Are Cameras the New Guns?

[chris9641]

Came across an interesting article about how states want to pass specific laws making the recording of police officers on duty become a crime...

http://gizmodo.com/5553765/are-cameras-the-new-guns

In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

The legal justification for arresting the "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law - requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler's license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

In 2001, when Michael Hyde was arrested for criminally violating the state's electronic surveillance law - aka recording a police encounter - the Massachusetts Supreme Judicial Court upheld his conviction 4-2. In dissent, Chief Justice Margaret Marshall stated, "Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals…." (Note: In some states it is the audio alone that makes the recording illegal.)

The selection of "shooters" targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate.

Glik captured a police action on his cellphone to document what he considered to be excessive force. He was not only arrested, his phone was also seized.

On his website Drew wrote, "Myself and three other artists who documented my actions tried for two months to get the police to arrest me for selling art downtown so we could test the Chicago peddlers license law. The police hesitated for two months because they knew it would mean a federal court case. With this felony charge they are trying to avoid this test and ruin me financially and stain my credibility."

Hyde used his recording to file a harassment complaint against the police. After doing so, he was criminally charged.

In short, recordings that are flattering to the police - an officer kissing a baby or rescuing a dog - will almost certainly not result in prosecution even if they are done without all-party consent. The only people who seem prone to prosecution are those who embarrass or confront the police, or who somehow challenge the law. If true, then the prosecutions are a form of social control to discourage criticism of the police or simple dissent.

A recent arrest in Maryland is both typical and disturbing.

On March 5, 24-year-old Anthony John Graber III's motorcycle was pulled over for speeding. He is currently facing criminal charges for a video he recorded on his helmet-mounted camera during the traffic stop.

The case is disturbing because:

1) Graber was not arrested immediately. Ten days after the encounter, he posted some of he material to YouTube, and it embarrassed Trooper J. D. Uhler. The trooper, who was in plainclothes and an unmarked car, jumped out waving a gun and screaming. Only later did Uhler identify himself as a police officer. When the YouTube video was discovered the police got a warrant against Graber, searched his parents' house (where he presumably lives), seized equipment, and charged him with a violation of wiretapping law.

2) Baltimore criminal defense attorney Steven D. Silverman said he had never heard of the Maryland wiretap law being used in this manner. In other words, Maryland has joined the expanding trend of criminalizing the act of recording police abuse. Silverman surmises, "It's more [about] ‘contempt of cop' than the violation of the wiretapping law."

3) Police spokesman Gregory M. Shipley is defending the pursuit of charges against Graber, denying that it is "some capricious retribution" and citing as justification the particularly egregious nature of Graber's traffic offenses. Oddly, however, the offenses were not so egregious as to cause his arrest before the video appeared.

Almost without exception, police officials have staunchly supported the arresting officers. This argues strongly against the idea that some rogue officers are overreacting or that a few cops have something to hide. "Arrest those who record the police" appears to be official policy, and it's backed by the courts.

Carlos Miller at the Photography Is Not A Crime website offers an explanation: "For the second time in less than a month, a police officer was convicted from evidence obtained from a videotape. The first officer to be convicted was New York City Police Officer Patrick Pogan, who would never have stood trial had it not been for a video posted on Youtube showing him body slamming a bicyclist before charging him with assault on an officer. The second officer to be convicted was Ottawa Hills (Ohio) Police Officer Thomas White, who shot a motorcyclist in the back after a traffic stop, permanently paralyzing the 24-year-old man."

When the police act as though cameras were the equivalent of guns pointed at them, there is a sense in which they are correct. Cameras have become the most effective weapon that ordinary people have to protect against and to expose police abuse. And the police want it to stop.

Happily, even as the practice of arresting "shooters" expands, there are signs of effective backlash. At least one Pennsylvania jurisdiction has reaffirmed the right to video in public places. As part of a settlement with ACLU attorneys who represented an arrested "shooter," the police in Spring City and East Vincent Township adopted a written policy allowing the recording of on-duty policemen.

As journalist Radley Balko declares, "State legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials."

Personally I feel this allows cops to behave more irresponsibly. What do you guys think?

 

[tk149]

While the article only presents one side of the story, banning recording of cops is just plain effing wrong.

Who watches the Watchmen?

 

[waggy]

i hope that this does not pass. in fact they should make it that cops have more cameras on them during duty hours.

a citizin should NEVER be arrested for taping or recording a police officer in PUBLIC or in there own home.

of course the cops want it against the law.

 

[shira]

Of course, investigators do not hesitate to seek out and use videos taken in public places when it helps them to solve crimes, and prosecutors don't hesitate to use them in courts of law. How, then, can these same officials oppose the use of videos to prove misconduct by police?

 

[PrinceofWands]

I figure there are two options. People can record officers with cameras and use the evidence of wrong-doing later in court, or people can just flat out consider the police lethal adversaries and shoot first to defend themselves from potential abuse. I don't see that there's much room for middle ground. Given that I know which I'd rather accept as a law enforcement officer.

 

[StageLeft]

Obviously indefensible in the extreme. Public servant working in the public domain in a business historically prone to abuses, not filming it is total rubbish.

A good cop would WANT himself to be filmed. It makes defending himself again fallacious charges of misconduct much easier.

 

[Lemon law]

All this hysteria against Cameras may be based on the fear that a Camera will steal your soul.

Other than that a Camera is a totally non dangerous thing, all it does is capture photons that have already bouncing off the subject.

But if so, can we now makes a distinction about using on on Camera flash, which assaults everyone in the vicinity with zillions of additional photons? And gasp, it might offend me if it gives me red eye.

 

[senseamp]

I'd rather be charged with eavesdropping than be beaten or shot with impunity by a cop.

 

[werepossum]

I'd rather be charged with eavesdropping than be beaten or shot with impunity by a cop.

Why settle? Now you can have both!

 

[Cheesetogo]

I wonder if you can still submit the recording as evidence in court, or if they'd throw it out because it's "illegal." What a load of bullshit.

 

[glenn1]

I wonder if you can still submit the recording as evidence in court, or if they'd throw it out because it's "illegal." What a load of bullshit.

If I were selected for a jury that was hearing the case of someone charged with felony police recording, I'd full-on press for a "jury nullification" to find not guilty, after the trial I'd lead the effort to have the District Attorney recalled for prosecutorial abuse.

 

[fallout man]

"I see AK-47, permission to fire."

"Fire."

 

[NoWhereM]

I've been going on Youtube for quite a while now, several years, watching videos of people being arrested or harrassed for videotaping police officers. There may only be a few locals prosecuting now, but this is happening everywhere.

 

[fallout man]

Obviously indefensible in the extreme. Public servant working in the public domain in a business historically prone to abuses, not filming it is total rubbish.

A good cop would WANT himself to be filmed. It makes defending himself again fallacious charges of misconduct much easier.

This whole thing, in my understanding, stems out of fucked-up "wiretapping" laws (at least in Mass.). You can film, but not record audio. Of course, an asshole cop isn't going to inspect your device to check whether you've been "filming" or "recording audio" of whatever he/she thinks might be incriminating. Some devices don't allow you to disable audio. There have been a couple of local cases of this kind of thing happening, as I recall. I hope no one wants to film themselves walking down a sidewalk in scenic Boston with their family while a cop in sight--it's a crime. Of course, it's not brought up until there's cop-on-"criminal" violence being filmed...

A more narrow legal definition is in order, because I don't find it very fair for police to videotape the public (with sound) without consent, while the reciprocate action is a state crime. Public employee is public employee, especially one with a gun.

 

[JMapleton]

What the $%^$ are these politicians who are creating these laws?

This is beyond an outrage. Literally makes me want to ball up my fists.

 

[CLite]

So does this mean security cameras which do not seek the consent of an individual are illegal? In many cases stores have security cameras focused on the outside which would be public domain. We need a lawyer to visit this thread.

 

[nonlnear]

As journalist Radley Balko declares, "State legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials."

It is sad that there are journalists with such a narrow view. I do not need a law to tell me this is allowed. The day that the right to record a public official doing their public duty in a public place requires protection other than the first amendment is the day this little experiment called the US of A is over. We'll see how this case shakes out though. I suspect SCOTUS will have fun with it. This case shouldn't take long to get there if the charges aren't dismissed at the state level.

 

[BoberFett]

So does this mean security cameras which do not seek the consent of an individual are illegal? In many cases stores have security cameras focused on the outside which would be public domain. We need a lawyer to visit this thread.

No, there's a difference. When you as a citizen are filmed at every intersection or by police drones flying overhead it's OK. When pigs are caught on video beating a suspect, that's an abuse of their right to privacy. Poor pigs.

I laugh at the all the people who think we can continue increasing the size and scope of government while still keeping it under control.

 

[Hacp]

This is another example of government and union officials wagging their fingers. No justice for you!

 

[fallout man]

No, there's a difference. When you as a citizen are filmed at every intersection or by police drones flying overhead it's OK. When pigs are caught on video beating a suspect, that's an abuse of their right to privacy. Poor pigs.

I laugh at the all the people who think we can continue increasing the size and scope of government while still keeping it under control.

Why do you hate cops?

 

[Hacp]

Why do you hate cops?

Those same cops are getting 6 figure pensions and salaries. They're sucking the taxpayer dry. We need to get rid of unions and hire more efficient cops. And, NO MORE DOUGHNUTS! Taxpayers don't pay cops to eat doughnuts, they pay cops to look mean and scare away bad guys.

 

[Perknose]

This whole thing, in my understanding, stems out of fucked-up "wiretapping" laws (at least in Mass.). You can film, but not record audio.

BINGO! As a former PI, I can tell you the same archaic laws exist in Pa.and date back decades. They have LONG been outstripped by technology.

And, yeah, they all have their roots in wiretapping laws.

You are supposed to have the prior consent of both parties, as in a real wiretap of a phone convo. This has been extended by many courts to mean you have to get the prior consent of ALL parties if you record in a public place. Good luck on that, eh?

Remember, the mind-numbing archaic part of this is that they apply only to audio recordings, not film/video recordings (w/o that evil soundtrack!)

These laws were put in place before ANY digital video even existed, before small digital audio recording devices existed and even before analog cassette recorders existed, and they've long been selectively used by public officials to punk those trying to document their wrongdoing.

Worst part of it is, you can pull some serious jail time for it, too.

And sadly, all along and under your noses, people have.

 

[Perknose]

Those same cops are getting 6 figure pensions and salaries. They're sucking the taxpayer dry. We need to get rid of unions and hire more efficient cops. And, NO MORE DOUGHNUTS! Taxpayers don't pay cops to eat doughnuts, they pay cops to look mean and scare away bad guys.

Check your meter, Leroy.

 

[Zebo]

This is why founders felt it important to bear arms. Not hunting or defending your plasma.

 

[ebaycj]

If I were selected for a jury that was hearing the case of someone charged with felony police recording, I'd full-on press for a "jury nullification" to find not guilty, after the trial I'd lead the effort to have the District Attorney recalled for prosecutorial abuse.

Most of the time even mentioning jury nullification will result in an immediate mistrial.