Cop To Cameraman: 'If You're Invoking Your Rights, You Must Be Doing Something Wrong'

from the we'll-let-you-know-when-you-have-some-'rights'-you-can-use dept

The notion that certain rights are guaranteed to citizens is being proven false every day. For instance, you have the First Amendment right to film police officers and other public officials, but it often takes an official policy change (usually prompted by lawsuits) before these public servants will begrudgingly respect that right.

You also have certain rights guaranteed by the Fifth Amendment, but even these aren't innate. You can't simply remain silent while detained or arrested. You have to invoke these rights (often repeatedly) or risk having your silence (things you didn't say) used against you.

In the case of photographing police officers, you'll notice that activists and others who are recording will invoke their rights repeatedly. In some cases, this forces those being recorded to back off and reconsider their attempts to shut down recordings or seize cameras. It doesn't always work but it works often enough to show that these police officers know you have this right but won't respect it unless you invoke it.

Techdirt reader timlash sends in this video of two citizens filming a sally port (where prisoners are shuttled in and out of the courthouse) in Jacksonville, Florida. As is to be expected, police officers show up and try to shut down the recording of a public building from a public sidewalk. But the most amazing part of the video is the police officer's statement in response to the cameraman invoking his rights.

"You must be doing something wrong if you invoke your rights."

That's the prevailing attitude. Invoke your Fourth Amendment rights to be free of unreasonable searches and seizures and the government assumes you have something to hide. Invoke your Fifth Amendment rights and the government assumes you've committed a crime. Invoke your First Amendment right to record police officers and you're told that you're "obstructing" an investigation or creating a public disturbance.

You have rights as an American citizen. They just won't be respected by default. And when you invoke them, you'll be treated as an activist (at best) or a criminal (at worst). The land of freedom has tipped the balance away from the citizens and towards the government -- because whether we're fighting terrorism, drugs or illegal immigration, the respect of citizens' rights impedes the progress of the nation's many "warriors."

Filed Under: cameras, invoking rights, police, recording police, rights, threats

Lawsuit Filed To Force NYPD To Respect Citizens' First Amendment Right To Record Police Officers

from the inevitable-law-enforcement-response:-'make-me' dept

The NYPD may be arbitrarily slapping the word "secret" on its internal documents and making sure all of its intelligence stays safely within its walls, but when it comes to communicating with the outside world, it's apparently a one-way transaction. It talks (when it wants to and can completely guide the narrative) but it rarely ever listens. Case in point: the Brooklyn DA says he won't prosecute low-level marijuana possession charges, so naturally the Brooklyn division tells its officers that low-level marijuana possession arrests will continue uninterrupted.

Now, it's facing a lawsuit for its refusal to stop arresting citizens for filming police officers. A recent court of appeals decision UPHELD (all caps for a reason) the public's First Amendment right to film police officers and other public servants. The ruling was loaded with exceptions, but it did reaffirm what was already a legal right, albeit one that is routinely trampled by members of law enforcement who take offense to being publicly recorded while performing their public duties.

A federal lawsuit, which cites arrests of people who recorded police confrontations or activity, was filed on Tuesday asking a judge to declare that people have a right under the First Amendment to film or record officers working in public places.

The suit was filed in Federal District Court in Manhattan on behalf of one of the people arrested, and seeks a permanent injunction barring New York City employees from retaliating against those who record them in public.

The NYPD apparently believes it's exempt because there's been no specific ruling from a district court covering its jurisdiction. This despite the fact that the DOJ itself fired off a letter in response to a lawsuit brought Baltimore that stated plainly:

[T]he justification for this right is firmly rooted in longstanding First Amendment principles.

This also despite the fact that its own Patrol Guide say photographing police isn't an arrestable offense.

[T]he Police Department Patrol Guide states that “taking 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.

This also despite the fact that the NYPD's own chief of federal litigation made the following statement:

"[B]ystanders are allowed to film police officers as long as they’re not interfering with the officers’ duties and/or police operations.”

The NYPD may be trying to dodge this on jurisdiction specifics, but note that the DOJ's letter doesn't specify this only applies to Baltimore. The letter plainly says "First Amendment right," which is something applied to all Americans, regardless of jurisdiction. It also references the Glik decision, which plainly established citizens' right to record.

Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.(2) See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

The footnote (2) begins with this unambiguous sentence:

There is no binding precedent to the contrary.

And yet, the NYPD continues to harass, arrest and shut down citizens who record police interactions. Shawn Thomas' experience, which we detailed here earlier, saw him harassed by a police officer who claimed he was interfering with police business despite the fact that he had to walk 30 feet away from the detained suspect to deliver this statement. The whole interaction began with police intimidation tactics and culminated in the arrest of Thomas.

Thomas was not an isolated incident.

Debra Goodman, was taking a cellphone video of paramedics assisting a woman in a wheelchair on West 73rd Street and Broadway last year before a police officer intervened.

"He asked me to produce ID. I refused, because I knew I wasn’t doing anything wrong,” Goodman told CBS. “And then he grabbed my arm and handcuffed me, and told me I was under arrest.” She was held for 25 hours.

This lawsuit asks for a permanent injunction prohibiting retaliatory actions from NYPD officers against those who record them. Time and money are going to be poured into "protecting" a right that already unequivocally exists. And there's no guarantee the NYPD will pay attention even if it receives a jurisdiction-specific injunction. After all, a federal appeals court ruled the state's wiretapping law (something frequently abused to prosecute citizens for recording cops) was unconstitutional and this decision was greeted by Morgan County prosecutors and law enforcement with a "so, business as usual" shrug. It took the involvement of the ACLU to get Morgan County to align itself with a ruling that plainly stated recording police was not a violation of the wiretapping statute.

What the NYPD is doing is ignoring common knowledge and several court decisions. The DOJ's letter may have been addressed to Baltimore's police department, but the wording (and the cases cited) apply to every law enforcement agency. The US government itself has declared that citizens have this right, something that comes bundled with the First Amendment. It's utterly ridiculous that anyone should have to force the issue in a "local" court in order to make the NYPD respect citizens' First Amendment rights.

Filed Under: citizens, filming, first amendment, nypd, police, recording police

Lancaster Cops Still Unclear On Public's Right To Record; Harass Same Citizen Who Recorded Them Last Week

from the there's-a-culture-problem-here dept

Apparently, the statement from a Lancaster, PA police spokesman that citizens are allowed to film on-duty police officers hasn't made its way to the entire staff yet. Carlos Miller at PINAC reports that Paul Dejesus, the same man who had an officer walk away from taking an accident report because he was being filmed, was again approached by a police officer who demanded he stop filming because recording his voice "violated" Pennsylvania's wiretapping laws.

Less than a week after a Pennsylvania man posted a video showing a Lancaster cop refusing to take an accident report because the man insisted on his nephew recording the interaction, a story that was picked up by a national technology site as well as the local newspaper, another Lancaster police officer threatened to arrest the man on wiretapping charges, indicating a clear pattern of abuse of authority when it comes to the Constitutionally protected act of recording cops in public.

Fortunately, Paul Dejesus knew his rights and was not afraid to assert them, even after the cop gave up on the wiretapping threat and began threatening him with disorderly conduct, which is the usual catch-all charge for contempt of cop.

But Dejesus slapped that threat down by pointing out he was recording from his own yard.

But if he was recording from a public sidewalk, he still wouldn't have been guilty of disorderly conduct in that state.

The officer tries a little ad hoc prior restraint by shining his flashlight at Dejesus' camera, a tactic that's deployed frequently by cops wishing to stay unrecorded.


These actions directly contradict the statement given by police spokeman Sgt. William Hickey.

"It is not illegal to film police in the course of their duties, as long as you are not interfering with them doing their job..."

City officers are instructed during ongoing in-service sessions that citizens are allowed to film them doing their jobs, Hickey says.

Case law has established that right, and officers should not inform a citizen otherwise, Hickey says.

"It's reasonable to expect, at any given time, anybody could be filmed," Hickey says. "There are traffic cameras, cameras at ATMs, even most of our patrol vehicles are equipped with dash cams.

"You are under surveillance no matter where you go."

Hickey's not lying about the surveillance. Lancaster is somewhat infamous for the number of surveillance cameras it has installed, which surpasses the number installed by many larger cities like San Francisco and Boston. Not only that, but the system is manned by volunteers including, at one point, someone who had been convicted of stalking, harassment and impersonating a public official.

The fact that everyone in Lancaster is "under surveillance" (from the mouth of the PD PR himself) means that the police, who "benefit" from this camera system, are the last people who should be granting themselves an "expectation of privacy" in order to wave off pesky citizens and their recording devices.

These cops backed off when the usual stuff didn't work, but there's obviously still a disconnect between the PD spokesman's calming statements and the actual attitude of the rank-and-file.

Filed Under: harassment, lancaster, police, recording police, surveillance, wiretapping

MN Judge Refuses To Throw Out Case Against Citizen Recording Police, EMS

from the one-step-forward,-two-steps-back dept

Back in January, I wrote about an exceptionally odd case in Minnesota in which a private citizen had his recording device liberated from his person by police after he recorded them patting down a bloodied man before putting him in an ambulance. What made it odd wasn’t what the police did initially, as that happens far too often these days, but in that Andrew Henderson was then charged with disorderly conduct and obstruction, with the paperwork describing what he’d done as a HIPAA violation. In case your common-sense-o-meter isn’t functioning today, that claim is bullshit, since HIPAA covers actions by healthcare providers in how they deal with patient information. In addition, the claim is at odds with another recording Henderson made of the officer that took his property, in which deputy Jacqueline Muellner claimed she was taking the device in as “evidence.” This “evidence” was subsequently deleted before Henderson’s recording device was given back to him, leading me to wonder when the case against Henderson would be tossed out to make room for one against deputy Muellner.

The answer, unfortunately, might be never. Ramsey County Judge Edward Wilson has denied Henderson’s attempt to get the case thrown out, saying that the first amendment doesn’t apply. He also refused to throw out the obstruction charge, despite the fact that the bench Henderson had been sitting on is roughly thirty feet from where the ambulance was parked.

Wilson, the judge, wrote in his order that "it is not necessary that one engage in a physical act to interfere or obstruct. It is sufficient if the defendant's actions or conduct had the effect of physically obstructing or interfering with a member of an ambulance crew."

Got it now? Obstruction doesn’t actually mean obstruction, it means either obstruction or doing something that makes professional police and EMS folk not able to do their jobs properly. This, apparently, includes recording them from thirty feet away, which puts into question exactly how many Minnesota police and EMS workers suffer from the kind of ADD my dog has when I take her on walks. I can imagine it now: EMS worker kneels in front of patient, EMS worker begins wiping away blood on patient’s face, EMS worker asks patient if he remembers his name, EMS worker cannot hear response because he’s run into heavy traffic chasing a squirrel.

And, while the disorderly conduct charge absolutely reeks of the police throwing feces at the wall to see what sticks, deputy Muellner ran away and retired to become former-deputy Muellner, with all of her benefits in place and without any formal inquiry into why she destroyed evidence so important that it was worth seizing private property.

However, while the news is all bad thus far, Henderson’s lawyers are promising to take this to trial, so we’ll just have to see if the judicial process has a bit more sense than judicial officers of the court.

Filed Under: andrew henderson, destruction of evidence, minnesota, recording police, recordings