duties in public such as on the street. What you should take away from this decision is that it changes nothing. Everybody here in Massachusetts still has the right to openly record a police officer, subject to reasonable restrictions (i.e., not interfere with police duties). I now turn to an issue that affects officer safety and seems to be getting more and more dangerous – fentanyl. Fentanyl is approximately forty (40) times more powerful than heroin. New Hampshire and Massachusetts rank first and second in per-capita deaths caused by fentanyl, which has surpassed heroin as the leading cause of fatal opioid overdoses in these states. 6 Why does this affect officer safety? Because this stuff is so powerful that contact with the substance can lead to illness, possibly even death. There have been reported incidents, including at least one Boston police officer that had to be hospitalized for evaluation and/or treatment after having contact with fentanyl. The Drug Enforcement Agency states that a dose the size of two grains of salt can be fatal. Now get this – there is now a stronger drug out there called carfentanil – which is one hundred (100) times more powerful than fentanyl and is designed to be an elephant tranquilizer. If the size of two grains of salt of fentanyl could be lethal, I don’t want to imagine what a fatal dose of carfentanil is. The lesson here – if you see something that could possibly be fentanyl or cafentanil, do not touch it, inform your supervisor, and let the ones who are trained and equipped to deal with these substances handle it. It is not worth you having an accidental ingestion of fentanyl or carfentanil, leading to sickness, and possible death. State police and other police departments have equipped their officers with protective gear such as hazmat suits and gas masks. We currently have masks and gloves – with some officers reporting that they may also have safety goggles. The Boston Police Department has not issued a formal policy or guide about what procedures should be followed when an officer comes across these substances. This is not sufficient. Please be safe out there and watch out for each other. Thank you for protecting us and the community, but remember to protect yourself too. As always, feel free to stop in and say hello and ask whatever is on your mind. 1 The appellant, MatthewAtkins is the founder for Citizens for Justice, which he formed in 2010 “to document and report on police conduct.”Atkins v. Knight, et al., No. 16-3555 at 2 (8th Cir., July 25, 2017). 2 Akins v. Knight, et al., No. 2:15-CV-04096-NKL at 34 (W.D.Mo., Aug. 2, 2016). 3 Akins v. Knight, et al., No. 16-3555 (8th Cir., July 25, 2017). 4 It should be noted that the Community ServiceAide who toldAkins he could not film in the lobby was wrong, and the Police Department actually toldAkins shortly afterwards that the Aide was wrong, and he was allowed to film in the lobby. 5 Akins v. Knight, et al., No. 2:15-CV-04096-NKL at 34-35 (W.D.Mo., Aug. 2, 2016). 6 N.E. fentanyl deaths ‘like no other epidemic’ by Brian MacQuarrie, Boston Globe (July 27, 2017).