DC Court Dumps Police Union's Attempt To Block Release Of Recordings, Officers' Names Following Police Shootings

from the maybe-just-shoot-fewer-people-if-this-transparency-is-such-a-problem dept

Last year, a number of police reforms were passed by the city of Washington, DC. These efforts angered the Fraternal Order of Police -- which represents a number of DC Metro police officers -- enough for it to sue. It sued over two reforms in particular: the release of police recordings (body cam or otherwise) and the names of officers involved in shootings of residents.

The FOP insisted this was a bad idea. According to the union, releasing this information would place officers in danger. The FOP speculated making officers' names public would subject them to humiliation, possible armed retribution by city residents, and make it ever so slightly more difficult for them to be employed by other law enforcement agencies.

It also suggested releasing footage would violate the privacy rights of citizens, including victims and witnesses at the scene. And it insisted the entire thing reeked of due process violations, since there was a chance (probably a pretty good one) that officers would be cleared of any wrongdoing.

Well, the court has rejected all of the FOP's arguments and Metro PD officers are going to have to get used to the new level of transparency that now surrounds their use of deadly force. The court likes exactly zero of the FOP's arguments. First, the court [PDF] points out the police union has no standing to bring this suit, no matter which version of standing it attempts to use.

Speculating that the FOP will be involved in more defense of officers accused of wrongdoing following use-of-force incidents isn't an injury the court's willing to recognize. (And it's unclear how releasing footage and names would result in more litigation or internal investigations.)

Simply stating that more resources will be expended is insufficient because the passing of the Temporary Act did not prevent the plaintiffs from performing tasks or actions that they previously could prior the Temporary Act.

[...]

Further, plaintiff’s alleged future injuries are too speculative to establish organizational standing. The plaintiff alleges that it will have to expended resources to challenge improper transfers of Detectives, but as the defendants pointed out, such an allegation is based a series of potential future events. It is not concrete or imminent injury when the allegations involve a chain of events that essentially start from the Mayor’s release of the footage, to less witnesses willing to testify, to a more difficult investigation, to a lower closure rate, to potential transfers or disciplinary action, and then to plaintiff’s decision whether to represent the officer, assuming that the officer is one of plaintiff’s members. [...] Therefore, plaintiff’s pure speculation about potential future harm is insufficient to establish organizational standing.

The court says the FOP also can't sue because it feels release of footage will infringe on the privacy rights of residents who aren't cops.

In the Complaint, the plaintiff alleges that the Temporary Act will infringe on the rights of citizens of the District, such as infringing on their privacy rights. However, it is unclear how the plaintiff can establish a close relationship with every member of the general public who are not members of the plaintiff’s organization. Furthermore, there is no allegation of any “hindrance” to the ability of the public to protect their own interests.

There's no associational standing either.

In the Amended Complaint, the plaintiff alleges that the release of the camera footage and names of officers will result in “unjust reputational harm, result in “immediate risk of a significant bodily harm,” and lead to “psychological trauma” to an officer and his/her family. However, these allegations are purely speculation and conclusory allegations that the Court has no obligation to accept under the relevant standards. The pure possibility that something might happen does not constitute an injury.

In addition, there's nothing connecting this speculation to the actions of the city government, which passed the order governing the release of footage and names.

Further, the Amended Complaint also fails to allege how any alleged injuries can be “fairly traceable” to the defendant’s actions. The defendants are not in control of public opinion and cannot be held responsible if a citizen or citizens criticizes or condemns an officer’s use of force in a particular incident.

The court saves the best for last in this dismissal. It dispenses with the union's due process violation allegations by pointing out there's no difference between the officers' body cameras and cameras operated by citizens. You can't say one is protected speech but the other somehow violates the privacy rights of police officers.

In Count II, the plaintiffs contend that Subtitle B of the Temporary Act “violates the fundamental right to privacy held by D.C. Police Union members.” Specifically, the immediate public release of names of officers and body-worn camera footage “will allow criminal suspects and their associates to identify the officer and potentially seek retribution.” First and foremost, there is “no authority that the Constitution imposes on the government an affirmative duty—untethered to specific constitutional provisions such as the First Amendment—to ‘safeguard personal information’ from the criminal acts of third parties.”

Importantly, as the defendants mentioned, MPD policy explicitly states that members of the general public have a First Amendment right to record MPD members during official business, unless they interfere with police activity. See MPD General Order 304-19 at § 1. If the public is legally able to record officers during official business, it is unclear how any reasonable officer can assume that they have the right to privacy when conducting said official business.

The lawsuit is dismissed. Presumably this will be appealed, but even when given two chances to fill a lawsuit with actionable claims and firmly establish standing, the FOP failed. Once this is appealed, it's stuck with the arguments that have already failed once. It should probably save its time and money for future Hail Mary litigation in the event of impending release of footage and names.

Filed Under: body cameras, dc metro police, fraternal order of police, police, police recordings, police unions, transparency

Latest Anti-Accountability Move By Cops Involves Playing Music While Being Recorded In Hopes Of Triggering Copyright Takedowns

from the twist-I-did-not-see-coming dept

Cops tend to dislike being recorded. They don't care much for their own recording devices. They routinely disable equipment or conveniently "forget" to activate body cameras.

And they dislike the recording devices everyone carries with them at all times: cellphones. Cellphone ubiquity means it's almost impossible for cops to prevent an incident or interaction from being recorded. Add these devices to the steadily-increasing deployment of internet-connected security cameras and there's really nowhere to hide anymore.

Simply shutting down recordings or arresting citizens for pointing cameras at them is a very risky option. There's tons of case law on the books that says recording public officials is protected First Amendment activity. So, cops are getting creative. Some of the less creative efforts include shining bright flashlights at people holding cameras in hopes of ruining any footage collected. Sometimes officers just stand directly in front of people who are recording to block their view of searches or arrests taking place. Often the excuse is "crowd control," when it's actually just an attempt at narrative control.

Now, here's the latest twist: cops have figured out a way to prevent recordings from being streamed or uploaded to social media services or video platforms like YouTube. Believe it or not, it involves a particularly pernicious abuse of intellectual property protections.

Sennett Devermont was at the [Beverly Hills police] department to file a form to obtain body camera footage from an incident in which he received a ticket he felt was unfair. Devermont also happens to be a well-known LA area activist, who regularly live-streams protests and interactions with the police to his more than 300,000 followers on Instagram.

So, he streamed this visit as well—and that’s when things got weird.

In a video posted on his Instagram account, we see a mostly cordial conversation between Devermont and BHPD Sgt. Billy Fair turn a corner when Fair becomes upset that Devermont is live-streaming the interaction, including showing work contact information for another officer. Fair asks how many people are watching, to which Devermont replies, “Enough.”

Fair then stops answering questions, pulls out his phone, and starts silently swiping around—and that’s when the ska music starts playing.

Fair boosts the volume, and continues staring at his phone. For nearly a full minute, Fair is silent, and only starts speaking after we’re a good way through Sublime’s “Santeria.”

That's the angle: copyright infringement. By loading up someone else's recording with copyrighted music, officers like this one can nuke a livestream as it's happening or, at the very least, get the user loaded up on copyright strikes once the AI has scanned the recording. (If they really wanted to be evil, the officer could also file a bogus DMCA notice targeting the recording.)

Sure, it's not guaranteed to destroy a recording, but it's a great way to ruin one even if the copyright bots don't decide it's infringement. As Dexter Thomas points out at Vice, Instagram's rules allow for incidental music that happens to be in a video, rather than the primary purpose of the video. But that allowance isn't available on all platforms, so cops like this jerk are more than happy to roll the IP dice and hope for the best. And there's no guarantee the AI running copyright patrol on Instagram won't decide a cop's personal jukebox outweighs the non-infringement surrounding it.

This isn't the only time this has happened to Devermont. Another officer pulled out the IP big guns during an interaction with him.

By the time Devermont is close enough to speak to him, the officer’s phone is already blasting “In My Life” by the Beatles — a group whose rightsholders have notoriously sued Apple numerous times.

Now that this is in the news, we can expect it to pop up elsewhere. There are a lot of officers out there not nearly as creative as these two Beverly Hills cops, but who will be willing to follow the bad example they're setting. If nothing else, it will ruin recordings by filling them with the tinny tone of cellphone-blasted tunes. At worst, it will lead to a cascade of copyright strikes that will see these cop accountability activists banished from popular platforms.

Filed Under: beverly hills police, copyright, police, police recordings, sennett devermont, transparency

'Officer Awareness' Memo: Police Accountability Recording App Could Lead To Dangerous 'Flash Mobs'

from the and-they'll-be-armed-with-cameras!!! dept

Your law enforcement panic of the day: an app that automatically uploads recorded footage and forwards it to the ACLU. (h/t to Dave Maass.)

New Jersey's ACLU branch put together "Police Tape" back in 2012, an app which allowed anyone to record cops with a press of a button. The app then hid itself while the recording continued. If the recording was interrupted, the app would automatically send the recording to the ACLU. The app also advised those confronted by cops of their rights in various situations.

The app is apparently no longer available, but ACLU-NJ reported 30,000 downloads within the first few months of its availability. Widespread coverage of this police accountability app led to a somewhat overwrought response from (of all places) the Burbank, California Police Department.

"OFFICER AWARENESS," the bulletin yells, before heading into a brief summation of the app's capabilities. It takes a turn for the truly absurd when Lt. Eric Deroian attempts to portray the app as potentially dangerous to officers.

Both apps [including the "stop and frisk" app developed by ACLU-NY] will notify other app users within a defined area if someone has activated their app, with the exact location of the police action. This may result in officer safety issues if community groups are able to pinpoint various police actions, and respond to the location in the form of a flash mob.

First off, let's deal with the why of this app's existence. It is only because officers have routinely (and illegally) confiscated, shut down or deleted recordings from civilians' cell phones that an automatic archival process is needed. Despite being told repeatedly by judges, the DOJ and their own internal policies that citizens have the right to record police officers in public areas, many cops still seem to believe this isn't actually a right but a privilege completely subject to any recorded officer's willingness to oblige.

Because cops doing bad things hate to be held accountable for their actions, they often turn on those recording their actions. And because officers have power, weapons and the benefit of a doubt eternally on their side, it's usually pretty easy to shut down recordings. The tide is slowly turning, but civilians are still severely limited in their options when confronted by a cop who doesn't want to be recorded.

That's why apps like these even exist, and cops have only themselves to blame for this situation.

Now, let's address the inadvertent hilarity of the "flash mob" claim. Even if there were enough people with the app installed in the area, it's highly unlikely a coordinated (and apparently threatening) response would be mounted. The thing about successful flash mobs is that they're usually coordinated ahead of time. The best ones are, anyway. There are some that gel unexpectedly, but flash mobs usually require participants to be at least a little prepared.

Being suddenly alerted about some unexpected police bullshittery isn't generally going to provoke anything more than additional cameras and angry voices. I've seen tons of police video captured by citizens and I have yet to see crowds physically attack officers no matter how much of a beatdown they're putting on some unlucky individual. A lot of yelling and swearing? Yeah. But nothing more "threatening" than that. Even when a cop is choking the life out of someone, everyone stands a few feet away and hurls nothing more dangerous than epithets and criticism.

Here's the other thing: You know who else can "notify [others] in their area" and "pinpoint various police actions?" Cops. And their "flash mobs" usually arrive at high speed with sirens blaring, and armed to the teeth with a variety of lethal (and slightly less-lethal, depending on application) weapons. This "mob" has the force of law behind it, as well as a large number of options citizens don't have -- like departments and unions willing to justify nearly any amount of misconduct, as well as various levels of legal immunity should the "police action" result in a civil lawsuit. They'll also be acting out of "fear for their safety," so the occasional kidney punch/emptied gun magazine will be almost instantly forgiven. All the unfriendly citizen flash mob has is… well, their voices and their cameras. Nothing like bringing a Galaxy 4 to a gun/Taser fight.

Bottom line: there's nothing to fear from police accountability apps like these except the accountability. This is what Lt. Deroian's warning is really about. He closes it by noting that a "suspect" had the app installed on his phone, but leaves the details of this person's crime wholly up to the overactive imaginations of the officers reading this "alert."

A better "Officer Awareness" memo might have addressed the fact that citizens have a right to record and that patrolling OFFICERS should be AWARE their actions have a good chance of being recorded, so try not to violate too many rights/beat down too many "suspects." And be careful out there.

Filed Under: flash mobs, lapd, new jersey, police, police recordings, police tape
Companies: aclu