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."
So does that apply to the dash cam if I dont consent to it? How can the footage be used as evidence? Can the cop or municipality officials who authorized the dash cams be held criminally liable?
Fascists are making a lot of headway early this century. I wonder if anybody will slap these jackbooted thugs down before they get a stranglehold.
Nibbles become bites...
“Police do not have an expectation of privacy in their public encounters with the citizenry. In fact, they should have instead an expectation of public accountability for the performance of that work. When a free people give police the authority to enforce our laws and to have the leeway to commit acts of violence in doing so, that is a trust that requires oversight and accountability. The vast majority of police officers enforce the law in a lawful, professional manner, but some abuse their positions of trust. Removing oversight makes it more difficult for the professionals to do their job and easier for the small number of abusers to bully others into following their example.”
porksboy wrote:
So does that apply to the dash cam if I dont consent to it? How can the footage be used as evidence? Can the cop or municipality officials who authorized the dash cams be held criminally liable?
SHUT UP. I MAKE THE RULES HERE.
Fear tyranny over terror every time. One is just using the other to get what it wants.
Will
HalfDork
6/4/10 9:42 p.m.
I seriously doubt these laws would stand up to a SCOTUS challenge.
Anyone public official who voted for such a law needs to be shown the door to a new profession.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
from http://www.ushistory.org/Declaration/document/
All that is necessary for the triumph of evil is for good men to do nothing.
My representative will be contacted.
porksboy wrote:
So does that apply to the dash cam if I dont consent to it? How can the footage be used as evidence? Can the cop or municipality officials who authorized the dash cams be held criminally liable?
This is exactly what I was thinking of whilst reading the article. It almost makes me want to mount a camera in my car and do something stupid to challenge this, but I do not have the resources to properly pursue this either. I to doubt this would hold up to SCOTUS scrutiny. I knew there were reasons I didn't much care for Illinois.
griffin729 wrote:
porksboy wrote:
So does that apply to the dash cam if I dont consent to it? How can the footage be used as evidence? Can the cop or municipality officials who authorized the dash cams be held criminally liable?
This is exactly what I was thinking of whilst reading the article. It almost makes me want to mount a camera in my car and do something stupid to challenge this, but I do not have the resources to properly pursue this either. I to doubt this would hold up to SCOTUS scrutiny. I knew there were reasons I didn't much care for Illinois.
if you are a minority of some kind- black, transgendered, Asian, gay, middle eastern, female, Hispanic, whatever- then you might be able to find some activist group to help out with your defense fund and publicity.
if not, then i wouldn't try it.
I can't wait for Ohio to find out about this.
Imagine the possibilities... I can get pulled over doing 65-mph in a 65-mph zone. Cop's having a slow night, so he writes me up for doing 80.
In court, the officer only has to provide his "trained judgement of speed" as admissible and credible evidence.
But if I have a camera mounted in my car, and can provide recorded evidence that my speedometer never exceeded the posted limit, I could be considered a felon???
In reply to novaderrik:
Unfortunately no white male here.
There are some things that the ACLU was tailor made for...
This is one of them.
I'm the mommy !! that's why law .The mighty blue wall just got a stainlees steel coating on it. That 24 year old man was shot in the back!? If that was my boy it would be an eye for an eye and would be on youtube .
ignorant wrote:
There are some things that the ACLU was tailor made for...
This is one of them.
If only they truly gave a crap about ALL U.S. Citizens' liberty; not just the folks who mirror their social and political views.
actually the ACLU has found themselves in some interesting situations... several yrs ago here in NC the hwy dept started a program of "adopt a hwy" .... basically to keep a section cleaned up... you/your group would get a sign posted at each end of your section... the KKK volunteered for a section of rd (eastern nc if I remember correctly) they were turned down and the ACLU were "forced" (their charter I guess) to step in and sue the state to allow the KKK their bit of rd... I'm sure they pursued the case with their usual vigor .. 
In reply to grafmiata:
Not if you turn the camera off before the cop shows up. That would actually help you win the case, cause the camera would show your top speed up until the stop was made.
poopshovel wrote:
ignorant wrote:
There are some things that the ACLU was tailor made for...
This is one of them.
If only they truly gave a crap about ALL U.S. Citizens' liberty; not just the folks who mirror their social and political views.
Yeah, the ACLU has never gone to bat for those it disagrees with/those who hate them/those they hate/etc...
keethrax wrote:
poopshovel wrote:
ignorant wrote:
There are some things that the ACLU was tailor made for...
This is one of them.
If only they truly gave a crap about ALL U.S. Citizens' liberty; not just the folks who mirror their social and political views.
Yeah, the ACLU has never gone to bat for those it disagrees with/those who hate them/those they hate/etc...
Yeah, that's EXACTLY what I said...{rolleyes}
captainzib wrote:
In reply to grafmiata:
Not if you turn the camera off before the cop shows up. That would actually help you win the case, cause the camera would show your top speed up until the stop was made.
Yeah, but I'd keep it recording, then show up in court with two versions of the footage. The full-length, and the edited version where it stops as soon as I pulled over.
If I were to become beligerent with the officer, he would be allowed to show his dash-cam footage, which I did not consent to, to prove it. I should be able to provide evidence if the officer became beligerent with me when I tell him I was doing exactly the posted speed limit.
We've gone from Innocent Until Proven Guilty to We Need Revenue, so You're Guilty... And if You Try to Prove Your Innocence, We'll Charge You With a Felony.
""
You're gettin no argument from me. This whole thing is comepletely outrageous.
poopshovel wrote:
Yeah, that's EXACTLY what I said...{rolleyes}
Then please, clarify.
You made a lame crack about them only caring about people they agree with.
As long as caring about = going to court for, that is a demonstrably false statement. So it's either false out of ignorance or out of outright lying.
If caring about != going to court for, then it may or may not be false, but it is awful vague and useless.
Feel free to pick one. Lying/ignorant or vague/useless. Your choice.
