Camcorders, smart phones and live-streaming gizmos bob atop seas of demonstrators these days in Oregon, often capturing hostilities between police and demonstrators from various angles.

State law permits protesters to record police in public places. But courts have made few rulings on what officers can do with the recording devices they seize from people during arrests.

The rules of engagement became clearer in Eugene's U.S. District Court last week, when a civil jury determined that a city police sergeant violated an environmental activist's constitutional protections against illegal search and seizure during a 2009 leafletting campaign outside a bank.

The eight-person panel determined that Sgt. Bill Solesbee arrested environmentalist Josh Schlossberg without probable cause and used excessive force. But it was Solesbee's next act that sent legal minds across Oregon into hyperdrive: He seized the environmentalist's video camera without a warrant.

That's the electronic equivalent of police walking off with several file cabinets of private papers without benefit of a judge's signature, said Lauren Regan, Schlossberg's lawyer.

U.S. Magistrate Judge Thomas Coffin ruled in a pretrial hearing in the Eugene case that Solesbee violated Schlossberg's Fourth Amendment rights by searching the contents of his camera without a warrant. That ruling marked the first time that a federal court in Oregon weighed in on warrantless seizures of digital devices.

"Across the country right now, legal scholars and lawyers are just eating it up," Regan said of the ruling, "because it's actually a solid statement of the right to privacy in the age of technology."

Outdated laws

The American Civil Liberties Union has pressed Congress in recent years to give more protections to people from searches and seizures of their cell phones, laptops and other digital devices, said David Fidanque, the ACLU's executive director in Oregon. The last time Congress updated electronic privacy protections was 1986.

Oregon's law on intercepting communications was enacted in 1973, decades before the digital age. Fidanque said the statute gives little protection when, say, a teacher confiscates a student's cell phone and begins rifling through text messages and photos, although he thinks the Constitution does offer protections.

"The decision in the Eugene case strengthens the federal constitutional protections in a lot of other situations as well," he said. "Ideally we would like Congress to act -- and state legislatures to act -- to eliminate any confusion."

The Eugene case began on March 13, 2009, when Schlossberg and another activist set up a table outside an Umpqua Bank in downtown Eugene. There they began handing leaflets to passersby.

The leaflets reported that the bank's chairman of the board, Allyn Ford, owned Roseburg Forest Products and that the company sprayed toxic herbicides on its forestlands. The papers alleged that the herbicides drifted onto residential property miles away, contaminating the land and health of unwitting families.

Before setting up the leafletting station, Schlossberg had met with two lawyers, including Regan, director of the Civil Liberties Defense Center in Eugene. Regan advised him not to block the sidewalk or the bank's entry and, if questioned by police, to videotape the exchange.

Schlossberg was approached by one police officer, who warned him they had gotten complaints about the leafletting. But after a polite chat, she told him, "You're fine."

Then came Sgt. Solesbee, who told the environmentalist he had to move along. Schlossberg told the sergeant that his lawyer had advised him that he was engaged in lawful activity. Then he watched Solesbee walk into the bank. Schlossberg began packing up his things to leave.

That's when Solesbee walked back out and approached him. Schlossberg pulled out his camera and told the sergeant he was now shooting footage of their conversation.

Solesbee told Schlossberg he needed a permit to set up a table in front of the bank and accused him of blocking pedestrian traffic. Then he asked, "Are you taping me?"

As the two men argued over whether Schlossberg had notified him he was shooting video, the sergeant pointed at the camera and said, "Gimme that. That's evidence."

Schlossberg's lawyer said the sergeant then charged the activist, roughly grabbed for his camera and wrenched his arm behind his back. Schlossberg was thrown to the ground, where his head struck the pavement, and felt the sergeant's knee on his neck, Regan said.

Solesbee seized Schlossberg's camera and arrested him. He was jailed for five hours on charges of resisting arrest and intercepting communications. Prosecutors later dismissed the charges.

New police policy

Schlossberg complained about his treatment to the Eugene Police Department. His accusations were investigated by the department's internal affairs section and reviewed by an independent police auditor before reaching the desk of Chief Pete Kerns, who in late 2009 determined Solesbee hadn't violated department policy.

"I think all of his actions were within policy," Kerns said this week.

The chief said court rulings between the time of Schlossberg's arrest and today changed his department's policy. Now, he said, Eugene police are discouraged from arresting people for the same offense.

"The state of the law concerning that particular crime has changed," he said.

The Eugene jury last Monday awarded Schlossberg $4,083 for injuries suffered as a result of Solesbee's excessive force and $1,500 for pain and suffering. The city also will pay about $200,000 for Schlossberg's legal fees, Regan said.

Kerns said the city was still deciding whether to appeal the verdict.

The damages were small, Regan said, but the jury's determinations were big because they held Solesbee accountable for his actions and protected Schlossberg's right to tape the encounter. She remains baffled by the police department's position on the incident.

"Not only did a federal judge just spank them on the issue of this illegal search and seizure," she said, "Solesbee to this day still believes he's right."

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