Monday, June 6, 2011

The war between bad cops and citizens with cameras continues

Law enforcement and government officials have never been fond of citizens with cameras. It seems these dangerous, camera toting vigilantes always show up at the most inopportune moment and often capture footage that an officer, or officers, would probably rather not be filmed. The right of a citizen to record police while they're doing their job has been hotly debated over the last few years with all but the most backwards of courts and states supporting the absolute right of the citizen to record video of public servants as they discharge their duties - especially in public places like roadsides, parking lots, and other widely visible places.

As you might expect, most police officers don't really have a problem being videoed or photographed as long as the person with the camera doesn't get in the way. Recording the police at a distance that allows them to do their job and doesn't put them in danger is OK; getting up close and personal with the cop and camera while things are going nuts isn't. It's a pretty easy to understand guideline. Cops probably find a busybody with a camera annoying, but most won't do anything about it since the camera operator isn't breaking the law and neither is the cop.

But sometimes, the cops do break the law and that's where things get interesting.

Several citizen videos have surfaced over the last few years of police officers doing some very bad things. I'm not talking roughing up the local drug dealer here either; I'm talking things like stealing from suspects, assault, rape, and even murder. For obvious reasons, these cops would rather their escapades not fall into the hands of an ordinary citizen because, once it's out of police control, there's not much the cops can do to cover up the crime. And, yes, unfortunately, many times these crimes, as heinous as they are, are indeed covered up by the department.

Take, for example. the recent Memorial Day shooting of a man in Miami Beach, Florida. 35 year Narces Benoit and his girlfriend were driving by a police stop around 4:00am Monday morning when Narces noticed that the police were approaching the car with their weapons drawn. Finding it interesting and newsworthy, Benoit pulled out his mobile phone and began recording the encounter. Four minutes later, the incident ended with a hail of bullets being fired into the car, leaving the suspect dead.

Unfortunately, for Benoit, the action wasn't quite over yet. When officers noticed him recording they immediately started yelling for him to turn the camera off and came towards him aggressively. Notice that they did not say 'this is evidence, we need it' as a cop should do in these cases, they wanted him to STOP RECORDING. Suspicious, yes, but it doesn't end there.

Benoit ran to his car where his girlfriend sat in the drivers seat ready to leave. Moments later, he raises the camera to show an officer appearing at the drivers side with his gun trained on the couple, demanding that they turn the camera off and get out of the car. Once they exited the car, Benoit had the forethought to secret away the memory card from his phone to protect the video before the officers threw he and his girlfriend to the ground, took his mobile phone and smashed it then brought the pair to a mobile command center to be interrogated and, eventually, released.

Absolutely crazy? Yes.
Common procedure with bad cops? Yes.

Unfortunately, this kind of behavior has become commonplace as more and more people carry video equipped mobile phone and high definition pocket video cameras. When cops break the law, the likelihood that someone will have a video camera pointed at them has increased and, as a result, the aggression bad cops show towards these citizen journalists has increased as well. Video routinely 'disappears' from confiscated devices, phones are smashed on the sidewalk, and citizens are intimidated into silence by cops who believe they are above the law and that their departments won't do anything in response to a citizen complaint against them.

So what should you do if you see something happening with police that you feel needs to be documented? Most importantly, you should learn your state laws governing recording other people. Specifically, become familiar with the states wiretapping laws. In all but a handful of states, videotaping the police is an absolute right and not a crime. The states in which it is a crime usually prosecute videographers using the states antiquated wiretapping law that says that, in order to record someone, all parties must consent. Since the police obviously didn't consent, the videographer is violating the law. Of course, I don't know of anyone who would consent to being recorded during the commission of a crime but perhaps I just don't understand the law.

Of the states that have used wiretapping to prosecute videographers who film police, the rules on what you can record vary widely. Some states allow you to video record but not audio record since the law specifically references audio recording. Others make no distinction between the two and videographers can be arrested and face serious jail time (up to 6 years in some jurisdictions) for pulling out the camera.

Deciding to use your video camera is a tough choice. Choosing not to do so may mean that bad cops continue to get away with crimes for years, going undiciplined and allowed to further terrorize the populace. But deciding to do so could put you in both legal and physical danger and should not be taken lightly. In the end, speaking to a good lawyer or your states ACLU as well as understanding the physical risks involved can go a long way. Ultimately, the decision should be made carefully and thoughtfully and you should always act and speak to an officer with respect and in a non-aggressive tone. You want to document an officers crime or wrongdoing, not become part of it.

In the end, the police will have to accept the new reality that they will be videoed and those videos, if they are of criminal or unethical activities, will eventually make it online or even to court. But the police agencies and state legislatures must also accept that they cannot allow bad cops to suppress free speech in order to cover up their crimes. A badge is not a license to become a common street thug and it's an insult to every good, hard working, man and woman who wears the uniform to allow bad behavior to go unpunished or to protect 'the brotherhood' when outright crime is being committed.

The war against filming police is just beginning. Several cases are slowly working their way to the Supreme Court where a ruling there will help turn the tide one way or the other. Until then, know your rights, choose wisely, and just do the right thing. The law may not always be on your side but that doesn't mean you're doing anything wrong.

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