Connecticut Video Creates Controversy

A controversial video showing a confrontation between a state trooper and a Connecticut Post video camera operator has raised basic questions within the fire service about the inherent conflict between rights to privacy and freedom of the press.
On Dec. 5, 2010, a woman was killed in a single-vehicle crash on Interstate 95, near Fairfield, CT. The car in which she was riding struck a metal railing, spun into traffic and burst into flames. The video camera operator apparently arrived on scene soon thereafter and began taking video of the scene and fire department operations. A couple of minutes into the video, a Connecticut state trooper approaches the camera and orders the camera to cease operations, using foul and abusive language. The video appears to end immediately afterwards.
There is no indication that the video was taken from an unsafe location or within any established police perimeter. It apparently was taken in a public place – on a public roadway. There do not appear to be any shots of the victim, just a burning vehicle and fire department operations. However, many in the fire community have objected to the idea of someone taking videos of this tragedy as it was happening. “How would you feel if it was one of your family members?” is the sentiment often expressed.
The courts have widely recognized an individual’s right to privacy in private places, such as a home. Unfortunately, this tragedy occurred in a public place, where the right of privacy must be balanced against other rights. This case raises the question of how we balance potentially conflicting rights against one another. When is it appropriate for police (or fire) officials to restrict the right of public access to an area in order to protect an individual’s privacy?
It is within a government’s power to restrict public access when it has a legitimate reason to do so. Two obvious justifications for restricting access are to keep the public safe and to prevent the public from getting in the way of legitimate operations such as firefighting and rescue, or police investigations. Police or fire officials, acting as agents of the government, can set up a reasonable perimeter around an accident scene. Presumably, they also could take actions, such as the placement of apparatus, to block a scene from public view. They may also restrict the activities of the public whenever the public is permitted access to a restricted area.

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However, as I noted in my June 2010 Fire Law column, “Firefighter Photography: Know the Potential Legal Consequences of Sharing Images,” about issues related to firefighters taking on-scene photographs, it is a basic principle of law that anyone may take a photograph or video of anything when they are in a public area. Dave Levy, a Chicago, IL, lawyer who formerly was a volunteer firefighter at a busy station in Maryland, noted in a blog posting about this case, “an agent of the government (the trooper) does not have the constitutional power to tell a private citizen (the cameraman) who is standing on a public street what he can and cannot photograph. That is the heart of the First Amendment.” This is true even if the photos (or video) are in poor taste, or offensive to some, which appears to be the objection in this case.
A U.S. District Court in California recently ruled on a case similar to the one in Connecticut. In Chavez v. City of Oakland, an Oakland Tribune photographer came upon a serious personal-injury collision while driving on a freeway. Traffic was blocked, so Chavez left his car on the freeway and went to take pictures. After about 15 minutes, an Oakland police officer ordered him to leave the scene. Chavez asserted his right to cover the accident as a reporter, and after an exchange of words between the two, he was arrested and then released with a citation.
Chavez sued the police department, claiming that the police officer’s conduct in arresting him violated the First Amendment (along with other unrelated claims). The District Court ruled against Chavez because he did not have the right to be where he was. The judge wrote that “members of the general public are not allowed to exit their cars in the middle of the freeway to view an accident scene.” He did not say, however, say categorically that Chavez had no right to be there. If he had parked in a legitimate parking place, the decision might have been different. The decision seems to reaffirm the principle that access may be limited when safety (or operations) is affected.
Reporters are there to tell a story, whether it be good, bad or ugly. We may not like the story or the way it is slanted, but the First Amendment to the U.S. Constitution clearly protects the freedom of the press to do this. So, there always will need to be a balancing between the rights of the press and the right to individual privacy. The courts have been called on to make this judgment in other circumstances, and undoubtedly will address it in the context of emergency scenes in the future. One constitutional lawyer predicts that a case similar to those in Fairfield and Oakland soon will wind up before the U.S. Supreme Court.
While the courts and lawyers battle over where to draw the line between these two rights, we in the fire service are on the streets, daily confronting the dilemma of how to handle these potentially controversial scenes. Law enforcement won’t always be there to do it for us, so we need to be prepared with reasonable principles to guide our actions.
Current state laws provide one starting point for developing policies. Some states (such as California) make specific provisions for media access to disaster sites or for family access to a scene. Beyond that, though, fire departments should have policies with a rational basis that reflect the legitimate concerns of the press, as well as victims.
As a start, recognize that the press has legitimate needs, and certain rights, which should be important to the fire service. Levy’s commentary offers several examples where the presence of a press video camera protected a firefighter. Talk with the media and listen to their concerns before an incident so that each side has an understanding of the other’s needs.
Certainly, departments have the authority to establish a perimeter that limits public access to an incident. There are operational priorities that supersede rights of the public and the press to have access to an emergency scene. The most important is protecting the safety of operational personnel and civilians involved in the incident, as well as bystanders. The courts are likely to approve of any reasonable steps taken to improve the safety of those at the scene, but that is not a grant of complete power. A fire department will need to show that its actions were a reasonable means of protecting those involved.
At the scene of any emergency, it is critical to protect the integrity of ongoing operations and investigations. However, this does not give the fire service the unlimited right to hide from the press. Again, courts are likely to require a showing that the limits were necessary to protect the operation.
If it is necessary to deny the media’s request for access to photograph or video a scene, provide an explanation and seek to find an alternative way to meet their needs. If one location is unsafe, identify one that is suitable. Even with the stress of an uncontained fire or other emergency, confrontational attitudes aren’t constructive. Remember that the press always will have the last word.
It is inevitable in our business that we will eventually confront the clash of these two basic legal rights. There is no clear answer to the question of how we resolve the conflict, nor is there likely to be one in the future. Courts may pass judgment on cases and provide guidance, but we will be the ones who must be prepared to rationally accommodate both interests.