Monday, June 21, 2010

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.


AndrewPrice said...

It is a facet of liberal states that they pass draconian laws and then say "they aren't draconian because we won't use them except when it's really necessary." And really necessary somehow turns into "any situation where it would look bad for liberals."

Being a civil libertarian, I believe strongly in open government and civilian oversight. So I don't like the idea at all of criminalizing videotaping of arrests -- I also don't see that as constitutional.

But in any event, I think it's a good for the police too. The vast majority of police throughout this country are decent, hard working, well trained men and women who go out of their way to be respectful even to the scum of the earth that they routinely run across. Having cameras with them would show this and would be effective evidence to protect them from phony lawsuits, false allegations of abuse, and would be proof that indeed the drunk, high and violent people they arrest were in fact drunk, high and violent.

Unknown said...

Andrew: The worst part is that the three statutes and the interpretation of current law in the other states prohibit videotaping the police under any circumstances. That not only prevents the kind of videotaping you and I are talking about, but gives the police and prosecutors free rein to use selected videotapes and videotapers as free publicity, even though the law says "no filming at all."

AndrewPrice said...

Lawhawk, That is the kind of problem -- inconsistency and selective enforcement -- that turns people against the law. Sadly, "the system" never seems to get that.

HamiltonsGhost said...

Lawhawk--Anything that goes on in public is the public's business, and any free citizen ought to be able to record it without fear of retribution.

Unknown said...

HamiltonsGhost: That's as clear a statement of what ought to be the law as I can imagine. Too bad judges aren't able to see that clearly. There isn't (and couldn't be) a law that would stop someone from watching what was going on in public, writing it all down and committing it to memory. Videos are merely more sophisticated ways of doing exactly that. And the video would be more accurate than the observer/writer and his memory. I think that's what the police and overzealous prosecutors fear most.

Unknown said...

Andrew: I meant to agree with you on the upside of videotaping, particularly if it can be made routine by the various police departments. For one thing, the public would start to catch onto the fact that most criminals do not go into custody willingly. Currently, videos have most often been used by the ACLU and other leftist, anti-police organizations to demonstrate "police brutality." Once the public is regularly shown how violent, or at least obstreperous most criminals are, they will come to understand that arresting a criminal is not as simple or violence-free as what happens in their own lives. "Roughing up" a defendant is almost always a simple and necessary response to a criminal who resists arrest. The average non-violent person has little experience to open his eyes to how violent most criminals are, but regular exposure to police (and citizen) videos would change that. Most law-abiding citizens would immediately comply with a police officer's lawful orders, and they make the mistake of assuming criminals do the same thing.

AndrewPrice said...

Lawhawk, I agree. I think the public would have a very different view of criminals if they spent any time visiting with them.

The other issue with the videotape would be stopping these fake lawsuits by criminals who falsely claim to have been attacked, etc.

Joel Farnham said...


I think you are forgetting the obvious problem of cops videotaping an arrest. This has been going on for years and no one complained until cops were videotaped doing stupid stuff.

Unknown said...

Andrew: I'm with you. I had some pretty scary characters in my time as a criminal defense attorney. Once they decided I really believed in attorney-client confidentiality, they would tell me horror stories about the things they'd done that they found very amusing and I found, well, horrifying. Most freely admitted that they had resisted arrest in some degree or another.

On the other hand, my very first case involved a police riot sweetly known as "The Lemon Drive Incident," which if it had been on videotape would have made complacent citizens suspicious of the police for years to come. Our office represented an unarmed paraplegic in a wheelchair whom the police charged with assault on a police officer.

Unknown said...

Joel: And that is obvious. If and when police videotapes become routine, I suspect the level of professionalism will go up. But I do have to agree with Andrew that the vast majority of police officers I know, including those who were the ones who arrested my clients, are as nonviolent as it is possible to be in what are often violent situations. Only in the case I mentioned in my reply to Andrew (immediately above) was I convinced that the police had used excessive force. I should also add that there's no such crime as contempt of criminal, either. So if an officer speaks harshly to a recalcitrant arrestee, well, tough.

Joel Farnham said...

Yes, I agree that cops are maligned, but doesn't the suppression of video constitute a violation of freedom of the press?

This will suppress the amatuer and give rise to "proper" video suitable for the masses to view.

Joel Farnham said...


By the way, what is to stop a politician holding a townhall and having cops there to felony arrest people for videotaping it? Sounds like this law is designed to control people. Stalinist at best.

Ponderosa said...

Umm...I have some pathetically stupid questions. Don't many of the patrol cars come equipped with video cameras that record traffic stops?

What about the traffic light cameras and cameras being installed in cities?

Citizens are freely monitored but the gov't is protectd. Isn't that a tad hyporcitical?

[sarcasm] Just like the Constitution intended! Per the 1st, 4th, 9th or 10th amendments "...unless it is a new technology."

StanH said...

Another example of government in self preservation mode.

Anonymous said...
This comment has been removed by the author.
Anonymous said...

sorry that belongs to another story... I hate the internet


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