Oregon Cop's Inability To Keep His Hands Off A Resident's Phone Costs Taxpayers $85,000 In Legal Fees

from the stop-touching-other-people's-stuff dept

Oregon residents will be opening up their wallets and handing out $85,000 to a citizen and her ACLU representation, thanks to a police officer being the only cop on the scene unable to handle being filmed while effecting an arrest.

Carrie Medina sued the city of Portland in early 2015 after an officer seized her camera and ended her livestream of an arrest two years earlier. The lawsuit [PDF], filed by the ACLU, contains the full conversation between Officer Taylor Letsis and Medina during the livestream's premature conclusion.

It contains some choice highlights in law enforcement overreach and the assertion of nonexistent authority. The confrontation starts with Officer Letsis claiming Medina's phone probably contains "evidence of a crime," and continues on through to Letsis claiming his seizure and search of the phone is neither a seizure or a search but is very definitely something he has the "legal jurisdiction" to do.

After some back and forth with Medina about his supposed "legal jurisdiction," Letsis decided to seize the phone and view the recording of the arrest. And by "seize," I mean "rip Medina's phone out of her hand."

According to the lawsuit, Medina had offered to provide the video footage to the officer if he gave her a subpoena. After he grabbed the phone, a prompt popped up on the Ustream app to archive the video. Medina, concerned the officer wasn't going to save the video, urged him to archive it. He did, and she then walked him through the process of posting it to a social media site, the suit says.

The officer handed the phone back to Medina and ordered her to show him the video and she complied, since he had posted it for her on social media.

Then he seized it again.

"As soon as Ms. Medina pressed 'play' to start the video, Officer Letsis grabbed the phone from her a second time,'' the suit says. "Officer Letsis did so without warning, and without the consent of Ms. Medina, despite the absence of any probable cause - or any reason at all - to suspect either that Ms. Medina had committed a crime, that the phone contained evidence of a crime, or that the evidence (which he himself had just archived to the Ustream web server) was in any danger of being destroyed.''

The lawsuit goes on to point out Gresham police officials dug their own hole with their post-incident statements, which claimed nothing illegal had occurred and no department policies had been violated.

On approximately February 15, 2013, KGW television published a report on the incident. During the report, a person identified as Gresham police spokesman Claudio Grandjean asserted that Officer Letsis' conduct during the encounter had been legal. Officer Grandjean stated:

“He wasn't doing something illegal. Now, was he inappropriate, or... or or a little rough, or officious or whatever? We can look at that, but that's not nearly as important as was he doing something illegal."

Thus, three days after the incident, the Gresham Police Department took a clear and public position that the actions of Officer Letsis were lawful.

And this, from the police chief, issued nearly a month after the incident:

In the March 5, 2013 memorandum, the Chief stated that "I highly discourage the seizing of property, or the arresting of persons, for simply recording your official actions without your knowledge."

In the March 5, 2013 memorandum, the Chief stated that "I support the reasonable actions of officers to seize cell phones when there is probable cause to believe the recording contains evidence of a crime and there are exigent circumstances to seize the cell phone to prevent the destruction or loss of the evidence," but went on to warn that "[i]f no exigent circumstances that place the property at risk of destruction, you must obtain a search warrant to download the video."

According to the ACLU, these statements indicated officers had not received proper training in respecting the First and Fourth Amendment rights of citizens. That pretty much nailed things down case-wise, as proving "failure to train" is a key element in lawsuits seeking to hold government agencies and employees accountable for their constitutional violations.

Understandably, the three entities being sued decided to settle [PDF] rather than see this debacle rack up even greater monetary losses in front of a jury.

The settlement agreement stipulated that Portland and Gresham must adopt new police policies and training regarding the public’s right to film police activities. The City of Gresham’s new policy under the settlement went into effect in May 2016 and the City of Portland’s new policy went into effect in October 2016. The City of Gresham was also required to pay $85,000 in legal fees to Medina.

The victim of police misconduct only asked for legal fees, which she has donated to the ACLU which represented her pro bono. More important to Medina (and the ACLU) was the establishment of department and city policies recognizing the public's right to hold their public servants accountable through public recordings.

The ACLU notes, however, that the new policies don't appear to have reached every officer covered by them.

Oregon law is now clear that the public has the right to record law enforcement doing their jobs in public, but dos Santos says the ACLU of Oregon still hears from people who have been hassled, detained, or arrested, or who have had their devices confiscated for filming the police, including an incident in Portland last November involving another local activist, Benjamin Kerensa.

“We still see arrests, detentions, and seizures simply for filming the police,” dos Santos said. “With this settlement, we hope that law enforcement across the state will finally respect the public’s right to record. Otherwise, we’ll see them in court again.”

Old habits die hard. And the oldest habits always seem to be the worst ones. The sooner these are broken (or, conversely, the sooner those who can't break them are forced out of jobs), the less expensive it will be for Oregon's taxpayers.

Filed Under: carrie medina, civil liberties, filming police, oregon, phones, taylor letsis, warrant

Officers Cite Nonexistent Law In Attempt To Prevent Citizen From Filming Them During A Traffic Stop

from the cf:-some-shit-we-made-up-at-that-other-stop dept

Fortunately for law enforcement officers (but not so much for lowly citizens), courts have routinely affirmed that officers don't need to know the laws they're enforcing to stay in the law enforcement business. No one expects cops to be legal scholars, but the least they could do is get a second opinion when they're faced with a situation where applicable laws may -- or just as frequently, may not -- exist.

We've seen nonexistent laws abused before. Most of the time, a perceived moving violation acts as the groundwork for a fishing expedition. This is fine, sayeth the courts. Other times, nonexistent laws are cited to shut down photographers or harass people otherwise minding their own business.

Texas law enforcement officers are notorious for this. They frequently -- and possibly willfully in some cases -- misread the state's failure to identify statute as meaning they're allowed to demand identification from anyone at any time. They could not possibly be more wrong.

The perfect storm of law enforcement beclownery occurs when they interact with someone who actually knows the law. The bluffing commences in a real-time display of "our word against yours," with officers assisting each other in collective ignorance because, if might makes right, then a united citation of nonexistent statutes by armed men is the rightest thing of all.

Too bad these officers pulled over a defense lawyer. In the officers' defense, they couldn't have possibly known this fact ahead of time. (h/t Adam Steinbaugh)

A Wilmington police sergeant is shown on video instructing a citizen who was pulled over for a traffic stop that he is not allowed to record the interaction due to a new state law prohibiting the recording of police interactions.

Shortly after that, a New Hanover County Sheriff's deputy agrees with the officer that there is a new state law. There is no such law in North Carolina.

The citizen was defense attorney Jesse Bright, who drives for Uber in his spare time. The cops arrested his passenger, then cited a nonexistent law in hopes of preventing him from recording the encounter.

The entire stop lasted more than 20 minutes, culminating in a drug dog sniff of the vehicle (in which the drug dog may or may not have alerted -- officers refused to tell Bright what this dog's alert looked like). The dog apparently gave the officers permission to search Bright's car. Nothing illegal was found. And the only people being evasive or disingenuous were the police officers, who answered Bright's direct questions vaguely or not at all.

Fortunately for Bright -- who will presumably be filing a civil rights lawsuit -- the entire dog-and-jackass show was recorded on his camera. Sure, some of the responding officers were wearing body cams, but it usually takes litigation (or the threat thereof) to liberate this footage. And, in many cases, what's turned over is incomplete, either due to redaction or mysteriously-malfunctioning/unactivated recording devices.

There are two raw recordings at WECT's site. The first is the Q&A session in which Bright is told he's violating a nonexistent recording law. The second shows the K-9 sniff and subsequent vehicle search.

On the bright side, the officers' employer isn't defending their actions.

Chief Ralph Evangelous issued the following statement Wednesday in response to the videos:

“Taking photographs and videos of people that are in plain sight including the police is your legal right. As a matter of fact we invite citizens to do so when they believe it is necessary. We believe that public videos help to protect the police as well as our citizens and provide critical information during police and citizen interaction.”

The WPD stated that each officer will be given this statement to read as well.

A sheriff's deputy was also on hand for the mini-debacle, but he has already been cleared by his agency. However, the sheriff's department also made it clear there is no law against recording officers.

Sheriff McMahon has viewed the Uber driver’s video and believes it is clear that Officers were incorrect in stating that it was illegal to record the encounter. Not only does the Sheriff agree that it is legal to record encounters, he invites citizens to do so. As a result, the Deputy involved has been counseled.

Additionally, in keeping with Sheriff McMahon’s practice of openness and transparency with the citizens that we serve, he has instructed his Staff to ensure that each Deputy has been provided with information about the citizen’s right to record encounters with law enforcement officers.

But for video, as they say. Bright's video of the encounter wasn't held up by red tape, angry union officials, poorly-written public records laws, department stonewalling or a plain old [FILE NOT FOUND] error. His was self-released expeditiously, providing an indisputable account of the events. This possibly explains the lack of law enforcement dissembling or statements insisting everyone should just wait until all the [favorable] facts are in.

Filed Under: filming police, jesse bright, north carolina, police
Companies: uber

Appeals Court Says Filming The Police Is Protected By The First Amendment

from the another-circuit-added-to-the-list dept

In news that will surprise no one, police officers decided they must do something about someone filming the police department building from across the street. That's where this Fifth Circuit Court of Appeals decision begins: with a completely avoidable and completely unnecessary assertion of government power.

Phillip Turner was filming the police department. He was accosted by two officers (Grinalds and Dyess). Both demanded he provide them with identification. He refused to do so. The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car. Given the circumstances of the initial interaction, it's surprising the words "contempt of cop" weren't used on the official police report. From the opinion [PDF]:

Grinalds asked Turner, “How’s it going, man? Got your ID with you?” Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, “I didn’t say you committed a crime.” Grinalds elaborated, “We have the right and authority to know who’s walking around our facilities.”

Grinalds again asked for Turner’s identification, and Turner asked Grinalds, “What happens if I don’t ID myself?” Grinalds replied, “We’ll cross that bridge when we come to it.” Grinalds continued to request Turner’s identification, which Turner refused to provide. Grinalds and Dyess then “suddenly and without warning” handcuffed Turner and took his video camera from him, and Grinalds said, “This is what happens when you don’t ID yourself.”

Turner asked to speak to their supervisor. Given that this happened right across the street from the department, Turner didn't have to wait very long. A supervisor arrived and came to at least one correct conclusion:

Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, “You’re right.”

Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does… or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest.

After some discussion between the officers, Turner was released and his camera was given back. Turner filed a civil rights lawsuit. The lower court granted immunity to the officers on all allegations. The Fifth Circuit, however, refuses to go as far. And in doing so, it actually takes it upon itself to address an issue it easily could have avoided: whether the First Amendment covers the filming of public servants, specifically law enforcement officers.

First, the court asks whether the right to film police was "clearly established" at the time the incident took place (September 2015). It can't find anything that says it is.

At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality”: “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Thus, Turner’s reliance on decisions that “clarified that [First Amendment] protections . . . extend[] to gathering information” does not demonstrate whether the specific act at issue here—video recording the police or a police station—was clearly established.

The court doesn't leave it there, although it could have. The court notes that there's a circuit split on the issue, but just because the issue's far from decided doesn't mean courts have not recognized the right exists. It points to conclusions reached by the First and Eleventh Circuit Appeals Courts as evidence the right to film police has been acknowledged. Even so, there's not enough clarity on the issue to remove the officers' immunity.

We cannot say, however, that “existing precedent . . . placed the . . .constitutional question beyond debate” when Turner recorded the police station. Neither does it seem that the law “so clearly and unambiguously prohibited [the officers’] conduct that ‘every reasonable official would understand that what he is doing violates [the law].’” In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turner’s activities.

This is where the opinion gets interesting. While many judges would leave a trickier, somewhat tangential issue open and unanswered, the Fifth Circuit Appeals Court decides it's time for it to set some precedent.

We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

[...]

To be sure, “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.

In the Fifth Circuit -- joining the First and Eleventh Circuits -- the First Amendment right to film police has been asserted. Unfortunately, the issue still remains mostly unsettled, and there's currently nothing in front of the Supreme Court that would set national precedent. Unfortunately, the decision doesn't help Turner with his First Amendment claim, but it will help others going forward.

The court also reverses immunity on one of Turner's Fourth Amendment claims. While it finds the officers were justified in questioning him, they went too far when they arrested him. First, as pointed out above, the "failure to identify" law can't be used to predicate an arrest. And, after questioning him, the officers still had nothing approaching the probable cause they needed to make a warrantless arrest. Even though Turner was detained in the back of the squad car for only a short period of time, the fact that he was obviously not free to go makes it an arrest under the Fourth Amendment.

Strangely, the dissent, written by Judge Edith Brown, claims the Appeals Court has no business setting precedent. In her opinion, the nation's second-highest courts should stand idly by and wait for the Supreme Court to do the work.

The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” The majority derives this general right to film the police from “First Amendment principles, controlling authority, and persuasive precedent.” But the Supreme Court has repeatedly reversed attempts to define “clearly established law” at such “a high level of generality.” White, 137 S. Ct. at 552.

The judge narrowly defines Turner's filming to ensure it would never fall under this supposedly "broad" definition of the right. She says the Appeals Court defines the protection as covering "filming police." But Turner wasn't doing that.

To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police “carrying out their duties in public.” E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station.

Somehow, filming police officers as they enter and exit a public building is not "filming police carrying out their duties in public." Remarkably, Judge Brown says there may be "reasonable" security concerns that could Constitutionally prevent Turner's actions.

The majority does not determine that the officers here violated Turner’s First Amendment rights—perhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station.

If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants.

Unsurprisingly, Judge Brown thinks Turner's involuntary stay in the back of a squad car could reasonably be viewed as Turner just hanging out there waiting to speak to a supervisor:

Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turner’s detention into a de facto arrest. At the very least, Officers Grinalds and Dyess did not act objectively unreasonably in waiting for the requested supervisor—especially because Lieutenant Driver had to come from the Fort Worth Police Station across the street.

Except that most people "waiting for a supervisor" don't do so while:

a.) handcuffed

b.) sitting in the back of a locked squad car

The length of the detention doesn't matter. And it was ultimately the supervisor's arrival that sprung Turner. If not for the arrival of the supervisor -- who immediately recognized Turner couldn't be arrested for refusing to ID himself -- Turner would undoubtedly have spent an even longer period being detained, if not taken into the PD and processed.

The good news for Turner is that his sole remaining Fourth Amendment claims -- the wrongful arrest -- lives on. But the bigger win -- the First Amendment protections confirmation -- helps everyone else but him.

Filed Under: fifth circuit, filming police, first amendment, philip turner, police

Startup Offers Citizens More Opportunities To Get Shot By/Have Their Smartphones Seized By Law Enforcement

from the I-want-to-carry-a-gun-to-a-soccer-game,-but-don't-want-to-look-unhinged... dept

Someone's worst fears just became a reality. A lot of "someones," actually.

A Minnesota startup is making headlines today for its novel solution to the age-old problem of "children being frightened by strangers with guns."

Behold, the double-barrel .380-calibre handgun by Ideal Conceal: a gun designed to look exactly like a smartphone, complete with fake camera lens and headphone jack.

"In today's day and age, carrying a concealed pistol has become a necessity," reads the company's website. "But what if you didn't have to conceal?"

"Smartphones are EVERYWHERE, so your new pistol will easily blend in with today's environment," the site further explains. "From soccer moms to professionals of every type, this gun allows you the option of not being a victim."

I'm not sure people are going to be more comforted that people are carrying guns they can't see, especially not US law enforcement, which has already demonstrated it fears cell phones as much as it fears guns.

Here's Ideal Conceal's new weapon:


Now, this is not the first disguised weapon offered for sale. Nor is it even the first gun designed to look like a cell phone.


But it is the one receiving the most media attention. Law enforcement officials have already registered their dismay.

"In general, the concept of any kind of weapon that's disguised, so that it's not apparent that it's a weapon, would be cause for concern," said Bill Johnson, executive director and general counsel for the National Association of Police Organizations.

Yes, it is a cause for concern. But not just for law enforcement agencies. It's highly doubtful most criminals will have much use for a gun that only holds two bullets. But it does give law enforcement the justification it needs to continue harassing people for recording police activity. When any smartphone could conceivably be a weapon, securing the scene means grabbing all the smartphones in the vicinity. Whether or not this seizure would hold up in court during civil proceedings still needs to be tested, but by that point the elimination of possibly damning footage will have already been accomplished.

Worse, it makes mistaking a cell phone for a gun a justification for shooting someone carrying nothing more dangerous than a communication device. The slim possibility that it may be a weapon would generate the requisite "fear for safety of self and others" needed to deploy deadly force. While 99.9999% of the time, the smartphone will only be a smartphone, the 0.0001% chance that it isn't is a blank check for phone seizures/deadly force.

For those concerned about any of these issues, the nation's gun laws won't be of much comfort. At best, the law would require purchasers to shell out $200 in tax (above the $395 retail price), rather than the normal $5 tax applied to most guns -- as this would fall into the "any other weapon" category. Chances are concealed-carry permits would be needed in states requiring them, even if the weapon is carried in "plain sight."

Ideal Conceal says it's already received 2,500 emails from interested customers, which is really a very small percentage of gun owners. Despite this weapon's niche status, we can expect to see more law enforcement officials and legislators expressing their concern in the near future, possibly in the form of badly-written bills filled with broad wording and unintended consequences.

But the broader harm won't be felt by law enforcement. It will be felt by citizens "armed" with actual cell phones, who will find their devices confiscated more frequently, possibly with the assistance of deadly force.

Filed Under: filming, filming police, guns, mobile phones, police

Virginia Police Force BBC Reporters To Delete Camera Footage Of Police Pursuit Of Shooter

from the hello-first-amendment dept

The story of this morning's live "on air" shooting of a local TV news reporter in Virginia is horrifying on many, many levels. Like with many senseless killings, there are all sorts of "big questions" being raised, most of which aren't really appropriate Techdirt fodder, though I'm sure those of you interested in those things can find other outlets for them. However, one tangential story fits right into Techdirt's core areas of focus: apparently two BBC reporters who were covering the police pursuit of the apparent shooter (who then shot himself) were forced by police to delete their own camera footage. This is illegal. I don't know how many times it needs to be repeated. Even the DOJ has somewhat forcefully reminded police that they have no right to stop anyone from photographing or videotaping things, so long as they're not interfering with an investigation. And yet...

Two BBC reporters covering the police pursuit of Vester Lee Flanagan said that cops threatened to seize their car and camera if they didn't delete footage of site where the Flanagan shot himself. "Was too far away to get any good footage. One officer threatened to tow my car and take my camera," reporter Franz Strasser tweeted. "Watched me delete my one file, and let me go. Other officer apologized and said we have to understand." His colleague, Tara McKelvey, filmed the encounter.

It appears that the cops used the same bullshit excuse we've seen them use in the past: that it's "evidence."

Officer Clark says: "that could be evidence and seized." He was telling us about our camera. The suspect is reported dead.

— Tara McKelvey (@Tara_Mckelvey) August 26, 2015

But, as Strasser notes, if that's true, then why did the cops make them delete it?

But why they are then okay with deleting 'evidence' makes one question their reasoning.

— Franz Strasser (@franzstrasser) August 26, 2015

As has been noted before, this is a clear violation of Constitutional rights, and the BBC and the reporters in question could file a civil suit against the police department, potentially winning a fair amount of taxpayer money because the police in Virginia are apparently unfamiliar with the First Amendment of the Constitution.

Filed Under: bryce williams, deleting video, filming police, first amendment, franz strasser, free speech, police, reporting, shooting, tara mckelvey, tv, vester lee flanigan, virginia
Companies: bbc, wbdj

Boston Police Commissioner Wants Cameras Further Away From Cops, Criminal Charges For Not Assisting Officers

from the Accountability-Free-Zones dept

Earlier this year, Texas legislator Jason Villalba attempted to shortchange the First Amendment in the name of "officer safety" by making it illegal to film police officers from within a 25-foot, constantly-moving radius. His proposed law was greeted with criticism (and death threats, according to Villalba) and was consequently discarded because it was a terrible, arbitrary law that had only the briefest of flirtations with reality and logic.

For one thing, the law would have prompted officers to split their attention between the job at hand (whatever crime they were responding to/investigating) and Villalba's directive. Of course, officers could easily choose not to enforce this bad law, but far too many officers have been filmed leaving crime scenes just to hassle citizens with cameras. And the instant the officer started closing the gap between him and the photographer, a law would have been violated in letter, if not in spirit. Villalba is a staunch supporter of law enforcement agencies and his proposal was just an attempt to give officers a little less accountability.

So, despite this bill being ridiculed out of existence, hopes springs eternal in those who feel the public is the worst of their problems. Boston's police commissioner is now asking for the same accountability halo for his officers.

Boston police Commissioner William B. Evans is calling for laws to regulate the proliferation of cellphone-toting citizens and so-called cop watchers dedicated to recording potential police misconduct — a trend that has given rise to new challenges and risks for officers at crime scenes.

“If we can get legislation that protects both sides, I’m all for it,” Evans told the Herald late last week. “Should you be up in a police officer’s face and agitating them? Absolutely not. Because we’ve seen it through all these demonstrations. It interferes sometimes with us (being) able to look at the crowd and focus on what our mission is.”

Evans is wholly disingenuous throughout the course of this article. He first tries to spin this as a problem caused by citizens. His claim that people are "agitating" officers by getting "up in their faces" may be minimally true, but it's far more common to see police officers walking up to people filming them and getting in their faces. Generally, citizens filming police activities don't approach cops. It's almost always the other way around. So, if there's an issue here, it should be addressed with officers first, who seem far too willing to abandon the "mission" just to shut down recordings.

“But when you’re just out there for the very reason of, you know, trying to get a gotcha moment, that’s irritating to us,” Evans said, pointing to instances on July 4 and following the March shooting of officer John T. Moynihan, when police were met by a group of vocal video-takers at the edge of the scene.

This sort of argument has been raised before to defend actions taken against photographers. It's the law enforcement equivalent of the childhood go-to complaint, "He started it!" If officers would simply focus on their jobs rather than citizens and their cameras, there would be fewer "gotcha moments." Nothing about enforcing the law translates to "taking the bait." Every officer that shows restraint in the face of someone hoping for a "gotcha moment" will come out of the incident victorious. It will be the photographer who looks ridiculous, rather than the other way around. If Evans is using this as justification for a protective, camera-free space around cops, he's basically admitting his officers have self-control issues and cannot handle being "irritated."

Evans goes even further than Villalba, however, when he starts advocating for arresting citizens who don't leap in the moment they sense an officer might have lost the upper hand in an altercation.

“During the altercation, as officers struggled to subdue the suspect, they noted that they were being videotaped by the large crowd that had gathered,” officers wrote in their report. “In need of help, officers asked members of the crowd and a security guard for help. No help was offered.”

Evans said that should never happen. “I’d also like to see some legislation that if a cop is on the ground struggling with someone, like he was the other night and everybody is videotaping, someone should be held accountable for not stepping up and helping them,” he said.

It would seem that paying out settlements for police misconduct isn't financially damaging enough. Now, Evans wants to open his department and the city of Boston up to additional lawsuits for injuries sustained by citizens providing mandatory assistance to struggling cops. And what happens if the responding member of the public takes it too far and provides some additional excessive force of their own? The subdued suspect may look at police officers and their immunity and decide it's much easier to sue a citizen who isn't protected by this legal shield.

While I understand his frustration that the public seems more interested in watching than helping, the public is usually similarly unhelpful when other citizens are receiving a beatdown. And the larger the crowd, the less likely it is that anyone's going to put their own lives/health on the line for someone else. Evans says "someone" should be held responsible in situations like this, while discussing a "crowd." But who? Any random person? All of them? The security guard? If people are going to have their preference to remain uninvolved in altercations criminalized, so should officers who refuse to show the same deference to the public -- either by responding to every perceived threat with acts of violence or by pointing out that "protect and serve" isn't actually part of any police department's policies or credo.

Evans' low-key pitch for legislation on these issues shows he truly believes police officers deserve more rights than citizens. He believes cops should work in an irritant-free environment with the knowledge that the general public will put itself in harm's way to save a public servant.

Filed Under: assisting officers, boston, filming police, photographs, photography, police

New York District Court Denies Immunity To NYPD Officers Who Arrested A Citizen For Filming Them

from the no-immunity-for-deliberate-obtuseness dept

Some NYPD officers have continued to cling to the belief that citizens aren't allowed to film them, despite plenty of documentation otherwise. A letter issued to the Baltimore PD, but that CC'd law enforcement in general noted that "the justification for [filming police] is firmly rooted in longstanding First Amendment principles." (The footnote appended to this added: "There is no binding precedence to the contrary.") The NYPD's own Patrol Guide states this:

“[T]aking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others.

The NYPD's chief of federal litigation likewise reminded officers that bystanders could film police officers provided they didn't interfere with duties or operations.

It would seem to be clearly established (including decisions to this effect from all but one circuit court in the US) and yet certain officers are still shutting down citizens with cameras and arresting them on clearly bogus charges. The NYPD is currently facing a lawsuit from the ACLU that hopes to obtain a ruling declaring this activity to be covered by the First Amendment. That lawsuit may ultimately prove to be extraneous as the Southern District of New York (which oversees New York City) has now confirmed that citizen recordings are protected First Amendment activity.

The facts behind the suit are this:

Douglas Higginbotham was covering the Occupy Wall Street protests for a New Zealand TV station. While shooting footage from atop a phone booth, he was ordered to get down by NYPD officers. He attempted to climb down but there were too many people crowded around the booth. So, the cops dragged him down by his feet, damaging his camera in the process. He was then cuffed with zip ties for three hours (and sprung from them with a butter knife because the NYPD is apparently more interested in the cuffing process than the releasing process) and charged with disorderly conduct.

Higginbotham claimed the arrest was performed in retaliation for his filming police officers, and as such, was a false arrest. The NYPD countered by claiming Higginbotham's supposed "failure to disperse" justified the charge. The court found otherwise:

The parties dispute whether, as a journalist covering the protest, Higginbotham can properly be said to have been “congregating” with the protesters within the meaning of the statute. The Court need not resolve this question, however, because there is a different reason why the statute does not cover Higginbotham’s conduct: the defendants’ order for Higginbotham to climb down from the telephone booth was not an order to “disperse.” That word, as used in the statute, means “[t]o separate, go different ways.” Oxford English Dictionary (2d ed. online version Mar. 2015). There is no allegation that Higginbotham was ordered to “separate” himself from the rest of the crowd, by leaving the scene of the protest. On the contrary, as alleged, the defendants instructed that he climb down from the phone booth into the crowd. Further, “[a] group can disperse; an individual cannot.” Because the defendants’ order was directed at Higginbotham alone, it could not be an order to disperse.

The NYPD also raised a variety of other justifications for this arrest (including potential damage to the phone booth and creating a "hazard" by his being on top of the phone booth) but these were also dismissed as inapplicable by the judge. The department also claimed that, even if there were no legitimate reason to arrest Higginbotham, the officers were entitled to qualified immunity.

In support of qualified immunity, the defendants merely summarize their version of the facts and assert that “the officers were objectively reasonable and patently not incompetent.” (Defs.’ Br. 12.) At the summary judgment stage, they will have the opportunity to try to demonstrate this by submitting evidence showing that reasonably competent officers in their situation could have at least disagreed on whether probable cause existed. Based solely on the complaint, however, the Court cannot conclude that this must have been the case.

Finally, the court addresses the First Amendment issue, and here the NYPD officers again attempt to claim immunity.

The defendants further assert that they are entitled to qualified immunity because the right to record the police is “insufficiently defined.”

The "no one directly -- at that moment -- told us not to" defense is one that should be undermined considerably by statements and policies issued by the NYPD itself. The court doesn't need a copy of the Patrol Guide to arrive at the same endpoint.

The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’”

The court then goes on to point out that the First Amendment rights the officers claimed were "insufficiently defined" had been clearly established by years of precedent rulings.

Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation. As alleged, however, Higginbotham’s conduct falls comfortably within the zone protected by the First Amendment. The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming. There is nothing in the complaint suggesting that his filming interfered with the arrest. Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.

Now, this is still far from the final ruling, so there's no precedent specific to the NYPD's territory set at this point. But the court's denial of qualified immunity in respect to Higginbotham's First Amendment claims serves notice that future assertions of well-meaning, not-patently-incompetent ignorance won't be entertained by this court. The plaintiff's suit will move forward and the officers accused of taking retaliatory action against a photographer will have to move right along with it. I would expect a settlement in the near future if the NYPD wishes to prevent the Second Circuit from joining the rest of the circuit courts in establishing a First Amendment right to record.

Filed Under: arresting citizens, filming police, first amendment, immunity, journalism, nypd, photographing police, police, reporting

New Jersey Cop Demands Camera From Eyewitness After Police Dog Allowed To Maul Prone Suspect

from the additional-narrative-control-efforts-to-follow dept

If you've done nothing wrong, you've got nothing to hide, right? That's what the government tells us when it wants to erect cameras and fund domestic surveillance efforts. So, what do you tell a police officer who demands a citizen hand over their phone? Even if the officer has done something wrong, he still can at least attempt to hide it. And even if the effort fails, he still likely has nothing to fear. That's the imbalance of power at work and it leads directly to this sort of thing.

New Jersey police may have gone too far when they took the cell phone from an onlooker who recorded their encounter with a suspect who was mauled by a police dog and later died.

The man, Phillip White, had dog bites all over his body last week, his lawyer said, and a jarring video shows cops struggling to pull the dog away.

A police officer took the video from a witness who was recording the arrest — possibly in violation of the law — but the footage was later obtained by NBC Philadelphia.

The tail end of the "arrest" and the officer's questionable demand for the witness' cellphone can be seen here:


[And here's additional, just-released video, courtesy of PINAC that seems to show the suspect was unconscious for a majority of the "altercation."]


Demanding personal information from an eyewitness is one thing, but demanding the person turn over the phone is something else entirely. Either the demand failed to take or the phone was returned intact to its owner (third possibility: an automatic upload to cloud storage after recording was interrupted) because the footage was later turned over to a Philadelphia news station.

No excuse has been offered for this officer's actions yet, but one imagines the justification will fall under the "evidence of a crime" warrant exception. Of course, any criminal activity committed by Phillip White, the suspect being mauled by a police dog in the video, had long since ceased. The only potential criminal activity captured by this recording would have been committed by law enforcement officers.

The officer's line of questioning gives some insight into his motivations. First, he asks if the witness saw everything. Then he informs the witness that he'll need to take the cellphone.

The police were responding to a "disorderly person" call. By the end of it, the "disorderly" person was dead. Police claimed White was combative and a dispatch recording contains an officer claiming the suspect tried to grab his gun. Eyewitnesses, however, said White wasn't resisting. Even the single eyewitness who did say White was resisting said he wasn't by the time the recording was captured.

Agustin Ayala of Ayala Towing said he was driving down Grape Street in his tow truck when he saw two police cars on the street and two officers trying to handcuff a man.

"He was resisting," Ayala said of White.

The two officers, including a K9 officer, handcuffed the suspect and brought him to the ground, he said. Ayala said he asked the officers to stop because he was concerned for the man's welfare.

An officer then reportedly said to Ayala, "you didn't see him try to take my gun."

So, it would appear the deployment of arguably excessive force was retaliation for White's earlier, alleged gun-grabbing. For making an officer feel fear, he was restrained to death with an assist from a four-legged officer -- one who won't stop attacking until instructed otherwise. And at the end of it all, there's an illegal "request" for a citizen's camera. There isn't much about the incident that looks good and the officer's demand for the unflattering footage seems to confirm he's well aware of this.

Filed Under: cameras, filming police, new jersey, phillip white, police

District Court Says You Can (Probably) Photograph Police, But Only With A Regular Camera, Not A Drone

from the also:-plenty-of-deferential-exceptions dept

You have a First Amendment right to film police officers and other public figures during their performance of public duties… except when you don't. Police officers are given the most deference in these matters, despite a handful of circuit courts upholding this right and the DOJ itself stepping in to inform police departments around the nation that, yes, citizens have a right to record police officers in public.

But the "right" is loaded with exceptions, and it's not backed up by circuit court decisions in several states. To date, most courts have given law enforcement officers plenty of leeway to shut down recordings as they see fit and stay one step ahead of accountability.

In February of last year, Pedro Rivera overheard a police scanner call for respondents to a serious traffic accident in Hartford, Connecticut. Rivera, a cameraman for a local news station, headed to the crash site and attempted to gather footage using his personal drone. This drew the attention of responding officers, who forced Rivera to remove himself and his drone from the scene. (They also suggested his employer could stay in their "good graces" by punishing Rivera for hovering by proxy 150 feet above the scene of the accident.)

Rivera sued, claiming the police violated several of his rights, including his First Amendment right to film police officers performing their public duties. Connecticut's federal court has sided with the police officers, in effect declaring that those within the Second Circuit's coverage area don't have a right to film police -- at least not with a drone.

As for his First Amendment claims, the court found that there was no recognized right to record police activity. While other circuits have split on the issue -- there is such a right in the First, Seventh, Ninth and Eleventh circuits -- the Second has never addressed the question, meaning that there could be no clearly established right as needed for the officers to waive their qualified immunity.

The district court also went out of its way to note that, had Rivera even been in a jurisdiction which protected the right to film police activity, he may have fallen outside the scope of those protections. He wasn't standing by with a camcorder, after all, but sending "a flying object into a police-restricted area ... effectively trespassing onto an active crime scene." Similarly, because there was no constitutional violation, the court dismissed Rivera's retaliation complaint, as you cannot retaliate against the exercise of a right that doesn't exist.

Specifically, the court seems to have an issue with the type of camera used, rather than the act itself.

Moreover, the Court notes that in cases where the right to record police activity has been recognized by our sister circuits, it appears that the protected conduct has typically involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, the police activity at issue. [...]

By contrast, here Plaintiff directed a flying object into a police-restricted area, where it proceeded to hover over the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene. See, e.g., U.S. v. Causby, 328 U.S. 256, 266 (1946) (holding that invasions to airspace situated within ―the immediate reaches of land—including airspace so close to the land that invasions of it affect the use and enjoyment of the surface of the land—are in the same category as invasions to the land itself). Even if recording police activity were a clearly established right in the Second Circuit, Plaintiff‘s conduct is beyond the scope of that right as it has been articulated by other circuits.

The case cited quotes Congress as defining "public domain" airspace as somewhere between 500-1000 feet above the ground, depending on location, time of day, weather, etc. In the 1946 case, military planes were buzzing Causby's farm at less than 100 feet above the ground. The Supreme Court found in Causby's favor.

This raises the question: would Rivera's photography have been protected if it had occurred above 500 feet? The district court has basically declared that an altitude of 150 feet is an "invasion" of the ground below it. Would going higher restore rights? Or would deference to law enforcement make an accident scene off-limits to aerial photography?

This is where older rulings clash with new technology. The court plainly states that it would have viewed Rivera's photography more charitably had he been using a handheld camera, placing him closer to the accident scene than his drone ever was. Somehow, the fact that it was overhead seems to be what's holding the district court back from upholding Rivera's First Amendment rights. A height of 150 feet likely interfered with nothing more than the officers' sense of control. Because the police couldn't "rope off" the sky, they had to do the next best thing: order the flying camera and its operator away from the scene.

The court says the camera "trespassed" into an active crime scene. But cameras do that all the time. The yellow tape may keep observers further away horizontally from crime scenes, but it does not prevent them from observing or filming any visible part of it. This decision gives police control over the skies, even when the circumstances don't demand it. They certainly have every right to ground a citizen's drone if it's interfering with police or medical aircraft, but otherwise it's just another camera -- in this case a camera 150 feet away from the nearest police officer. There's no interference happening here, and yet, the "right" to film police has been limited to only certain earthbound photography equipment -- and even then, still subject to any number of restrictions imposed arbitrarily by police officers.

Filed Under: drone, filming police, first amendment, journalism, pedro rivera, photography, police

Nothing Changes: Cops Still Threatening Citizens, Breaking Laws To Shut Down Recordings

from the low-level-thuggery dept

The NYPD should know better. In August, it handed a $125,000 settlement to a man it arrested for recording officers performing a stop-and-frisk. A month earlier, the ACLU sued the NYPD in federal court to prevent the NYPD from arresting the people recording them. It's even clearly stated in the NYPD policy manual that "bystanders are allowed to film [officers] as long as they're not interfering with the officers' duties and/or police operations."

And yet, the message hasn't gotten through. A man was harassed and had his cellphone battery stolen by an officer who claimed he was interfering with an arrest occurring 30 feet away. NYPD officers have tried other tactics as well, such as laughably claiming a cellphone could be a gun. A man is choked to death by an NYPD officer -- with the whole incident being recorded -- and police officers claim the citizens who record cops are to blame.

But the message hasn't gotten through. And why should it? As some have openly stated, respecting this right has no upside for police officers. So, they continue to harass and threaten members of the public who try to exercise this right. The incident captured here is particularly chilling. As Reason's Ed Krayewski points out, the officer caught on tape here delivers an implicit threat of violence to the person wielding the camera. (The confrontation begins about 2:30 into the video.)

From the photographer:

The European cop tells me that I am making him nervous by simply speaking and not to make him fear for his safety.

The phrase "fear for my safety" has been used by cops to justify heinous actions, like the killing of unarmed members of the public, or the vindictive deployment of excessive force. A cop saying, "Don't make me fear for my safety," is a cop telling you he's ready to beat you, shoot you or otherwise do you harm. It's the baring of fangs. The rattle of snake's tail. It's a phrase no cop should deliver, especially to a person who's doing nothing illegal and poses zero threat to anyone.

This next incident, coming our way via Ex-Cop Law Student, shows multiple violations of the law, all of it by the officer in the recording.

The setup is this: an open-carry advocate is standing on a street corner carrying an AR-15 and some signs while handing out pamphlets containing open-carry law information. That's when two cops roll up and shut him down.

Not only does the officer express irritation with the open-carry law (and the person openly carrying a weapon), but he throws his sign to the ground and begins demanding that the person show him some ID. The cop can demand this all he wants, but he actually has to make an arrest before this demand carries any legal weight. Ex-Cop Law Student breaks down every legal violation the law enforcement officer performs during this 4-minute video.

[T]he arrest at 1:43 for Failure to ID because officer 4771 is “tired of you idiots coming out here.” OK. So now we know that 4771 is completely ignorant of § 38.02, Tex. Pen. Code. Not having an ID on one’s person is not an element of the offense. For that matter, refusing to identify at all is not an offense, unless you have arrested him on another charge, which you have not.

Now we get to the good part, which shows 4771 is a complete idiot. If you are going to commit a felony, don’t do it on camera.

At 1:53, idiot 4771 says that we taking the phone off and “we’re going to erase it.” Guys, there’s your felony by the officer. Texas law states that Tampering With or Fabricating Physical Evidence is:

“(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:

(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; . . .”

Tex. Pen. Code Ann. § 37.09 (Vernon).

Fortunately for the cop (I suppose…), he couldn't actually manage to erase the recording. If he had done so, it would be a third-degree felony carrying a prison sentence of 2-10 years. But because the technology outwitted him, he's only on the hook for a second-degree felony (6 months-2 years). Of course, he likely won't be on the hook for any of this once the IA investigation is over. Cops who do this sort of thing rarely find themselves behind bars.

But, as Ex-Cop Law Student points out, this recording should be enough to damage Badge #4771's credibility in any case he's involved with.

So from now on, at each and every court appearance made by officer 4771, the defense attorney should be informed of this information. That means that the cross-examination would not be very pleasant, if it comes to that. It likely won’t because most District Attorney’s will not touch a case where one of the police witnesses is tarnished like that.   So now officer 4771 is useless as a witness.

You can argue about where exactly open-carry advocates fall on the thin line between clever and stupid but the bottom line is this: those enforcing laws should know the laws they're enforcing. They should also know that the right to record police officers is guaranteed. There is no state law that preempts the Constitution. The US government itself has handed down guidance on this very issue.

That's bad enough, but in each situation, officers went further, threatening citizens with violence and breaking laws themselves. Citizens aren't given the leeway cops are, nor are they provided with any sort of immunity for their stupid actions. Cops have both their departments and legal protection on their side and that's what leads to -- and encourages -- this sort of behavior.

Filed Under: filming police, police