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6:03 pm - 06/02/2010

Are Cameras the New Guns?

Are Cameras the New Guns?

In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now 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 for arresting the "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law - requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler's license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

In 2001, when Michael Hyde was arrested for criminally violating the state's electronic surveillance law - aka recording a police encounter - the Massachusetts Supreme Judicial Court upheld his conviction 4-2. In dissent, Chief Justice Margaret Marshall stated, "Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals…." (Note: In some states it is the audio alone that makes the recording illegal.)</p>

The selection of "shooters" targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate.

Glik captured a police action on his cellphone to document what he considered to be excessive force. He was not only arrested, his phone was also seized.

On his website Drew wrote, "Myself and three other artists who documented my actions tried for two months to get the police to arrest me for selling art downtown so we could test the Chicago peddlers license law. The police hesitated for two months because they knew it would mean a federal court case. With this felony charge they are trying to avoid this test and ruin me financially and stain my credibility."

Hyde used his recording to file a harassment complaint against the police. After doing so, he was criminally charged.

In short, recordings that are flattering to the police - an officer kissing a baby or rescuing a dog - will almost certainly not result in prosecution even if they are done without all-party consent. The only people who seem prone to prosecution are those who embarrass or confront the police, or who somehow challenge the law. If true, then the prosecutions are a form of social control to discourage criticism of the police or simple dissent.

A recent arrest in Maryland is both typical and disturbing.

On March 5, 24-year-old Anthony John Graber III's motorcycle was pulled over for speeding. He is currently facing criminal charges for a video he recorded on his helmet-mounted camera during the traffic stop.

The case is disturbing because:

1) Graber was not arrested immediately. Ten days after the encounter, he posted some of he material to YouTube, and it embarrassed Trooper J. D. Uhler. The trooper, who was in plainclothes and an unmarked car, jumped out waving a gun and screaming. Only later did Uhler identify himself as a police officer. When the YouTube video was discovered the police got a warrant against Graber, searched his parents' house (where he presumably lives), seized equipment, and charged him with a violation of wiretapping law.

2) Baltimore criminal defense attorney Steven D. Silverman said he had never heard of the Maryland wiretap law being used in this manner. In other words, Maryland has joined the expanding trend of criminalizing the act of recording police abuse. Silverman surmises, "It's more [about] ‘contempt of cop' than the violation of the wiretapping law."

3) Police spokesman Gregory M. Shipley is defending the pursuit of charges against Graber, denying that it is "some capricious retribution" and citing as justification the particularly egregious nature of Graber's traffic offenses. Oddly, however, the offenses were not so egregious as to cause his arrest before the video appeared.

Almost without exception, police officials have staunchly supported the arresting officers. This argues strongly against the idea that some rogue officers are overreacting or that a few cops have something to hide. "Arrest those who record the police" appears to be official policy, and it's backed by the courts.

Carlos Miller at the Photography Is Not A Crime website offers an explanation: "For the second time in less than a month, a police officer was convicted from evidence obtained from a videotape. The first officer to be convicted was New York City Police Officer Patrick Pogan, who would never have stood trial had it not been for a video posted on Youtube showing him body slamming a bicyclist before charging him with assault on an officer. The second officer to be convicted was Ottawa Hills (Ohio) Police Officer Thomas White, who shot a motorcyclist in the back after a traffic stop, permanently paralyzing the 24-year-old man."

When the police act as though cameras were the equivalent of guns pointed at them, there is a sense in which they are correct. Cameras have become the most effective weapon that ordinary people have to protect against and to expose police abuse. And the police want it to stop.

Happily, even as the practice of arresting "shooters" expands, there are signs of effective backlash. At least one Pennsylvania jurisdiction has reaffirmed the right to video in public places. As part of a settlement with ACLU attorneys who represented an arrested "shooter," the police in Spring City and East Vincent Township adopted a written policy allowing the recording of on-duty policemen.

As journalist Radley Balko declares, "State legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials."

Wendy McElroy is the author of several books on anarchism and feminism. She maintains the iconoclastic website ifeminists.net as well as an active blog at wendymcelroy.com.

These are not new laws, but their enforcement is steadily increasing. If you are at all involved in any sort of protest or resistance movement, and even as a private citizen... be careful out there, kids.

(This post dedicated to influencethis, who is raging from her desk at work.)
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excusemesenator 2nd-Jun-2010 11:11 pm (UTC)
I hope these laws are struck down in court.
thechangingwind 2nd-Jun-2010 11:16 pm (UTC)
Is this real life?
arisma 3rd-Jun-2010 12:55 am (UTC)
Yes, but I don't know why. It's not like they're ever actually punished.
professor_chaos 2nd-Jun-2010 11:18 pm (UTC)
This only makes it easier for people to distrust the police even though not all police officers are bad apples. It's also disturbing when laws are created/enacted that protect authority figures, particularly police and allow innocent people to be put in jail when they are already overcrowded.
moshfloorkiller 2nd-Jun-2010 11:21 pm (UTC)
oh fuck off.
as a future photojournalist, nothing makes me rage harder than things like this.
anythingbutgrey 2nd-Jun-2010 11:29 pm (UTC)
are you serious?

what the fuck is this country doing lately?
thebigbadbutch 3rd-Jun-2010 12:00 am (UTC)
Oh you know, just hanging out in this cool basket. We might be going somewhere but we're too busy watching the series finale of Lost to be sure.

Edited at 2010-06-03 12:01 am (UTC)
poetic_daze 2nd-Jun-2010 11:39 pm (UTC)
amazingrando 2nd-Jun-2010 11:43 pm (UTC)
Seriously what the fuck.
fruhlings 2nd-Jun-2010 11:56 pm (UTC)
fuck this shit.
mouseling 3rd-Jun-2010 12:01 am (UTC)
This is such bullshit.
cindel 3rd-Jun-2010 12:06 am (UTC)
lol good luck with that.
kencf0618 3rd-Jun-2010 12:21 am (UTC)
Sousveillance shall eventually win in court.
flowerings 3rd-Jun-2010 12:31 am (UTC)
escherichiacola 3rd-Jun-2010 12:33 am (UTC)
I always worry police officers don't have enough power.
noir_aya 3rd-Jun-2010 12:45 am (UTC)
Image and video hosting by TinyPic
arisma 3rd-Jun-2010 12:56 am (UTC)
arisma 3rd-Jun-2010 12:57 am (UTC)
So, I guess this means dashboard cameras are out too, right?
sixdemonhag 3rd-Jun-2010 05:49 am (UTC)
Hah! Don't you know, only cops can be trusted with recording people.
whatisurdamage 3rd-Jun-2010 01:01 am (UTC)
bull. shit.
akuma_river 3rd-Jun-2010 01:21 am (UTC)
When the hell were these laws made? The 70's?

These can't last in the YouTube age.

I guess we got to start to use proxy's, fake name accounts, and post it anomynously like they do in Iran.

This shit is insane.

Do we have a list of all the states and the laws in accordance to the recordings?
homasse 3rd-Jun-2010 01:30 am (UTC)
Color me unsurprised that as soon as people have a way to document the bullshit cops do in a way that is completely incontrovertible, the system finds a way to turn it around and criminalize and intimidate the people trying to protect themselves from bad cops.

I'm shocked.

And breathlessly awaiting the responses of the cop-apologists, even though I doubt highly they'll show up to defend this.
draconifers 3rd-Jun-2010 01:30 am (UTC)
what the fuck?
no, what the FUCK?
maisoui 3rd-Jun-2010 01:35 am (UTC)
I can't even express how angry this makes me.
sunshinedan 3rd-Jun-2010 01:57 am (UTC)
bludstone 3rd-Jun-2010 10:58 am (UTC)
Only in private. If there is no expectation of privacy, or you dont have the intent of spying on someone, then you are okay.

Not that it'll prevent the cops from arresting you, mind you. Its just what the cops are saying regarding Graber's arrest. Its a cover for their own shitty gestapo-esque policies.
_starsinmyeyes_ 3rd-Jun-2010 02:17 am (UTC)
I watched The Largest Street Gang in America on Youtube and it scared the shit out of me. I mean, I know it's biased and all, but you cannot deny what was on some of those videos. I'm terrified of cops, and cop-mentality.
thechangingwind 3rd-Jun-2010 04:22 am (UTC)
I saw that video recently for the first time. The Fouad Kaady incident made me cry. It was awful.
bmh4d0k3n 3rd-Jun-2010 02:21 am (UTC)

Yeah, why should police officers have to worry about accountability?
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