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Inside Criminal Justice

Cameras, Cops and the First Amendment

November 2, 2011 05:13:02 pm

By Jeremy Kohler

Walking by the Boston Common one afternoon in October 2007, Simon Glik saw three police officers forcing a young man face down on a park bench and heard a bystander say, "You're hurting him."

Concerned that officers were using unreasonable force to arrest the man, Glik, a young lawyer, used his cell phone to film the incident from 10 feet away.

After placing the suspect in handcuffs, an officer told him he'd taken enough pictures. Glik responded, "I am recording this. I saw you punch him."

An officer asked Glik if his cell phone recorded audio. Glik said yes. The officer cuffed Glik, and arrested him on a charge of violating Massachusetts's wiretap law, aiding in the escape of a prisoner, and disorderly conduct.

They also erased some of the recording, according to news accounts.

Glik was part of a trend that is riling journalists and activists.

From Georgia to Nevada, police are arresting people who are photographing or videotaping their activities from public space or their own property, seizing their equipment and erasing the images.  No one keeps data on the frequency of such arrests. But a spate of high-profile incidents in several states suggests the numbers are growing.

“Nobody should stand for this,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, an Arlington, Va., based nonprofit organization that provides legal help to reporters and news organizations.

Police can arrest people who are interfering with their investigation or are committing a crime themselves, she said. “If you are throwing a rock at police officers with one hand and holding a video camera in the other, you are not protected.” But as more and more videos of confrontations surface on the Internet, it appears that in many cases the officers just don't want to be taped.

"For whatever reason, some cops didn't get the message that I learned 30 years ago," said David A. Klinger, a former Los Angeles police officer and expert in police procedures who is now an associate professor of criminology at the University of Missouri-St. Louis,. "When you're doing your job, just assume you're being videotaped."

The people taking video claim they have a constitutional right to do so.

Four months after Glik’s arrest, a Boston Municipal Court judge threw out the criminal case against him, saying the fact that the "officers were unhappy they were being recorded during an arrest...does not make a lawful exercise of a First Amendment right a crime."

A Missouri journalism professor observes that police seem to be digging in their heels when confronted with amateur videographers.

"The easier it gets for citizens to scrutinize police officers (think cell phone cameras), the angrier the police get," wrote Charles N. Davis, an associate professor at the Missouri School of Journalism, with doctoral student Jonathon Peters, in this summer's IRE Journal (members only link), published by Investigative Reporters and Editors. "Photojournalists are the pawns in a game they didn’t start, as the police increasingly respond with force and even jail time."

Davis and Peters called on journalists to take action.

"Enough of us in journalism are sitting idly by while civil liberties are trampled and new laws make us all criminals ­ merely for doing our jobs," they wrote. "Public officials will stop overinflating their expectations of personal privacy only if the press pushes back."

But Dalglish does not advocate disobeying a police officer, no matter how unreasonable the request to stop filming or vacate a scene. “If you pick a fight with someone with a badge and a gun, you are going to lose.”

She added: “This is outrageous, but the response and the remedy is legal and political. Document it. Contact all your local political officials. If you’re the media, raise hell and then sue them. If you are a citizen, call the ACLU (for legal representation). Journalists, we’ll find a lawyer to represent you.”

The Right to Record

Glik isn't a professional journalist, but he may have scored the victory for the right to record police in public spaces that Davis and Peters were calling for. With help from the American Civil Liberties Union, he sued the Boston police for violating his First and Fourth amendment freedoms— and won.

In August of this year, the First District U.S. Court of Appeals thoroughly vindicated Glik.

Wrote Circuit Judge Kermit Victor Lipez: "We conclude, based on the facts alleged, that Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause."

It makes no difference if the person behind the camera is a journalist or everyday citizen, according to Lipez.

"Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw,” (and therefore First Amendment protections for news-gatherers can no longer) “turn on professional credentials or status,” he wrote.

It's what the framers of Bill of Rights had in mind, Klinger of the University of Missouri-St. Louis observes. Newsgathering was very much the task of "citizen journalists" of 18th-century America.

Lipez added that "ensuring the public's right to gather information about their officials not only aids in the uncovering of abuses ... but also may have a (beneficial) effect on the functioning of government."

It's particularly important to protect the right to report on the activities of law enforcement officers because they "are granted substantial discretion that may be misused to deprive individuals of their liberties," he continued.

Don’t look for a national test case before the Supreme Court on this issue, said Dalglish.

“It’s never going to get to the Supreme Court because the judges throw this bullshit out,” she said. “You can’t take something to the Supreme Court unless you lose, and almost no one loses” cases in which people are arrested for taking video of police.

But there is a disconnect between what the courts hold and what's happening on the street.

IPod Activism

In Rochester, N.Y., in June, Emily Good, a self-described “activist for justice,” was arrested after she used an iPod to film a traffic stop from her front lawn. She said in interviews after her arrest she had just read an article about how black drivers are stopped disproportionately. She started filming when she saw two white officers pulling over a young black man.

Her video, posted on YouTube, shows one of the officers immediately telling her to put the camera away. She stands her ground.

"I'm just recording what you're doing. It's my right," she insists.

The officer tells Good he doesn't feel safe because she seems to be "anti-police."

After she refuses several times to go inside, the officer cuffs Good, leads her to a squad car and places a sobbing Good under arrest on a New York state misdemeanor charge of obstructing governmental administration.

The driver who was pulled over was not arrested.

A few days later, a number of Good’s supporters met at another Rochester home, and at  least three officers showed up to ticket cars parked there. This was captured on video, too.

Charges were dropped against Good, and the Rochester mayor and police chief said they were looking into misconduct in the department.

But an official from the  Rochester police union told the local media that Good's right to disobey an officer's order wasn't as cut and dried as the media portrayed it to be.

Defending Officer Safety

“The number one concern that we all share (is) that nobody interferes in a situation that could cause one of our officers or a member of the community to get hurt or killed,” said Mike Mazzeo, president of the Rochester Police Locust Club, the officers' union. “It’s just too dangerous-- the job we do out there.”

Standing in the dark with a video camera is "a distraction to what these officers are doing," he said.

In Sacramento, a retired police commander says "good citizens" have to reach out cooperatively to police and not challenge "whether or not they are walking an exact line set by appeals courts."

"The law only works when citizens cooperate, not deliberately disrupt or challenge the authority given to the police, even when those citizens don't like what they see," said Michael Shaw, whose memoirs, Middle Aged White Boy, explores issues of race and age discrimination in the Sacramento law enforcement community.

"Obey the orders of officer at the time. Complain later or you will be on the losing end of the event. Police have limited choices when pushed to the wall."

Responding to videos of the Good arrest and others, he added: "These complaints and your pictures belong in an internal investigations unit; not flashed all over the internet to inflame more people against the police."

Whether or not the police like it, videos are here to stay. The ability to create and share video, nearly in real time, was integral to the so-called Arab Spring -- uprisings in Islamic nations against totalitarianism -- and to the "occupations" of Wall Street, and in cities like Boston, St. Louis and Hartford, uprisings against corporate greed.

‘Information is Power’

In a speech this May, President Barack Obama spoke of American support for protests in the Middle East.

"Through our efforts we must support those basic rights to speak your mind and access information," he said. "We will support open access to the Internet, and the right of journalists to be heard – whether it's a big news organization or a blogger. In the 21st century, information is power."

Sometimes the information is painful to see or hear. Just ask George Holliday, who stood in the dark one night in March 1991 and captured the beating of Rodney King by four Los Angeles police officers.  The Holliday video forced Americans to confront underlying racial tensions and exposed how government can abuse its power. The video set a tone for how to evaluate the conduct of police officers.

Gerry Weber, a lawyer with the Georgia Council on Human Rights, says he thinks the sheer numbers of video cameras in the public's hands is likely driving the latest trend of confrontations with police. Never before have video cameras been so cheap, portable and easy to use. The Nielsen Co. estimates one in two Americans will have a smartphone by this Christmas, up from one in 10 just three years ago.

Some police departments have recognized the spread of video cameras and have educated officers about how to act when film is rolling. Six years ago in St. Louis, before video cameras were ubiquitous in smartphones, the local chapter of the American Civil Liberties  Union announced Project Vigilant: a plan to hand out cameras to people who  wanted to film the police working in the crime-wracked streets around  Fairground Park.

The department's response: go ahead. We think you'll catch us acting professionally.

Despite a high crime rate and occasional tensions between police and the community, complaints of officers stopping people from shooting video have been virtually unheard of in St. Louis.

After several lawsuits against Atlanta police officers who seized cameras from people taking video of them, the department issued a policy stating officers were prohibited from doing so.

Weber, the Georgia civil rights attorney who litigated some of the cases, said an increase in videotapes serves everyone’s interests. The camera doesn’t lie, he said.

“If we have standard operating procedures and a constitutional requirement that define the reach of the law enforcement officers' duties--and we do--then the most true check on an officer's conduct is to have a video of what they, in fact, did,” he said.

“You're not going to need an internal affairs investigation where it's one officer's word against a citizen, you have the documented event that provides the most clear evidence for resolution, either to exonerate the officer or say he did not act properly.”

But until police start to uniformly accept the presence of video cameras on the street, it might be journalists like Clint Fillinger who feel their wrath.

In Milwaukee last month, veteran photojournalist Fillinger was trying to film a house fire when, his video shows, two police officers started backing him away from the perimeter. His video shows him backing up, protesting that other people were allowed to stay and watch.

"I just kept backing up and telling them I had a right to be there," he said in a televised interview later.

The officers didn't seem to have a clear reason why Fillinger needed to back up. One aid it was for his safety. The other said it was for privacy. (The department declined to make the officers available for an interview with The Crime Report.)

"Whose privacy?" Fillinger asked.

Finally, we see the camera on the ground. It's not clear from the video, but Fillinger said he'd put his hand out.

The officer told him, "No one touches me," and cuffed him.

Fillinger was cited for resisting and obstructing police.

Said Fillinger on camera later: "I've been doing this 45 years and nothing even close to this has ever happened."

Jeremy Kohler, a regular contributor to The Crime Report, is an investigative reporter with the St. Louis Post-Dispatch and a journalism instructor at Washington University in St. Louis.

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