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by Peter Moskos

August 31, 2011

The Right to Film Police

A US Court of Appeals in Massachusetts has said that arresting someone for filming the police is a constitutional violation.

A guy, after we answered in the affirmative as to whether his phone was recording audio, was charged with violation of the wiretap statute, disturbing the peace, and aiding in the escape of a prisoner. The last charge was particularly absurd. But more importantly the court said that it's not a wiretap if it's not secret . The court also said the arrest violated the fourth amendment and did not give the officers qualified immunity.

People still get arrested for taking pictures and videos of police. But I suspect this will happen less and less, especially when cops lose their immunity after making bad arrests (of the guy taking pictures). Besides, given advances in technology, attempts to prevent people from taking pictures and videos is becoming more and more a Sisyphean task.

As a police officer, I did no not love being filmed. It's not that I had something to hide, it's that I don't want a video taken out of context. And sometimes police officers do have to use ugly force. Sometimes the public and the media really does not understand.

A lot of "brutality" videos you can see on youtube show completely justified force (especially when trying to get somebody's hands from under them to behind their back). So if I'm using justified force, I'd prefer not to see my tough arrest on the evening news used as an "example" of brutality.

I understand and even agree with all the reasons you don't want to be recorded. But... you can't always get what you want. I do not want a society in which unaccountable police arrest people for taking their picture. Recording police (if you're not interfering) should be considered a constitutional right.

Of course phones and cameras, especially when somebody is resisting arrest, can still be seized as evidence. If somebody is resisting arrest, a recording is good evidence. And having to say goodbye to your phone for months might serve as a bit of a deterrent to whipping it out and pressing record. But potential police use of this trick will be tempered by a natural desire to avoid extra paperwork.

What's interesting is that this debate makes some peoples' head explode as it highlights the conservative divide between lip-service to small government and an authoritarian impulse. It makes me think once again of George Orwell's precient line that the "real division is not between conservatives and revolutionaries but between authoritarians and libertarians."


Anonymous said...

Don't a lot of cops carry a small, private, recording device on their person to counter-act those very same claims of abuse/citizen complaints? It would make sense wouldn't it?

PCM said...

Not that I know of. Besides, when push comes to shove, officers very literally have their hands full.

Anonymous said...

Maybe I wasn't clear, it would make sense to me to have one of those digital pen mics on ones person, not alike a digital video camera. I know that Adrian Schoolcraft (the guy that got into a lot of hot water in the 77th)stated, allegedly, that he began digital recording police role calls/encounters not because of his allegations of quotas, but because of civ complaintsand having only his words.

PCM said...

I couldn't hurt... except it's illegal in many states (including Maryland).

Anonymous said...

I can't speak for other departments, but in the NYPD a fair amount of cops have them, but only put them on in certain situations.

Anonymous said...

And they inform other officers around them that they have such a device.

PCM said...

Interesting. Is there any case you know of where this has gotten an officer off?

Cat said...

I keep waiting (wishing) for someone to raise a question about security camera recordings. Many commercial businesses have security cameras continuously recording outdoor areas. Public streets are in the viewing range of some of those cameras and often record law enforcement interactions. Granted the recording is inadvertent and without intent, but it's still a recording.
Someone recording with a cell phone could as easily be focusing on something else in the immediate area and inadvertently record police.
Where will the line be and why/how is one circumstance legal while the other may not be?

PCM said...

The short answer is that the government cannot prohibit recordings of police. It's legal to record in a public setting.

But even *if* the government could say it's illegal to record police, the law would probably have to be written a way to include intent so as not to be overly broad.

As a practical matter, those businesses are pretty good about sharing those tapes with police. They'd probably be less eager to share those tapes with somebody suing the police.

And also keep in mind that in general, the Constitution does not give us rights... it limits the power of government, so private companies and businesses can still restrict recordings (or free speech) which, in a government-regulated arena, would be a constitutional violation.

Ebenezer Scrooge said...

If I remember, prosecutors and cops used to fight recorded confessions on the grounds that the defense counsel would cherry-pick out of context, and the jury just wouldn't understand some of the ugliness that goes on in a completely kosher interrogation. (As a general rule, ethical people don't lie, but ethical interrogators lie like rugs.)

If I remember, these fears came to nought. Juries had no problem with videotaped confessions.

Jeff N said...
This comment has been removed by the author.
A Critic said...

"A lot of "brutality" videos you can see on youtube show completely justified force (especially when trying to get somebody's hands from under them to behind their back). "

Subjecting citizens to physical violence because they can't comply with an impossible order is why people hate cops.

And yes, if you didn't realize it, it's not possible for people to remove their hands from underneath their bodies and four or five or six cops (and gear) on top of them.

What really pisses me off is when cops use tasers in such a situation, thus immobolizing the person's muscles as the device is intended to do, and then they yell "stop resisting and put your hands behind your back". It's quite impossible which is why people don't do it.

What's really scary is that you are a "good cop" and yet you call a violent crime "completely justified force".