Linda Meng
Office of City Attorney
City Hall
1221 SW 4th Avenue, Suite 430
Portland, OR 97204-1991

Notice of Injury and Tort Action Pursuant to ORS 30.275

RE: Illegal Seizure of Video Recording Device by Officers Reister and Ragona from
Mike Tabor on March 25, 2008 at SW 10th and Main.

Dear City Attorney:
Mike Tabor hereby gives notice that he has a tort claim against the City of Portland and Officers Nick Ragona, DPSST#21430 and Dane Reister, DPSST#31663. On March 25, 2008 Mr. Tabor witnessed the officers stopping two men on the sidewalk of SW 10th Avenue beside the art museum. Mr. Tabor began recording the encounter with his video camera. The two men were stopped, searched and released by the officers. Mr. Tabor remained at a reasonable distance from the officers during the stop. After the stop was over, Mr. Tabor was questioned by the officers and asked if he was recording audio. He replied that he was. Officer Reister then demanded that Mr. Tabor hand over the camera, which he did, and Officer Reister wrote Mr. Tabor a property receipt for the camera.

After the officers took his camera, Mr. Tabor began walking toward the police station at 1111 SW 2nd Avenue. The officers approached him again in their patrol car at or near SW 4th and Main streets. Mr. Tabor informed them that he was going to file a complaint. Officer Ragona then suggested that he meet them at the station. Mr. Tabor proceeded to the station and waited for about 20 minutes, after which the officers returned his camera to him and served him with a citation for “Obtaining Contents of Communication (Unlawful),� an alleged violation of ORS 165.540, a class A misdemeanor.

At that time, Officer Ragona informed Mr. Tabor that the men they had pursued were drug dealers. The officer also told Mr. Tabor that he had been standing too close and made the officer uncomfortable. This information is reflected in Officer Reister’s report. However, no officer gave any of the observers any indication that they were too close during the encounter.

Mr. Tabor appeared in court on April 22, 2008 as required by the citation. He was informed by a deputy district attorney that the district attorney’s office had decided not to file a complaint.

Mr. Tabor’s damages include the emotional distress and inconvenience from having his camera taken, retrieving it from the police station, believing he was being prosecuted for a crime, and appearing in court. Mr. Tabor suffered emotional distress from the violation of his First Amendment right to freedom of speech. Mr. Tabor frequently makes videos that he posts on his own website and on other public websites. Confiscating his camera and charging him with a crime was distressing for Mr. Tabor because he values his right to freedom of speech very highly.

Mr. Tabor is asking for only nominal compensation for his damages, in the amount of $100 plus reasonable attorney fees. Mr. Tabor is pursuing this claim because he wants to make sure that the City of Portland and the Portland Police Bureau establish a clear policy against seizing video cameras and/or prosecuting people under ORS 165.540 solely because they record public police activity including stops and arrests. He believes that this is a serious and all-too-common practice by some officers in the Portland Police Bureau.

Sanctioning people under ORS 165.540 for recording stops and arrests is a violation of the First Amendment because it prevents people from recording a matter of public concern and communicating that information to others. A person who witnesses a stop or arrest will be far less able to express what they have seen and heard to others if they are deprived of the option to make a video recording and show the events to others.

The defendant concedes that the Oregon Court of Appeals affirmed a conviction under ORS 165.540 for recording a conversation with police officers in State v. Bischell, 101 Or.App. 257, 261 (1989). There, Eugene police officers stopped the defendant while she was recording police radio transmissions. A tape recorder was in her backpack when she was stopped. She did not turn off the recorder or inform the officers that it was recording during the stop. The court held that there was evidence sufficient to prove that she knowingly recorded the conversation that transpired during the stop without the consent of the officers, in violation of the statute.

Bischell does not resolve the present case for three reasons. First, extending the statute to prohibit video recordings that include audio would have a vastly greater impact on freedom of expression. Video recordings of stops and arrests are one of the public’s most effective tools for monitoring and publicizing matters of public concern involving police. All video recording devices include audio recording devices. Even if an individual managed to turn off the audio recording device, police would have probable cause to believe that the audio was recording, which would give them authority to seize the camera and prevent further video recording. Second, prohibiting video recordings which include audio would serve a much smaller privacy interest than prohibiting audio recordings alone, since a video recorder has to be operated in public view. Using a hidden camera as a secret audio recording device would not qualify as making a video recording, and would be prohibited. Third, in Bischell the Court did not discuss the constitutionality of the statute. As applied to the recording of stops and arrests by police, Mr. Tabor argues that ORS 165.540 is unconstitutional because these audio and video recordings are protected by the First Amendment.

In 1991 Tom Potter, as chief of police, in cooperation with the city attorney’s office, apparently interpreted ORS 165.540 to permit the public to record police activities in a public place. Perhaps this was an effort to avoid application of the statute that would infringe on First Amendment protections. Please see the attached letter from Mr. Potter to the president of the Portland Chapter of the National Lawyers Guild, dated September 12, 1991, and the accompanying copy of a training bulletin from the city attorney. These indicate that arrests on a public street are events which are excepted from the application of the statute.

Mr. Tabor did not record an arrest. Therefore, the training bulletin does not explicitly address the facts presented. However, there is no reason to believe that a stop is less public or less an event than an arrest. Indeed, many arrests are preceded by a stop, and it would be pointless to allow members of the public to record only the arrest, and not the events which lead up to it.

The 1991 policy bulletin also includes only arrests “on the street or in a public place� within the scope of events which can be recorded. The event that Mr. Tabor recorded occurred in a public place. However, he asks that a full clarification of the city’s policy include an indication that ORS 165.540 does not prohibit recording stops and arrests on private property. If the reasoning of the 1991 policy bulletin is to be retained, stops and arrests on private property should be considered events. The person making a recording on private property would, of course, have to comply with all appropriate laws, including laws against trespassing.

Mr. Tabor respects the concern that police officers have for their safety and the safety of others. He does not allege that the First Amendment provides any protection for people who move too close to a police officer or in any other manner interfere with a stop or arrest. He asks only that the city policy be clarified so that people who make recordings of police activities including stops and arrests are not punished under ORS 165.540.

It appears that a policy bulletin is not an effective way to protect the people from sanction under ORS 165.540 over a long period of time. Accordingly, Mr. Tabor asks that the appropriate policy revision be included in the Portland Police Bureau Manual of Policy and Procedure.

Please contact me to discuss this matter. Mr. Tabor has no desire to engage in litigation with the City of Portland. However, he is very concerned that the city address the ongoing problem of Portland Police officers seizing cameras and charging people for recording the activity of the police officers. He will resort to filing a federal claim under 42 USC 1983 for violation of his First and Fourth Amendment rights, and a state law claim for conversion of property, if the city is unwilling to address this problem.

Sincerely,