Watch Out! He's Got A Camera!

Some of my friends have sent me articles that were worth discussing on this post. The one I'll be handling today involves an issue that's near and dear to my heart. It's the balance between personal freedom under the First Amendment and the necessity of maintaining good order during a police investigation. As most of you know, I will usually come down on the side of law enforcement, but this just goes too far.

Video cameras do not always tell the full story. Without context, a routine police action can appear to be police brutality or at least an unnecessary use of force. I am specifically thinking of the Rodney King videos which were shown all over the television versus the entire silent tape. In its first report, CNN had a lip-reader tell the public what the police were saying to King. They first told him not to reach for his belt, and when he failed to follow that order, they tased him. Once he was down, they repeatedly begged him to stay down, and that they didn't want to hurt him. But still he got up, and advanced on the officers. Without those words, it does look like the police were beating a helpless suspect. And CNN quickly eliminated the lip-reader and played the raw, silent tape.

Still, that does not mean that the incident didn't occur, nor does it mean that videos (many with sound these days) should be prohibited at the scene of an arrest. It's up to the attorneys and the judge to determine which videos should be allowed into evidence, which should not, and how they should be used during the trial. Without context, the jury can't get a real idea of what was being filmed any more than the public could after seeing the post-lip reader videos on CNN.

Yet rather than treat an on-site citizen videotape of police activity as they would any other evidence, three states have already passed statutes making it illegal for any citizen to videotape any on-duty police officer under any circumstances. Illinois, Massachusetts and Maryland have passed specific statutes, while twelve total states have initiated prosecution against civilian video use either under the statute or under the more general statutes prohibiting videotaping without the consent of every person on the video. Needless to say, police are generally reluctant to grant such consent, and overzealous prosecutors have used that fact to pursue criminal actions against civilian bystanders who made the mistake of videotaping an arrest without first getting the permission of all the police officers involved.

Before you jump on this, it is common knowledge that nobody in a public place has a reasonable expectation of privacy, which would be the only constitutional rule that prevents such prosecutions. But as the two budding reporters who made the Acorn tapes can tell you, the rule is routinely ignored. The fine distinction the prosecutors have been drawing so far is that "TV news crews" are entitled to film because because it is obvious to everyone that filming is taking place. That is simply a ridiculous distinction, and grants TV news crews rights that are now being denied to the average citizen.

One would hope and expect that the courts would quickly recognize this anomaly and fix it before a trial could even be scheduled. But that is not the case. In a very recent Illinois case, a young man was arrested for violating the law for selling artwork on the public streets without a permit. That was a minor violation of the law, which the defendant was quick to acknowledge and admit to. Ordinarily he would have walked away with a slap on the wrist and/or a small fine. But the young man made the mistake of using his video camera to tape the arrest. The prosecutor gleefully dismissed the minor charges, but then charged the artist with illegal recording, a felony which could result in four to fifteen years in prison. The judge hearing the case denied the defendant's motion for dismissal, and has ordered the case to go to trial.

In a Maryland case from March of this year, another young man was pulled over for speeding on his motorcycle. For some reason yet unexplained, the young man had a video camera attached to his helmet, and turned it on as he was being pulled over. He was given a ticket, but the police appeared to be satisfied with that until a prosecutor got hold of the report, and ten days after the traffic stop, had the young man arrested for videotaping the stop. As it turns out, the tape was embarrassing to the state trooper who stopped him. It shows that the trooper was out of uniform in an unmarked car, jumped out of the car with gun drawn, and only identified himself as a police officer after the motorcyclist had demonstrated that he was not going to fight.

The motorcyclist's mistake was to put the video on YouTube, and one of the trooper's fellow officers saw it. Rather than use the statute for its intended purpose of preventing eavesdropping on the private conversations and affairs of others, particularly the police, it is being used against the party who was detained who was merely filming his own detention. But that didn't stop a prosecutor from deciding to call it "eavesdropping" and therefore what is called a "felony wobbler." That means the police and the prosecutor can ultimately decide if the case will be prosecuted as a serious misdemeanor or a felony (unlike the Illinois case). So far, the court has shown no inclination to dismiss the eavesdropping charges.

I'm sure we can all understand why the average citizen would not be allowed to film an interrogation (particularly with sound), or show up at the police station to film the ongoing prisoner processing. But prohibiting a citizen to film what is happening right in front of him, with no advance or inside knowledge, in open public, as the event unfolds, seems to me, at least, to be a violation of clear constitutional rights. Note that the cases all involve questionable police activity. And though the laws in some of the cases prohibit only filming of police officers in uniform while on duty, would the prosecution be going after a videotaper who was filming a beaming and grateful citizen who was just saved by a brave police officer?

I have no idea what kind of people these defendants are, or how serious their alleged illegal activities really were, but what they're being prosecuted for is what all criminal attorneys on both sides of the fence call "contempt of cop." The last time I looked, there was no law against that, nor would the Constitution allow one. Most of the police officers I've known over the years would be mildly irritated by being videotaped during the detention of a criminal suspect, but would express their exasperation by means other than trying to put the defendant in prison for a considerable number of years. Unless, of course, they were doing something before or during the arrest that they clearly shouldn't have been doing in the first place.

Special thanks to my friend Angel in Arizona for bringing the underlying story to my attention.