Cities Make Public Their Accomplices In Wrongdoing By Issuing Settlements Tied To Gag Orders

from the buy-us-a-halo dept

It's not enough that lawsuit settlements for police misconduct, brutality or officer-involved-deaths come attached to "no admission of wrongdoing" statements. In far too many cases, they also come with stipulations forbidding recipients from making public statements about the lawsuit or its allegations.

When city officials here settle police-misconduct claims, they usually bar the person who alleged mistreatment from speaking publicly about the case. Violating that restriction can result in a settlement being cut in half.

The city [Baltimore] last year withheld $31,500 of one woman’s $63,000 payment after she posted messages about her case on a newspaper website, for instance.

The Wall Street Journal points out that Baltimore is somewhat unique in its use of confidentiality agreements in settlement agreements. But it is by no means the only government entity to do so. The mother of Darrien Hunt, who was killed by Utah police officers last year, recently rejected a $900,000 settlement from Saratoga Springs over the inclusion of a gag order.

"To me it was a gag order [that said], 'Here's hush money, don't ever say Darrien's name again,'" Susan Hunt, mother of Darrien, told Utah's KSL news about turning down the $900,000 settlement the city offered in response to her wrongful death lawsuit.

"My biggest concern is for the truth to be told," Susan said.

If the locality isn't interested in forcing gag orders on settlement recipients, the law enforcement agencies at the center of these lawsuits will sometimes help out by arresting plaintiffs and using pending charges as leverage against further public disclosure.

Criminal charges are commonly used to thwart the possibility of lawsuits, said attorney Marcus Sidoti, who has handled multiple civil rights lawsuits the city settled in recent years.

For instance, Judi Patrizi was arrested in 2007 and charged with obstructing official business after an officer said she impeded an assault investigation at Bounce Nightclub.

In a report, an officer described Patrizi pointing in his face and swinging her arm away from him -- an account later disproven by video surveillance at the club. The charges were later dropped and Patrizi sued the city saying she was maliciously prosecuted after the unlawful arrest. The city settled her case for $87,000.

In some cases, those who claimed police brutalized or shot them were offered plea deals that would reduce or drop charges against them only if they agreed not to sue the officers or the city -- a move some call unethical.

The Cleveland.com article lists a handful of other cases where lawsuit plaintiffs were arrested and charged with criminal activity after filing brutality complaints. In almost every case, charges were dropped or (in the one felony case) the grand jury did not return an indictment.

This sort of thing isn't strictly limited to lawsuits filed over police misconduct. These tactics also used to protect other government employees and officials from public scrutiny.

The Beecher School District [Flint, MI] paid nearly $250,000 to avoid two lawsuits over alleged sexual misconduct by a former public school administrator.

But no lawsuit was ever filed, so taxpayers did not have easy access to this information because of a state law that allows public bodies to enter into non-disclosure clauses that bar either side from discussing specifics of a case.

Unless allowed to be filed under seal, court documents are, by default, public records. The best way to keep the public from viewing public records is to create as few of them as possible -- hence the quick settlements and the accompanying gag orders. If done swiftly enough, no documents will make their way onto court dockets. Add in a bit more enforced secrecy, and even FOIA requesters won't know what to look for… or if anything even exists.

Court records are created when a lawsuit is filed and eventually dismissed, which could tip a potential FOIA user off to a settlement.

However, a keen eye may be needed to realize when a government agency agreed to a settlement with a non-disclosure clause to prevent a lawsuit from ever being filed, such as the situation in Beecher.

While confidentiality clauses are common to lawsuit settlements between private parties, the use of them in the public sphere is not nearly as acceptable. These agreements force the public to not only pay for the misdeeds of their public servants but shield them from additional scrutiny. Settlements are often offered by government agencies because it guarantees them something they'd can't obtain through a jury trial: the ability to exonerate themselves. It also heads off the chance that they'll have to hand over other incriminating information in response to discovery requests.

Nearly every lawsuit settlement contains clauses indicating that the payout is not an admission of wrongdoing. Government agencies are continually buying "innocence"... using money they've collected from citizens who have little say in how their tax money is spent. Whether it's a confidentiality agreement or a speedy settlement issued in an attempt to head off a lawsuit, the end result is the same: more secrecy, less accountability and the continued diminishing of any deterrent effect these civil suits are supposed to have.

Filed Under: cities, gag orders, police brutality, police misconduct, settlements, silence

Suspended Cop Sends Email To Department Thanking Them For The Paid Time Off

from the swiftly-voted-'Most-Punchable'-by-his-peers-and-non-peers dept

Police misconduct and abuse allegations are always greeted with defensive department statements about "thorough investigations" and "taking allegations seriously." And yet, when it's all said and done, very little has been done to prevent future abuse.

The most common outcome is a temporary reassignment. Sometimes there are suspensions, most of which are simply paid vacations. Even if a cop manages to get fired, his union will step up to try to get him his job back. In some cases, officers are allowed to resign rather than face firing -- a move that ensures vacation, sick time and pensions are paid out.

The public is supposed to take these various levels of wrist-slapping very seriously. And law enforcement officers and agencies are supposed to make sure this illusion of accountability isn't completely shattered. But one former officer of a Canadian police department has just stripped the veneer of respectability coating the law enforcement discipline process.

Back in 2011, Constable Craig Markham did all sorts of things a cop shouldn't do.

On September 28, 2011, the Appellant [Craig Markham] received a text on his personal cell phone from A.S. inquiring about her common law partner, N.C., who had just been arrested and was in police custody facing serious drug related charges. N.C. was an acquaintance of the Appellant.

The Appellant accessed the Service’s internal records system as well as CPIC and searched out information regarding N.C. He then proceeded to the cells where N.C. was being held and had a discussion with him. After leaving N.C., the Appellant phoned a mutual acquaintance of theirs, E.C., and advised him that N.C. had been arrested. The Appellant again accessed the Service’s internal records, copied the synopsis form and the occurrence report pertaining to N.C.’s arrest to his Service email account, and emailed it to his personal email account. The next day the Appellant again accessed the Service’s system to inquire about E.C. and A.S

Markham was fired for passing confidential information to a member of the public. Or, rather, the Waterloo Police Service attempted to fire him. He appealed the decision, which resulted in three years of paid suspension while he waited for his case to be heard.

Markham was finally, officially fired for these violations early last year after his case was heard. No. Wait. He resigned because the Waterloo Police Service Board gave him this option.

The Hearing Officer gave the Appellant seven days to resign or he was to be terminated from all employment with the Service. The Appellant sought a lesser penalty.

You would think that being allowed a graceful exit and three years of fully-funded free time would be payment enough. But no, Markham had to rub it in. In what has to be one of the stupidest moves ever performed by a disgraced public servant, Markham sent an email to the department's legal rep gloating about his paid time off. (via Information Liberation)

A former Waterloo Regional Police officer who was suspended with pay for three years sent an email to police thanking them for his continued salary while he sat at home, played golf, travelled and took a course to become a firefighter.

“I am very thankful and fortunate to have received such a nice gift from WRPS over the last three years. You have opened up other doors for me and have paid me to sit back and watch. What a dream come true,” Craig Markham wrote in an email on March 27 addressed to the police service’s solicitor.

Markham made over $90,000 a year pursuing his hobbies while his case was being appealed. He might have gotten away with it if he hadn't felt compelled to apprise his former department of the details of his extended vacation. Unfortunately for him, his audaciously moronic move pissed off his former boss.

Police Chief Bryan Larkin presented the letter to members of the Region of Waterloo Police Services Board at a meeting last week.

“He (Markham) mocks what is supposed to be a fair and judicial system,” Larkin said in an interview.

“It sends a bad message to the community,” Larkin said.

“More importantly, it harms and takes away from the incredible work of the 760 officers who are out there everyday putting their lives at risk.”

Larkin is completely right. And every police department that allows (or is forced to by union contracts) its misbehaving officers to take paid vacations as "punishment" for wrongdoing is making the situation worse. Markham just exposed the system for what it really is: a great way to abuse the public's trust and get paid for doing nothing.

Unbelievably, Markham is now trying to play the victim.

“I think it’s disgusting that Bryan Larkin released my email,” Markham told the meeting. “He is using me as a scapegoat.”

Whatever Larkin is using Markham for, it's the first thing he's earned in over three years. Markham claims the email was sent in a "moment of frustration," but it's rather difficult to square that with his boasts about using unearned paychecks to travel and play golf -- the total of which approaches $350,000.

But despite his email's jocular recounting of hobbies pursued and unearned money spent, Markham still maintains he's still an upstanding dude.

“I’m not the taxpayer bandit,” Markham said. “It’s not like I came in during the middle of the night with a mask on and robbed the taxpayer.”

“It just sounds like I laid on the beach and drank pina coladas for three years.”

As for the first part? No, it's actually worse. Markham robbed taxpayers behind their backs, collecting paychecks he hadn't earned while fighting to reclaim a position he didn't deserve. He abused the public's trust and spent more than three years taking their money in exchange for nothing at all.

As for the last?

I can't think of anyone else to blame for what this "sounds like." If Markham doesn't like being misrepresented by his own words, maybe he should have chosen them more carefully.

The only silver lining (beyond a possible overhaul of disciplinary policies in Waterloo) is the fact that only the province of Ontario allows its law enforcement officers to collect paychecks while suspended. If Markham had done the same thing anywhere else, he might have actually felt the sting of accountability. But he did it in Waterloo and managed to continue abusing the public's trust even after exiting the field of public service.

Filed Under: craig markham, paid time off, police, police misconduct, suspension

Maryland Court Says Police Misconduct Files Can Be Withheld From The Public

from the do-whatever-you-want,-the-public's-never-going-to-find-out dept

A bad ruling has been handed down that will make it much more difficult for the Maryland citizens to find out the extent of misconduct performed by public employees. The court there is nodding to an expectation of privacy that really shouldn't exist in the public sphere and, in doing so, has provided that much more obscuring darkness for badly-behaving cops.

The Maryland appeals court has ruled that police departments' internal investigation documents are "personnel files" and thus exempt from public records requests. The decision came in response to a lawsuit filed by the ACLU on behalf of Taleta Dashiell, who was seeking a copy of documents related to her own sustained complaint against Sgt. John Maiello of the Maryland State Police.

Contributing to this bad decision is a handful of "extra rights" that have been granted to the state's law enforcement officers.

After the Court of Special Appeals determined that the Circuit Court erred by not requiring the State Police to create an index of the withheld documents and by not conducting an in camera review of the documents, the State filed a writ of certiorari asking us to consider the following question:

Did the Department of State Police properly invoke the Maryland Public Information Act’s (MPIA) exemptions for personnel records and records that are confidential under other law — here the Law Enforcement Officers’ Bill of Rights — to deny a request for the internal affairs records of an investigation into the conduct of a specifically identified state trooper?

Maryland, unfortunately, is somewhat of a pioneer in giving certain public servants more rights than other public servants, and more rights than the public itself, the latter of which has the dubious privilege of paying the salaries of these "more equal" police officers.

Maryland was the first state to pass a LEOBR, in 1972, and by now many states have followed, invariably after lobbying from police unions and associations. Often the bills are sponsored by Republicans, who seem to forget their normal skepticism of public employees as an interest group when uniformed services are involved.

Among other things, the LEOBR grants police officers the "right" to have up to 10 days to respond to misconduct allegations and to be able to appoint a lawyer of their choosing to represent them in what is normally just an employer-employee interaction anywhere else in the working world.

Dashiell was attempting to obtain documents related to her complaint against Officer Maiello, who was captured on her voicemail referring to her (twice) as a "nigger." From that point forward, the Maryland State Police did everything it could to keep her from seeing anything related to Maiello or her complaint.

Supposedly, the state provides an exception to the personnel records exception in the case of the "person of interest" -- which should have covered Dashiell's request. Despite existence of such records being confirmed by a letter from the MSP to Dashiell, the department refused to turn over the requested files. The MSP was creative in its stonewalling of Dashiell's request, treating the retirement of the officer charged with fulfilling requests as the end of the line for this inquiry.

The MSP returned the March 2, 2010 MPIA request to the ACLU stamped “addressee unknown.” Apparently, unbeknownst to Ms. Dashiell and the ACLU at the time the MPIA request was sent, Lieutenant Colonel Fischer had retired from the MSP.

The MSP returned the MPIA request, failing to even identify the new custodian, rather than deliver it to the current custodian of records.

Dashiell sent a new request to the new custodian of records, which was denied in its entirety -- including her request for, if nothing else, an index of the records held.

The lower court granted the MSP summary judgment, claiming the files requested were exempt from disclosure, even considering Dashiell's "person of interest" status. She appealed, but the appeals court has now arrived at the same conclusion.

The court's opinion says that the law is law, no matter how stupid under these specific circumstances. The sustained complaint is treated no differently than an unsustained complaint and no matter how much information has been made public already, the officer's privacy trumps the public's interest. The court strains credulity by suggesting the release of such information would negatively affect future misconduct investigations.

The plain language of the Public Information Act, also, does not differentiate between “sustained” and “unsustained” complaints. A determination that a sustained finding requires disclosure of personnel information, though, would affect all public employees, not only the police force. Further, mandatory disclosure of personnel information related to sustained findings could chill the disciplinary process, rendering those in control less willing to sustain a finding of misconduct.

It is insane that the court would actually believe that the public has the power to actually "chill" any government action. The state's laws -- combined with the Bill of Rights extended to police officers only -- create their own chilling effect. Police officers know that it's highly unlikely any record of their misconduct will ever reach the eyes of the public, which creates an incentive for future abuse. This has a chilling effect on citizens, who know that it's highly unlikely any officer will receive significant discipline for wrongdoing, as the entire process is allowed -- by law -- to be conducted in total darkness.

The court also points out that it agrees with lower courts' findings: despite Dashiell being the one to file the complaint, she is not the "person of interest." Officer Maiello is. So if anyone is ever going to make records of police misconduct complaints public, it can only be the officer against whom the complaint was filed. Which means this will NEVER HAPPEN.

Two judges offered their dissenting opinion, pointing out that the majority expressly dodged a question crucial to the determination of whether these files should be eligible for "personnel information" protection. There's a difference between "unsustained" and "sustained," and the court has chosen bypass this delineation and defer to the law's wording instead.

This result is far different from the circumstance of permitting unsubstantiated allegations of a complaint to be made public. In sustaining a complaint against one of its officers, a law enforcement agency acknowledges the truth of the very facts that “directly pertain to employment and [the officer]’s ability to perform [his or her] job.”

In contrast to such facts, the discipline that the law enforcement agency decides to administer to the officer does not directly pertain to employment or the officer’s ability to perform his or her job. Plainly put, the officer did what the officer did, regardless of how the law enforcement agency decided to respond. The administration of the discipline is an action of—and thus reflects the judgment of—the law enforcement agency, not the officer. Thus, a record of discipline based on a sustained complaint against a law enforcement officer is not a personnel record; instead, it is among the very types of document that the Public Information Act is designed to make available to the public: a document that reflects how a public agency responds to an employee’s proven misconduct.

This is how it should be. But it isn't. The state law allows misconduct to go unexamined and grants public employees a privacy expectation in their publicly-funded employment that simply shouldn't exist. Even records related to unsustained complaints are of value in terms of accountability, but at the very least, records of sustained complaints should be excluded from the law's personnel records exemption.

Filed Under: court, maryland, police, police misconduct, public

Putting Body Cameras On Cops Won't Fix Misconduct, But It's A Good Start

from the the-other-option-is-business-as-usual,-which-is-completely-unacceptable dept

Prompted by the fatal shooting of Ferguson resident Mike Brown, a We the People petition asking the federal government to require body cameras for all law enforcement officers has roared past the 100,000 signature threshold required for a White House response. (Theoretically.)

The petition asks for the creation of the "Mike Brown Law," which would mandate the use of body cameras and ensure agencies are supplied with funding needed to comply. The usual caveat about bad laws being named after deceased persons aside, the use of body cameras by police officers is nearing inevitability, what with police misconduct now being a mainstream media topic.

It's not a complete solution, but it is a very valuable addition. Dash cams, which have been in use for years, only capture a small percentage of interactions with civilians. While the use of body cameras will prompt new privacy concerns, the presence of the unblinking eye has been shown to make both police and the public behave better.

The problems with body cameras are both human and technological. Currently, almost every camera system is controlled by police officers. Guidance on what does and doesn't need to be recorded isn't always clear. What may seem to be a deliberate effort to conceal something may just be an actual malfunction. And, like any other system meant to create greater accountability, it can be gamed.

In New Orleans, Armand Bennet, 26, was shot in the forehead during a traffic stop by New Orleans police officer Lisa Lewis. However, the police department did not reveal until much later that Lewis turned off her body camera just before shooting Bennett. Bennett survived and has now been charged under prior warrants for his arrest. It also reviewed that Lewis had had a prior run in with Bennet who escaped about a week earlier.

At first glance, it has all the appearance of a deliberate coverup. But there could be dozens of legitimate reasons this encounter wasn't recorded.

The obvious reaction is that she turned it off to conceal the fact that she was about to plug Bennet in the forehead in a moment, and had the presence to do so without creating a conclusive record. But we easily see that because of what happened afterward. Post hoc rationalizations are easily deconstructed.

Perhaps she turned it off when she thought the confrontation was over. Perhaps she turned it off by accident. Perhaps she desperately wishes now she had kept it on, to prove Bennet took some action to justify her shooting him in the forehead. Or, as appears most likely, perhaps she turned it off so that there would be no video of what she was about to do.

This solution won't -- and can't -- solve everything. Beyond the actions of police officers, there's the technology itself, which is far from perfect. Unfortunately, efforts to improve are being hamstrung by those most resistant to police officers being watched.

When an officer presses record, the camera saves the 30 seconds of images that led up to that moment, but not the audio. The manufacturer designed the buffer to protect the privacy of police officers — and to appeal to resistant police unions — but it also means the cameras may miss crucial noises or words that trigger an incident.

Even a more-complete version of the events (compared to gathering eyewitness statements and weighing those against police reports) may still be missing crucial evidence, thanks to the efforts of police unions. As we've noted here earlier, legislators and government officials are becoming more receptive to the use of body cameras. Those raising the loudest objections are the erstwhile mouthpieces of the officers themselves.

The mayor of Miami-Dade sees the potential benefits of body cameras.

Miami-Dade Mayor Carlos Giménez is calling for hundreds of the county's police officers to be equipped with video cameras, weeks after after a police involved shooting in the Midwest triggered days of violence.

As national outrage about alleged police misconduct in Ferguson, Mo. continues, Giménez is pushing to make body cameras mandatory for all county patrol officers. His proposed budget is calling for 500 cameras, which would cover about half of Miami-Dade's patrol force.

"The body cam is a way to assure that there's confidence in the police department, that if they had been wearing a body cam, say, in the incident that happened in Missouri, there would be no debate as to what exactly happened," said Giménez...

Next year's Miami-Dade County budget calls for $1 million for the body cameras, with an additional $400,000 in operating cost and for the data storage required.

But Miami-Dade's police union wants none of it.

In a written grievance filed with the county’s police chief, a union lawyer wrote that wearing the cameras “will distract officers from their duties, and hamper their ability to act and react in dangerous situations …”

The one-button operation of most cameras would seem to be something most officers will swiftly become accustomed to, rather than the huge impediment the police union portrays it as. But according to the union, nearly anything at all -- even a quick tap of the "RECORD" button -- could mean the difference between life and death (of police officers, that is…).

[T]he Miami-Dade police union [also] cited the distraction caused by officers having to activate the camera before approaching a traffic stop or potential arrest. “As anyone with knowledge of police training and tactics knows, if an officer hesitates for even a second in a life threatening situation, it can cost that officer his or her life, and/or put the lives of others at risk,” the complaint reads.

I don't think anyone believes this hyperbole, not even the unions themselves. The only reason they're against body cameras is because they firmly believe police officers shouldn't be held accountable for their misconduct. They completely ignore the results shown by law enforcement agencies that have put body cameras into use -- that they reduce both the use of excessive force and allegations of police misconduct.

Body cameras aren't a cure-all, but they're much more beneficial than resistant police officers and unions give them credit for. It's the direction our nation's law enforcement agencies need to be headed. It's ridiculous that we're still almost wholly reliant on something as malleable as police statements and eyewitness interviews. A camera isn't completely neutral, but it's a hell of a lot better than what we're normally given to work with.

Filed Under: accountability, body cameras, police, police misconduct, privacy

Chicago Court Rules Police Misconduct Records Must Be Made Publicly Available

from the it's-called-oversight,-and-if-the-cops-won't-do-it,-the-public-will dept

The insularity of law enforcement -- the secrecy and opacity that allows misbehaving officers to escape being held responsible for their actions -- has been partially stripped away in Chicago. The city's appellate court has delivered a decision that puts police misconduct records into the hands of the public.

Citizen complaints about Chicago police misconduct and the related investigative files are public records and must be turned over by the city, an Illinois appeals court ruled this week.

A three-judge panel of the state Appellate Court in Chicago rejected the city's claim that such files are exempt from the Illinois Freedom of Information Act.

The fact that investigative files are now public records is a big win for public oversight. Internal investigation documents have often been withheld by law enforcement agencies, many of whom seem completely uninterested in opening up their departments to additional scrutiny. Additionally, the city's appellate court has severely limited the use of existing exemptions to deny requests for police misconduct files.

City lawyers argued such records were covered by an exemption in the state's Freedom of Information law for "preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated."

The judges wrote that exemption only applies to "opinions that public officials form while creating government policy. It does not protect factual material or final agency decisions."

There's still a bit of a loophole left for the Chicago PD to exploit, however.

If a complaint results in disciplinary charges against an officer, records from that process may still be kept secret, the appellate court noted.

From what information is out there, it's unclear whether this exception applies to only documents directly related to the disciplinary process or whether it exempts everything related to the case from public records. In either case (though certainly more damaging to oversight in the latter), this exemption gives back a little opacity to misbehaving cops.

On the plus side, this new ruling allows for easier tracking of Chicago police misconduct.

The appeals court also found that "RL" files are open to the public. Those files identify police officers who have accumulated the most misconduct complaints. At issue were two RL files that named officers with the most complaints between 2001-2006 and 2002-2008.

This transparency is something the city of Chicago sorely needs.

A study by University of Chicago professor Craig Futterman found that just 19 of 10,149 complaints accusing CPD officers of excessive force, illegal searches, racial abuse, sexual abuse, and false arrests led to a police suspension of a week or more. In more than 85 percent of internal investigations of complaints, the accused officer was never even interviewed.

If the Chicago PD decides to return to business as usual in terms of responding to misconduct complaints, it will no longer be able to hide its inactivity behind expansive FOI exceptions. And if officers realize they're creating easily accessible public records every time someone files a complaint, they're bound to exercise a bit more discretion while on-duty.

Filed Under: chicago, police misconduct, public information, records

New Hampshire Police Charge Man With 'Wiretapping' Because He Made A Phone Call During Traffic Stop

from the you-can't-be-serious dept

We've covered the disturbing trend of police, prosecutors and the courts to abuse wiretapping laws to charge people with "wiretapping" for recording police in public. The latest such case is even more ridiculous than most. Found via Slashdot, it involves a guy charged with wiretapping the police during a routine traffic stop, because he made a phone call, to which a voicemail system recorded the call at the other end. The guy who was arrested, William Alleman, had just left a gathering of libertarians, meeting in support of an arrest of a local restaurant owner. The police were apparently waiting outside, and Alleman claims he was followed. As he got pulled over, he called the phone number of an answering service for Libertarian activists who are "in trouble with the police" and then used that to record the call. The police claim this was illegal wiretapping.

This is, of course, patently ridiculous. Recording a police officer as he has stopped you is not and should never be considered a crime. The police in Weare New Hampshire should be ashamed of themselves for flagrantly abusing the law to intimidate people from exercising their own rights. All the more reason for laws like the one proposed in Connecticut that would punish police for preventing people from recording their interactions with the police in public.

Filed Under: abuse, police misconduct, wiretapping

Police And Courts Regularly Abusing Wiretapping Laws To Arrest People For Filming Cops Misbehaving In Public Places

from the to-protect-and-serve? dept

Back in April, we wrote about the case of a motorcyclist in Maryland who was wearing a helmet-mounted camera while riding his motorcycle (admittedly, above the speed limit). As he stopped at a traffic light, an off-duty police-officer in plain clothes and an unmarked car jumped out of his car with his gun drawn. All of this was caught on video. No matter what you think of the cop's reaction, what happened later is ridiculous: after the biker, Anthony John Graber III, posted the video from his helmet cam to YouTube, he was arrested for illegal wiretapping, based on Maryland's two-party consent rule for recording. As we explained at the time, wiretapping laws that require all parties to consent were not, at all, designed for this type of situation.

However, apparently this sort of thing is becoming all too common -- and stunningly, many courts are siding with the cops. Gizmodo recently had a good article highlighting how police in states that require all parties to consent to recordings have been using this law against being videotaped in public, and the courts are siding with them. What's really scary is that most of those laws even have clearly written exceptions for recording in public places "where no expectation of privacy" exists.

Yet, the police and the courts both seem to ignore that part of those laws:

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.

That last sentence is the real problem here. Two-party consent laws were clearly designed to be used in situations where someone was being recorded privately -- such as over a phone call, or in a private conversation. When police are doing things (especially questionable activities) out in public, we should be encouraging the public to record those incidents and report them. The laws are being abused to try to stop people from whistleblowing on bad behavior by police. That has nothing to do with the purpose of two-party consent laws. It's really scary that the courts didn't immediately throw out these cases.

Filed Under: abuse, police misconduct, wiretapping

Utah Law Proposed To Hide Police Misconduct So It Doesn't Get On YouTube

from the blame-the-victim dept

It's really fairly amazing to see how people react when bad activities are brought to light. A few times now, we've seen stories of students who were able to film inappropriate activity from teachers or principals with their mobile phones. Rather than recognizing the activity as whistleblowing, the schools in question responded by banning mobile phones. In other words, rather than fix the problem, the schools chose to cover it up so future problems wouldn't get exposed. It appears something along those lines may be happening on a larger scale in the state of Utah. After a video showing questionable police activity involving a taser showed up on YouTube, state senator Chris Buttars has introduced legislation that would allow police to withhold any reports concerning police misconduct from the public (found via Digg). That's because the whole reason the taser video made it to YouTube was because the victim filed a Freedom of Information Act request for it. So now, rather than deal with stopping police misconduct, it appears supporters of this legislation would simply prefer that no one knows about it. It might be worth noting that this comes at about the same time as new reports of a police officer suspended for inappropriate activity -- which was brought to light via YouTube.

Filed Under: police misconduct, utah, videos, youtube