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Permanent Record

posted at 5:54 pm on July 20, 2010 by

If ABC News can be believed — and in this case, they’re probably accurate, though clearly biased against the police — more and more police departments are actively trying to prevent citizens from video-recording or audio-recording arrests and other law-enforcement activities:

[I]t wasn’t his daredevil stunt that has [Anthony Graber,] the 25-year-old staff sergeant for the Maryland Air National Guard facing the possibility of 16 years in prison. For that, he was issued a speeding ticket. It was the video that Graber posted on YouTube one week later — taken with his helmet camera — of a plainclothes state trooper cutting him off and drawing a gun during the traffic stop near Baltimore.

In early April, state police officers raided Graber’s parents’ home in Abingdon, Md. They confiscated his camera, computers and external hard drives. Graber was indicted for allegedly violating state wiretap laws by recording the trooper without his consent….

“The message is clearly, ‘Don’t criticize the police,’” said David Rocah, an attorney for the American Civil Liberties Union of Maryland who is part of Graber’s defense team. “With these charges, anyone who would even think to record the police is now justifiably in fear that they will also be criminally charged.”

On the one hand, I can think of several good reasons for police to be nervous about such recordings: The video of an arresting officer can be circulated to violent gang-bangers to use in a retaliatory assault. On a less dire note, a civilian can record an arrest, then use one of many free or low-cost editing applications to alter the video to make the cops look corrupt or out of control.

A videographer conspired with the left-bank news media to do exactly that in the Rodney King beating, albeit in a crude, prehistoric, and easily refuted way: The early part of the confrontation with King was snipped off, making it appear as though the officers beat him for no reason at all. (And it doesn’t help the cause of liberty that the ABC article is utterly one-sided, not allowing police spokespeople to make the case in favor of prohibiting video-recording of arrests and confrontations.)

But still and all, such civilian videos would generally be the only possible evidence of police misconduct. If citizens have no right to record an arrest, either of themselves or a third party, without the “consent” of the officers (which is of course routinely denied), then how can anyone ever prove that a policeman is lying on the stand about what happened… or worse, that he assaulted the arrestee without good cause?

Suppose a cop pulls you over and demands money. When you refuse to pay a bribe, he throws you to the ground and arrests you for “resisting.” By the time other officers arrive, you’re already in handcuffs; who will the newly arrived police believe, the guy face down on the pavement, or one of their own?

I believe the answer is obvious: If a Good Samaritan records the events, you will be exonerated and a dirty cop will be off the streets; but if the police can confiscate his cell phone/camera — or intimidate him into not recording the arrest in the first place by threatening to arrest him too — then you will almost certainly be wrongly convicted; and the dirty cop will continue shaking down motorists. A society that removes from civilians the only means they have to prove statist tyranny is deeply unAmerican.

The ACLU of Florida filed a First Amendment lawsuit last month on behalf of a model who was arrested February 2009 in Boynton Beach. Fla. Her crime: videotaping an encounter between police officers and her teenage son at a movie theater. Prosecutors refused to file charges against Sharron Tasha Ford and her son.

Ford was not charged; but she was arrested. The mere threat of arrest would frighten most people out of video-recording any such “encounters,” even in situations where police actions were entirely unreasonable. A decent judicial system must not tilt so strongly towards “law and order” that it neglects basic liberty. After all, the purpose of police in a civilized society is not to safeguard the police; if it were, cops would just hide in their stations and only sally forth in force to make military-style raids on the civilian population, as in many third-world countries.

The basic purpose of police is to safeguard civilians — their persons, their property, and their liberty. In this case, the accused must have access to any valid record of the arrest, because it can form the basis of a defense against some or all of the charges.

It’s true that police often have their own videocameras mounted on their patrol vehicles; and in a perfect world, that would probably be all that most defendants would need. But these videos are totally within the control of the police themselves. If the arrestee alleges he was abused and subpoenas the video, the police can say there is none — it wasn’t turned on, the recorder malfunctioned — and there is no way for the alleged victim to prove otherwise.

Even if the cops are entirely honest, hood-mounted videos often fail to catch everything that happens, especially if the suspect flees and is brought to ground far away from the squad cars.

In most states, it’s only a criminal offense to record “private conversations” without consent of all parties; it seems hard to argue that official law-enforcement action — detention, arrest, physical confrontation — constitutes a conversation where the police have a reasonable expectation of privacy.

We must balance the two imperatives: We certainly don’t want creatively edited videos making their way onto YouTube and tainting the jury pool; but on the other hand, we cannot simply brush aside the liberty interest of civilians being able to gather evidence of police misconduct, abuse, or assault.

Since police themselves now routinely video-record confrontations, I would rather encourage them to expand those operations, by new legislation if necessary; this would protect them against Rodney King-like media manipulations. American military forces now routinely use helmet-mounted video cameras; that should be standard equipment for police as well. And if a civilian videos an encounter, the police should be allowed to get his name and address at the scene and subpoena a complete copy of the recording.

The cops should even be allowed to release the civilian’s complete video to the public, if a partial or edited video has already been released — via media news, YouTube, or any other means — either by the defendant or by any third party not connected with the police themselves. And of course, the prosecutor should be allowed to introduce the civilian video recording during trial, whether or not the defendant alleges abuse or misconduct… just as defendants should be allowed to subpoena and introduce any and all police videos and audios. (The latter is probably already law.)

But by the same principle, we should enact legislation allowing civilians to record incidents as well, whether as arrestee or Good Samaritan. This proposal follows my general libertarian principle: The antidote to dishonest or toxic speech is not to suppress it, but to respond to it with honest speech.

If police are worried that their actions will be deliberately misportrayed in the media, then instead of banning civilian video-recording of arrests, let the police fight back in the same venue with an honest, untampered video recording. (And if the police — or defendants — make their own dishonest manipulations of video, that should clearly fall into the category of obstruction of justice, just like post-hoc fabrication of a search warrant that never actually existed.)

Let a thousand video bloom, and hold everybody accountable for his actions — perp and cop alike.

Cross-posted on Big Lizards

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My personal thought is that there may be a way around this. Demand that the camera in the police car be turned off because you do not consent to be recorded. When the cop refuses, he has given de facto consent to being recorded and no charges can be brought against the person making the recording.

RhymesWithRight on July 20, 2010 at 6:21 PM

This is actually an area of case law that I wish the Supremes would rule on. Currently, there is a hodgepodge of state laws on this issue. I think that all police official business should be subject to legal taping; further, that they too should tape all public encounters. The weight of an officer’s testimony in court is routinely given more value than civilian testimony. Audio/video would help balance that. Plus, the prosecutor telling the defense attorney ‘we have video’ probably will reduce the number of trials held with more plea bargains conducted. Win/win.

GnuBreed on July 22, 2010 at 1:42 AM