[Since the June, 2011, publication of this primer on filming interactions between police and public, visual documentation by citizen witnesses has again and again opened a vital window into law-enforcement practice. Pulling out the camera is just as risky as it ever was.]
It may hurt to find out that the police don’t like attention.
If it hadn’t been for George Holliday, a lone untrained citizen wielding a primitive video camera in 1992, the Los Angeles policemen who played piñata on evasive motorist Rodney King never would have gone on trial and been acquitted in Simi Valley, and the entire L.A. skyline would not have lowered and blackened during six days of retaliatory civil insurrection that cost 53 people their lives and $1 billion in property damage.
Potentially, society’s paid protectors are subject to greater public scrutiny, and can be held to higher accountability, than at any time in human history.
During the 19 years since King’s beating flickered on TV screens around the globe, advanced digital cameras have become ubiquitous. Almost any vigilant citizen who carries a cell phone is equipped to monitor the behavior of police officers at work—and to post that behavior for the entire Internet to see. Potentially, society’s paid protectors are subject to greater public scrutiny, and can be held to higher accountability, than at any time in human history.
Crowd-sourced camerawork has certainly been useful in unraveling conflicting versions of contentious police-civilian interactions. In March 2010, Maryland basketball fans Jack McKenna and Benjamin Donat, while celebrating their team’s victory over Duke, were detained by two Prince George’s County Police officers on horseback and three riot-geared police on foot. McKenna was arrested and charged with assault and resisting arrest. Police claimed that McKenna had confronted the officers, verbally provoked them, assaulted them, and fought when detained. Videos captured by students at the scene and posted to the Internet (above) showed cops grabbing McKenna, slamming him into a wall and walloping him with batons. Four of the cops were suspended, and charges against McKenna were dropped.
Now every cop who walks a neighborhood beat should be aware that a free doughnut can only be accepted along with a risk that the sugary delight may show up on YouTube. It stands to reason that the innocent public should feel safer than ever from abusive flexing of police power, right? Yes! Except for these five extenuating factors.
1) Recording public officials can be interpreted as a felonious violation of their right to privacy: In 2008, 41-year-old Illinois gear head Michael Allison went to court to contest citations he’d received because derelict cars were parted out all over his lawn. In the absence of a court reporter, Allison entered Judge Kimbara Harrell’s courtroom armed with a microphone and tape recorder. He left that courtroom facing five counts of wiretapping, each punishable by four to 15 years in prison. “You violated my right to privacy,” the judge said, while seated in a public place. As of June 2011, Allison’s case is still pending. He has vowed to refuse any plea bargain and to risk prison time to overturn what he perceives as an unconstitutional and irrational wiretapping law.
2) Ignorance of the law banning filming of cops is no defense, even if no law bans filming of cops: In 2007, 18-year-old Brian Kelly recorded a traffic stop in Carlisle, Pennsylvania. After charging Kelly with a felony, Cumberland County District Attorney David Freed told a local newspaper: “Ignorance of the law is no defense.” Unfortunately for Freed, his deeper research found no law prohibiting Kelly’s actions, forcing the D.A. to drop the charges. In a later case, the Pennsylvania American Civil Liberties Union (ACLU) settled a cops-and-cameras false arrest suit with a stipulation that Allegheny County police chiefs be notified that recording on-duty police officers is protected under state law. In fact, no state laws, other than in Massachusetts and Illinois, specifically forbid a person who isn’t physically interfering with an on-duty police officer from recording that officer in action. That officer may see things differently.
3) You have the right to photograph a cop as he shoots a prone young black man in the back, but you must be prepared to run or lose your phone: When Bay Area Rapid Transit (BART) Officer Johannes Mehserle pulled a gun and fatally shot 21-year-old Oscar Grant on January 1, 2009, as the young man squirmed on his belly at a crowded Oakland, California, subway station, cell phone cameras came out en masse. Before Grant’s body had even been processed, video of his slaying was bouncing all across the Internet, but the footage almost didn’t make it out of the station. BART officers chased down subway riders, and attempted to snatch away their phones. Generally speaking, police have no right to your phone unless you have used the phone in a crime. That point will not be granted during a heated discussion with a law enforcement debate team, especially if some kid is bleeding to death within camera range.
Cops, judges and prosecutors who knowingly rough up and arrest lawfully abiding observers for committing lawful observation rarely face consequences.
4) Expect a bit of a double standard: Michael Allison was unaware of any law prohibiting him from bringing a tape recorder into Judge Kimbara Harrell’s courtroom. According to Allison, no signs banning recording were posted in the courtroom. Brian Kelly could not have known that recording a traffic stop in Carlisle, Pennsylvania, was illegal, in part because it was not illegal. Being unaware of committing a crime does not protect citizens of the world’s role-model democracy from enduring arrest, felony charges and jail time. On the other hand, cops, judges and prosecutors who knowingly rough up and arrest lawfully abiding observers for committing lawful observation rarely face consequences. Police are protected by qualified immunity, and prosecutors are protected by absolute immunity; so suing them is an odds-on waste of time. Plus, civil action is nowhere near so invigorating as waving around a gun.
5) The police version of events may contradict what the tape shows: Rochester, New York’s Emily Good took a ride in the back of a police cruiser this past May 12. Good started out as a free woman in her own front yard, filming a traffic stop, and ended up being lead away in handcuffs as a perp. Charges of obstruction of governmental administration against Good were dismissed, perhaps because her video has received more than 100 thousand views on YouTube.
The footage clearly shows one of three police officers turning his back on a handcuffed suspect to walk onto Good’s property and accuse her of compromising his safety. The video also reveals only a driver and no passengers in the detained car, but the Rochester police report states that three members of the “Chalkem South” gang, known for “drug sales, guns and violence,” were pulled over. Presumably, Good’s presence in her own front yard would have posed a greater threat if three suspects had been pulled over, rather than one. Two police officers are clearly seen in Good’s video shining flashlights into the car’s passenger windows; they fail to light up any passengers. In their official version of events, officers did successfully attribute a colorful quote to one putative passenger: “We don’t even know that crazy (expletive). What is she thinking? I’m going home.”