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3. An exclusionary zone at a crime scene. Responders may establish an exclusion zone at a potential crime scene to prevent evidence from being disturbed until the investigation is complete. Regardless of what these zones are called or how they are characterized, reasonableness and good faith should be the watchwords when establishing them. These zones cannot be established just for photographers, but rather have to apply to all members of the public. Exclusion zones that are established out of spite, or even a well-intentioned desire to protect a victim’s privacy, may run afoul of the First Amendment.
To shield or not to shield
Another question that comes up from time to time is whether emergency responders can shield victims from cameras by placing sheets, tarps or even our bodies between the victim and the lens. While no doubt incidental shielding cannot be actionable as a First Amendment violation, intentional shielding may, according to some First Amendment scholars, cross the line.
In the absence of case law it is hard to predict how a given case will come out. My sense is where a patient’s dignity is exposed to the world, a court will be sympathetic and support our decision to shield the patient. Where such shielding is done simply to frustrate photographers without offering the patient any additional measure of privacy, it will result in an actionable First Amendment violation. In between is a vast gray area – a First Amendment no man’s land that responders should venture into with care.
It is understandable that firefighters and EMS personnel want to protect patients’ privacy and dignity. It is understandable that police need to maintain control at a scene. Unfortunately, good intentions in this regard may lead responders to act in ways that violate the Constitution.
While HIPAA and other medical confidentiality laws place a legal responsibility on fire and emergency medical personnel to protect the privacy of patients under their care, these protections do not extend to members of the public or the press. Our ability to limit the taking of pictures by the public is itself limited by the First Amendment.
While we can lawfully establish safety zones, work zones and crime-scene zones, these actions should not be undertaken as a pretext to stop people from taking pictures. Most professional photographers and many amateur photographers are well versed in their First Amendment rights. Balancing patient confidentiality against the First Amendment rights of photographers is a challenge for lawyers and judges to do in the sterile environment of a courtroom. It is veritable crap-shoot for emergency personnel to do in the heat of the moment in the field.
The best advice is to avoid a confrontation with a photographer whenever possible. Do your job. Ignore the cameras. If cameras become an unavoidable issue and you have a lawful basis to act, remember that photographers have a right to be wherever the public can go. Shielding may be a preferable option when a patient’s privacy is truly at risk.
Above all, do not resort to the use of force against anyone taking pictures at an emergency scene. Experience has shown there is a high likelihood that efforts to stop one photographer from taking pictures will itself be captured in photos depicting dedicated, caring, well-intentioned professionals as little more than mean-spirited bullies. If you need proof, just look at this video: http://statter911.com/2013/06/11/must-see-video-more-adventures-in-public-relations-is-this-the-captain-smart-of-the-north/, courtesy of STATter 911.