Film Tha Police
What do you do with your outrage? Do you swallow it? Or does it swallow you? Mine got stuck in my throat this summer before the summer even began. If you haven’t been paying attention, it’s not been a good time to be #LivingWhileBlack.
This hashtag describes situations in which the presence of Black people has been reported to the police as crimes in progress. Examples of such normal everyday behavior versus their suspected criminality because Black people include:
two men waiting in Starbucks (trespassers),
Baptist pastors stuck on the highway (gun smugglers and/or drug dealers),
Wisconsin teen in backseat of his grandmother’s car (carjacker),
building residents using residential swimming pools (trespassers and/or sock wearers),
former Obama staffer moving into his apartment (burglar),
Yale student napping in her dorm (lazy burglar),
family barbecuing in a park (unwanted Black family barbecuing in a park),
politician sitting with family in first class (trespassers, again), and
customers at KFC in Berlin (paying trespassers).
The KFC incident stuck with me the most because after a member of the group uploaded a video of her encounter with police, German officers filed charges against her and made her delete it.
My outrage turned into a question.
CAN WE FILM THE POLICE?
This is simple in the UK and US, but complicated in Germany.
London’s Metropolitan Police have clarified that police cannot stop “filming or photographing incidents or police personnel.” In the US, federal courts have held the First Amendment “protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.”
Before pulling out your phone in Germany, Dan Biss, a queer Black Stuttgart-based artist and member of the European Network of People of African Descent, cautions:
“Anybody whose face is recorded has to give you permission to upload it. In the US you can record the police, but in Germany the law protects them. It is much more difficult to hold them accountable.”
Under German law, the right to one’s image (das Recht am eigenen Bild) carries civil and criminal penalties for anyone who publishes another’s picture without their permission. Although this only applies to publication or distribution, it has been confused for the general right not to be photographed. In fact, Section 201a of the German Criminal Code (StGB) only criminalizes the taking of pictures that violate intimate privacy when the person is in a non-public space or somehow helpless.
IN OTHER WORDS, IF YOU VIOLATE SOMEONE’S PRIVACY IN THEIR HOME OR WHILE THEY ARE PASSED OUT IN THEIR OWN VOMIT, THE POLICE REALLY CAN THROW YOU IN JAIL FOR UP TO TWO YEARS BECAUSE TAKING THOSE KINDS OF PICTURES IS ACTUALLY PUNISHABLE BY LAW.
No one else has the right not to be photographed, but Section 22 of the Art Copyright Act (KunstUrhG) requires consent to publish such pictures. This right extends to on-duty police officers. Press Officer Thilo Cablitz of the Berlin Police told DADDY:
“It is generally allowed to film the police in public as long as it does not disrupt or endanger police operations. Publication without permission of the person depicted is a criminal offense.”
Unfortunately, this guidance does not help would-be photographers who want to keep their phones. Cablitz continued:
“If there are concrete reasons to believe that pictures will be published, police intervention is possible under Sections 1.3 and 38 of the General Security and Order Law in Berlin (ASOG) and Sections 22 and 33 of the Art Copyright Act. To protect public safety, police officers may therefore take necessary action to prevent imminent crimes.”
TRANSLATION: YES, YOU CAN LEGALLY FILM THE POLICE, BUT THEY CAN EQUALLY LEGALLY STOP YOU IF THEY THINK YOU *MIGHT* BREAK THE LAW LATER BY PUBLISHING PICTURES WITHOUT CONSENT.
Exceptions allowing the publication of pictures without consent technically exist under Section 23 of the Art Copyright Act, but you would need a solid command of German language and German law to shout “das sind Bildnisse aus dem Bereiche der Zeitgeschichte!” at someone who both understood and accepted your objective interpretation of an extraordinary situation. That someone will not be the officer you are trying to film. They will scream “Delete it!” without taking the time to explain the nuances of German privacy rights or how to pixelate images.
WHAT CAN WE DO INSTEAD?
“You can still film, but you can’t publish,” Dan recommends.
In a limited decision, the Federal Constitutional Court held in 2015 that the police cannot automatically assume photographers will illegally publish pictures. There must be “concrete reasons” (konkrete Anhaltspunkte) to believe pictures will be published without consent.
Press Officer Cablitz quoted these exact words in response to DADDY’s questions. Using the same language may help you exercise your rights safely, but there is no guarantee that officers will know the law. Dresden police recently detained a ZDF film crew at the request of a Pegida demonstrator even though it is legal to film protests. Asked on what grounds he was detaining them, the arresting officer could not answer reporter Arndt Ginzel’s direct questions.
After feeling “violated and embarrassed,” Kelon Pierre called on KFC to release their own footage of the incident. “The video has evidence and with the CCTV you would see the beginning until the end. When [people] see that they’ll know that we were minding our own business being normal.”
In an official statement, KFC confirmed that internal footage exists but would not be published for data privacy reasons, and claimed the manager acted “in the interests of other guests.”
The Berlin Police contend they treated Pierre and his friends “neutrally and without prejudice.”
The following video casts doubt on both these narratives.
We fixed it to comply with German law and put it back online.
Film tha police.
- Never put yourself in danger or disrupt police operations.
- Calmly state that you will not publish any pictures in violation of the law.
- Keep pictures and videos to challenge the official police account later.