DOJ signs consent decree, requiring policy overhaul in New Orleans Police Dept.

The United States Department of Justice (DOJ) and the New Orleans Police Department have reached an agreement, called a consent decree, which outlines the systemic deficiencies in the police department and requires specific policy reforms. This agreement comes after the DOJ investigated the police department, finding it was saturated with unconstitutional practices and uncovering evidence of police brutality, excessive force, discrimination, and a lack of accountability. (Read more in the New York Times. View the consent decree here.)

Decrees by the DOJ are great tools to get other police departments to adopt better policies to prevent police misconduct. No department wants a consent decree. Our firm is particularly interested in the provision on the constitutional right to observe and record police conduct. That portion is below.

E.       First Amendment Right to Observe and Record Officer Conduct

155.    NOPD shall ensure that, in accordance with their rights secured or protected by the Constitution and laws of the United States, onlookers or bystanders may witness, observe, record, and/or comment on officer conduct, including stops, detentions, searches, arrests, or uses of force.  Officers shall respect the right of civilians to observe, record, and/or verbally comment on or complain about the performance of police duties occurring in public, and NOPD shall ensure that officers understand that exercising this right serves important public purposes.

156.    Individuals observing stops, detentions, arrests, and other incidents shall be permitted to remain in the proximity of the incident unless one of the conditions in paragraph 160 is met.

157.    Individuals shall be permitted to record police officer enforcement activities by camera, video recorder, cell phone recorder, or other means, unless one of the conditions in paragraph 160 is met.

158.    Officers shall not threaten, intimidate, or otherwise discourage an individual from remaining in the proximity of or recording police officer enforcement activities.

159.    Officers shall not detain, prolong the detention of, or arrest an individual for remaining in the proximity of, recording, or verbally commenting on officer conduct directed at the individual or a third party, unless one of the conditions in paragraph 160 is met.

160.    Officers shall take appropriate law enforcement action against a bystander only if a bystander's presence would jeopardize the safety of the officer, the suspect, others in the vicinity or crime scene integrity; the bystander violates the law; or the bystander incites others to violate the law.

161.     Officers shall not seize or otherwise coerce production of recorded sounds or images without obtaining a warrant, or order an individual to destroy such recordings.  Where an officer has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a felony, the officer may secure such evidence for no longer than required to obtain a legal subpoena, search warrant, or other valid order.