July 27, 2011 AlterNet
More and more people use their smartphones to record police misconduct.
But laws against wiretapping are being used to intimidate and stop them.
July 27, 2011 |
Over Memorial Day weekend this past May, residents of Miami Beach
witnessed a horrific display of police brutality as 12 cops sprayed
Raymond Herisse's car with 100 bullets, killing him. The shooting provoked
outrage in the surrounding community, not only because of the murder, but
because of what the police did afterward.
Officers on the scene confiscated and smashed witnesses' cell phones;
later, when they were confronted by the media, the police denied trying to
destroy videos of the incident.
But 35-year-old Narces Benoit removed his HTC EVO’s SIM card and hid it in
his mouth. He later sold the video to CNN, placing the police in the
awkward position of explaining why they lied about allegations of cell
phone destruction. More importantly, the video showed at least two
officers pointing guns at Benoit, demanding that he stop filming.
Police brutality takes many forms around the country on a regular basis,
particularly in poor and minority neighborhoods. Sometimes, the only
method of accountability is a victim’s word (if they are still alive)
against that of an officer. Unsurprisingly, the police officer’s version
of the story is often adequate for a judge to dismiss allegations of
wrongdoing, unless there is hard evidence of misconduct, such as a video
or audio recording, which can be useful to unravel conflicting versions of
police-citizen encounters.
Due to advancements in technology, the average citizen carries a digital
camera in his or her pocket or purse, creating a potential army of amateur
videographers on every street corner. A quick YouTube search of "police
brutality" lists endless videos, often cell phone footage, of what appear
to be police acting with unnecessary and violent force. Some of those
videos have served a crucial role in bringing charges against brutality
that may have gone unaddressed had it not been for bystanders recording.
One would think the fear of videographers on every block would be a
powerful deterrent to police misconduct. However, legislatures are not
taking this newfound power against police abuse lightly. In at least three
states, it is illegal to record any on-duty police officer, even if the
encounter involves you and may be necessary to your defense, and even if
the recording is on a public street where no expectation of privacy
exists. The legal justification is usually based on the warped
interpretation of existing wiretapping or eavesdropping laws with statutes
against obstructing law enforcement sometimes cited.
Illinois, Massachusetts and Maryland are among the 12 states where all
parties must consent for a recording to be legal. Since the police do not
consent, the camera-wielder can be arrested and charged with a felony.
Most all-party consent states (except Illinois and Massachusetts) include
a "privacy provision" that says a violation occurs only when the offended
party has a reasonable expectation that the conversation is private. This
is meant to protect TV news crews and people who record public meetings —
where it is obvious to all that recording is underway — from accidentally
committing a felony.
Massachusetts and Illinois are the only states that do not recognize an
expectation-to-privacy provision to their all-party consent laws. While
courts in Massachusetts have generally held that secretly recording police
is illegal, recording them openly is not. Illinois, on the other hand, is
the only state where the legislature specifically amended the state's
wiretapping law to make it illegal to record on-duty police officers
without their consent, even in public.
Cases Keep Piling Up
Recording on-duty police officers has gained momentum in states around the
country for some time now. But it's only in the last few years, after
several high-profile incidents, that the topic has begun to generate
nationwide headlines and debate.
Two of these incidents occurred in Maryland last year, just weeks apart.
One involved Jack McKenna, who was arrested by Prince George's county
police last March and charged with assault and resisting arrest when he
was out celebrating the University of Maryland basketball victory over
Duke. Fortunately for him, his fellow Terps fans happened to record the
encounter on their cell phones, showing riot police throwing McKenna
against a wall and beating him with batons. Once the videos appeared on
the Internet, Prince George's County suspended the officers and dropped
the charges against McKenna.
The second incident took place last April, when Maryland State Trooper
David Uhler pulled over Anthony Graber for speeding and reckless driving.
Graber had swerved across several lanes and did at least one wheelie on
his motorcycle while driving 80mph. Graber had a video camera mounted to
his motorcycle helmet that was recording at the time of the stop, and
captured footage of Uhler, dressed in plainclothes while yelling with his
gun in hand.
Although Graber was only given a traffic ticket, he posted the video on
YouTube to publicize Uhler's threatening behavior. Maryland State police
responded by raiding Graber's home, confiscating his computer and charging
him with two felonies. One was for violating Maryland's wiretapping law by
recording a trooper without his consent, and the other was for "possession
of an intercept device," a provision intended for bugs and wiretaps but in
this case referred to Graber's video camera. As a result, Graber faced up
to 16 years in prison for recording a police officer during a public
traffic stop.
Graber's case was ultimately dismissed, as are almost all of these cases,
on the grounds that on-duty cops have no such expectation of privacy,
which is in accordance with every court in the country that has considered
the issue. Because there is no legal justification, the charges are
usually dropped or never filed at all. But that doesn't stop the arrests.
Radley Balko points out that, more often than not, police arrest
photographers for obstructing law enforcement even in states that have no
wiretapping law:
“In addition to arresting citizens with cameras for wiretapping,
police can use vaguer catch-all charges, such as interfering with a
police officer, refusing to obey a lawful order, or obstructing an
arrest or police action. Such arrests are far more common. Even more
frequent are incidents where police don’t make arrests but illegally
confiscate cameras, delete photos and videos, or incorrectly warn
camera-wielding citizens that they aren’t allowed to film.”
One such encounter took place earlier this year, when a California man,
who recorded a police officer arresting someone at gunpoint down the
street, found himself handcuffed as well. Lonell Duchine was videotaping
the arrest on his cell phone from inside his garage, when an officer
pulled up to his home and demanded the phone for evidence. Duchine
refused, so the police officer arrested him, citing “police interference”
for withholding evidence.
While illegal confiscation happens in a range of scenarios, from traffic
stops to people's homes, the most famous example was on New Year’s day
2009, when Bay Area Rapid Transit (BART) Officer Johannes Mehserle shot
21-year-old Oscar Grant at point-blank range, as he lay face down in an
Oakland subway station, allegedly resisting arrest. The incident captured
the nation's attention not simply because an unarmed black man was
publicly killed by a white police officer, but also because dozens of
onlookers captured it on their cell phones for the world to see.
In California, police are not permitted to confiscate a phone unless the
phone was used in a crime. Nonetheless, after the incident BART police
attempted to confiscate the phones of subway riders, and even chased one
camera-wielder onto a subway car. Had a bystander not been equipped with
his cell phone, charges may not have been brought against Mehserle,
demonstrating the crucial role video recording can play in accountability.
Since then there have been multiple incidents of police brutality recorded
by cell phones, which may have otherwise gone unaddressed.
The most pernicious prosecutions to date have taken place in Illinois,
where the sentence for recording a police officer is considered a class 1
felony — on par with a rape charge — and can land a person behind bars for
more than a decade.
Tiawonda Moore from Chicago, Illinois, faces up to 15 years in prison for
using her Blackberry to record two Internal Affairs investigators who
spoke to her inside police headquarters. She was there last August to file
a sexual harassment complaint against another officer, who she alleges had
fondled her and left his personal telephone number when he was at her home
investigating a domestic dispute. She says the police department actively
discouraged her from filing a report, so out of frustration, she began to
record the conversations on her phone. Although the case initially
received national media coverage, attention has since died down as
21-year-old Moore awaits a trial date that continues to be pushed back.
Michael Allison is another Illinois resident facing the wrath of the
eavesdropping law. The 41-year-old mechanic from Bridgeport faces four
counts of violating the eavesdropping law, which adds up to a possible
75-year sentence. Allison believed the local police were harassing him in
retaliation for a lawsuit he'd filed against the city over a local zoning
ordinance, so he began to record his conversations with them.
Allison was eventually charged with violating the zoning ordinance. When
he was told there would be no record of his trial, he informed court
officials that he would record his trial with a digital recorder. This
prompted the judge to have him arrested on the day of his trial, for
violating her right to privacy. After confiscating Allison's digital
recorder, the police found the recordings between Allison and the cops.
Christopher Drew, a 60-year-old artist and teacher, is also being
prosecuted for violating the eavesdropping law. Drew was arrested in
December 2009 for selling art without a permit on the streets of Chicago.
He recorded his arrest, and now faces four to 15 years for documenting the
incident.
These are just a handful of cases that illustrate the danger that comes
with recording police in public. Carlos Miller, a journalist who has been
arrested twice for photographing the police, has documented hundreds of
similar cases on his blog, Photography is Not a Crime.
What Do the Police Think?
In the most comprehensive article to date about recording the police —"
The War on Cameras" — Radley Balko interviewed James Pasco, executive
director of the national Fraternal Order of Police (FOP), which describes
itself as "the world's largest organization of sworn law enforcement
officers." Pasco argues that videotaping police officers in public should
be illegal because it can intimidate officers from doing their jobs. Mark
Donahue, president of FOP, concurs, telling the New York Times that his
organization “absolutely supports” the eavesdropping act and was relieved
that the ACLU's challenge filed last year failed, adding that allowing the
audio recording of police officers while performing their duty “can affect
how an officer does his job on the street.”
Police officers are not a monolith, so while there are many, like Pasco
and Donahue, who support these laws, there are also many who doubtless
oppose them. At the same time, police apprehension about being videotaped
on the job is understandable, especially with the advancement in
cell-phone technology increasing at record speed. Some also worry that
their actions will be preserved and used against them in ways that weren't
possible just a few years ago, while others are simply uncomfortable being
videotaped.
However, when considering recent developments in police surveillance,
Pasco's argument is rather baffling. In stark contrast to the laws banning
citizens from monitoring police misconduct with recording devices, police
officers are equipped with top-of-line surveillance cameras in their cars
and on their uniforms. According to a recent AP report, hundreds of police
departments across the country are equipping officers with tiny body
cameras to record anything from a traffic stop to a hot vehicle pursuit to
an unfolding violent crime. The mini cameras have even spawned a new cable
reality TV series, "Police POV," which uses police video from Cincinnati,
Chattanooga and Fort Smith, Ark.
The cameras are intended to provide more transparency and security to
officers on the street and to reduce the number of misconduct complaints
and potential lawsuits. Which begs the question: what is the difference
between these cameras and the footage captured by citizens in public? Why
is it acceptable for police officers to record, but not citizens? Aren't
the uniform and dashboard cameras, which unlike citizen recordings
document police actions all through the day, intimidating police from
doing their jobs, just as Pasco suggested?
Unconstitutional
Pasco goes on to suggest that we have to "put faith and trust in our
authority figures," which is the absolute antithesis of a functioning
democracy and the US constitution, which rests on transparency and
accountability.
As usual, the American Civil Liberties Union (ACLU) has taken the lead in
challenging these laws. In August of last year, the ACLU of Illinois filed
a federal lawsuit in Chicago challenging the Illinois Eavesdropping Act
(ACLU v. Anita Alvarez), arguing that the act violates the First Amendment
and has been used to thwart people who simply want to monitor police
activity, including the ACLU itself. The Illinois law is unique in that it
makes it a crime to record not only private but also public conversations
made without consent of all parties. In the lawsuit, the ACLU pointed to
six Illinois residents who have faced felony charges after being accused
of violating the state’s eavesdropping law for recording police making
arrests in public venues.
Although the lawsuit was dismissed in January, the ACLU has appealed the
suit and expects to begin making oral arguments sometime in the fall. Adam
Schwartz, senior staff attorney with the Illinois Chapter of the ACLU,
explained why the eavesdropping law is unconstitutional:
"The First Amendment protects the right to gather information for the
purpose of sharing it with other people and for the purpose of using
it to petition government for redress of grievances. And so for a long
time courts have protected the right to record by various means what
government officials are doing in public, so the press can publish
that and so that citizens can use it to petition government.
"When we talk about police officers doing their jobs in public, we’re
talking about very important government activity which is often used
properly but sometimes is abused, and it’s very important that
citizens have the ability to document what police are doing so they
can seek improvement in police policy and the like… therefore, the
first amendment protects the right to make audio-recordings of on duty
police officers who are doing their jobs in public places."
Schwartz went on to compare audio-recording to other forms of
documentation that, although less efficient, are not illegal:
"We believe that a police officer who is doing their job in a public
place does not have an expectation of privacy. Even the police can
see that if they’re arresting somebody on a corner, other people can
watch….they don’t dispute that someone can stand a small distance away
and watch, or that the person who’s watching can take out a pen and
take notes or on what they’re seeing, or that they can take
photographs of what they’re seeing or that they can make a silent
video recording of what they’re seeing. The addition of the audio is a
very powerful way for citizens to ensure that police officers are
turning square corners."
Schwartz also emphasized that resolving disputing testimonies with citizen
recording, while important, is not the only benefit to overturning the
eavesdropping law:
"If police officers are doing their jobs in public places, for example
policing a demonstration and something goes awry, it is very valuable
for there to be a strong record, including audio of what happened, so
that if there is a need to change the rules, the public can go to the
government and say "look what happened, change the rules about how
police officers are enforcing the peace at a political demonstration."
The court's decision in this case is said to be critically important in
setting a precedent that will either protect or endanger newsgatherers‘
constitutional rights to monitor and record police misconduct. Schwartz
said the ACLU is "cautiously optimistic" about the eventual ruling, which
is expected to be handed down sometime in 2012.
Rania Khalek is a progressive activist. Check out her blog Missing Pieces
or follow her on Twitter @Rania_ak. You can contact her at
raniakhalek@gmail.com.
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