New photo policy after settlement

From the Times Record, Fort Smith we get a story by Jeff Arnold, the summary of which I post below, the full story is here

 On Thursday, February 7, 2013 Braden Purcell was walking along Park Avenue in Fort Smith when he began filming an incident involving the 12th Judicial District Drug Task Force who were executing a search warrant on a home in the 4100 block, when Cpl. Brian Fuller of the Sebastian County Sheriff's Office confronted Mr. Purcell for video taping the activities.

Those facts are undisputed, but what happened afterwards is dramatically different depending upon whose account you are listening to.  Both men claim that the other was immediately aggressive and both claim that the other man tried to hit him.  When the confrontation was over Mr Purcell was laying on ground with Officer Fuller placing him in handcuffs, under arrest for obstructing of governmental operations and resisting arrest. 

In the initial incident report Fuller claimed that Mr Purcell walked by the residence twice taking videos with an iPhone.  " It appeared he was targeting undercover officers and prosecutors on the scene, " he wrote.  " Not knowing if the man was associated with the residence and possibly gathering intelligence for the organization being searched.  I requested identification from the man. " Fuller wrote that Purcell began yelling, " I know my rights " he refused to stop, refused to produce identification, refused to submit to arrest, actively resisted arrest, and had to be physically placed in handcuffs. 

In a subsequent, report Fuller wrote that he had observed a man who looked, " very similar " to Purcell leaving the residence before the warrant was served, which " raised my suspicion " about Purcell. 

Following his arrest Mr Purcell bonded out of jail and appeared before the Fort Smith District Court twice before he as told that Sebastian County Chief Deputy Prosecutor Linda Ward was declining to file criminal charges.  Purcell then went to the Sheriff's Office to retrieve his iPhone, where Fuller told him was it had been returned to him.  After returning several more times to the Sheriff's Office, Fuller told Purcell he had lost it.  The phone was never documented as being among the belongings of Purcell's nor was it logged in as evidence in the charge he was using it to target police and prosecutors

Eventually the Sheriff's Office offered to reimburse him for the amount he paid for the phone when he got it with a 2 year contract, despite the provided evidence that Purcell wasn't eligible for the contract price and that it would him nearly $1,000 to replace the phone and the case.  

At this point Mr Purcell contacted attorney  Bruce Mulkey in Rogers, Arkansas and as a lawsuit against Fuller, Sheriff Bill Hollenbeck, and the County was being prepared, the Sheriff's Office offered to pay the replacement cost.  Mr Purcell had had enough by this point and told them it was too late and a trial was scheduled to begin July 29.

Mr Mulkey is reported to have told his client that 90% of lawsuits disposed of through settlements have attached confidentiality requirements, but his client, Purcell wouldn't agree to a settlement wherein he couldn't talk about the circumstances.  Two weeks before the trial was to start a settlement was reached for $40,000 plus attorney's fees, paid from the Arkansas Association of Counties risk management fund.

Following the settlement the Sebastian County Sheriff's Office has adopted a written policy for how it's deputies are to respond to people recording/videoing the actions of deputies  .The four-page policy reminds deputies that citizens have the First Amendment right to film or take video of law enforcement activity in a lawful manner, and they are prohibited from: attempting to intimidate or coerce someone into ceasing, obstructing their ability to do so or even discouraging them from engaging in recording law enforcement.

The policy also gives guidance on when obstruction, hindering or interference arrests could be appropriate:

• When a person through their actions creates a safety risk to an officer, suspect or the public.

• When the person enters a clearly marked crime scene without authorization.

• When the person enters an area clearly marked because of an ongoing emergency and closed to the public.

• When the person is on private property without the authorization of the property owner, after determining the wishes of the property owner.

A spokesman for the Arkansas State Police, Bill Sadler, in an emailed response, said the state police department does not have a written policy on the issue.

“The Arkansas State Police does not prohibit individuals from using any type of camera to record a state trooper during the course of the trooper’s duties which may occur in the public domain, unless the presence of the person operating the camera impedes the duties of the trooper or exigent life-threatening circumstances are in play that may jeopardize a safe resolution of the incident,” Sadler said.

Sadler declined to provide an example of what behavior might meet that criteria.

Most law enforcement agencies in the state do not have a policy regarding the public recording the actions of their officers in public, and incidents are handled on a case by case basis. The international Association of Chiefs of Police is currently working on a national training program funded by the US Department of Justice and has a model policy available for law enforcement agencies.