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Intro: "Actions against citizen videographers go against not just the Constitution but good public policy. Without a videotape, Rodney King would have been just another guy with a prior record claiming abuse."

A citizen-journalist films Denver police at Occupy Denver, 10/29/11. (photo: John Moore/Getty Images)
A citizen-journalist films Denver police at Occupy Denver, 10/29/11. (photo: John Moore/Getty Images)



The Right of Citizens to Videotape Police

By Jonathan Turley, Los Angeles Times

11 November 11

 

Actions against citizen videographers go against not just the Constitution but good public policy. Without a videotape, Rodney King would have been just another guy with a prior record claiming abuse.

wenty years ago, as Rodney King was beaten by Los Angeles police officers, a private citizen in a nearby apartment turned on his video camera. Largely because of that tape, four officers were criminally charged. In July, a homeless schizophrenic man died after a police beating in Fullerton. Audio from a cellphone video caught Kelly Thomas' cries for his father and helped force an investigation that resulted in a first-degree murder charge against one police officer.

The increasing availability of cellphones and video cameras has fundamentally changed police abuse cases, creating vital evidence in cases that were once dismissed as matters of conflicting accounts between officers and citizens. With that change, however, has come a backlash from officers who, despite court rulings upholding the right of citizens to tape police in public, have been threatening or arresting people for the "crime" of recording them. In many states, prosecutors have fought to support such claims and put citizens in jail for videotaping officers, even in cases of police abuse.

In New York this year, Emily Good was arrested after videotaping the arrest of a man at a traffic stop in Rochester. Good was filming from her frontyard; an officer is heard saying to her, "I don't feel safe with you standing behind me, so I'm going to ask you to go into your house." When she continued to film, the officer said, "You seem very anti-police," and arrested her.

In Illinois last month, Brad Williams filed a lawsuit against the Chicago Police Department because, he said, he was beaten by police in response to his filming an officer holding and dragging a man down the street from inside a moving squad car. Ironically, Chicago has rejected complaints about the installation of thousands of cameras in the city that film citizens in public for use in prosecutions.

In Maryland in July, Anthony Graber got a well-deserved speeding ticket, but his real mistake was posting footage from his motorcycle helmet-cam on YouTube. It showed an irate off-duty, out-of-uniform officer pulling him over with his gun drawn. Prosecutors obtained a grand jury indictment against Graber on felony wiretap charges, which carry a 16-year prison sentence.

In Boston in August, the US 1st Circuit Court of Appeals ruled unambiguously that the Constitution protects citizen videographers filming in public. In that case, attorney Simon Glik was walking past the Boston Common on Oct. 1, 2007, when he came upon three Boston officers arresting a man. Glik turned on his cellphone camera after hearing a witness say the police were being abusive. An officer told Glik to turn off his camera. When Glik refused, he was arrested for violation of the state wiretap statute, disturbing the peace and, for good measure, aiding in the escape of a prisoner.

The charges were dismissed after a public outcry, but in a later civil rights case, city attorneys fought to deny citizens the right to videotape police. The court rejected Boston's arguments and found that the police had denied Glik his 1st and 4th Amendment rights.

But other federal judges might not be so sure. Take Richard Posner, the intellectual leader of conservative judges and scholars who sits on the US Court of Appeals in Chicago. Posner shocked many last month when he cut off an attorney for the American Civil Liberties Union, which had filed suit to challenge an Illinois law preventing audio recording of police without their consent.

The ACLU lawyer had uttered just 14 words when Posner barked: "I'm not interested, really, in what you want to do with these recordings of peoples' encounters with the police." Posner then added his concerns about meddling citizens: "Once all this stuff can be recorded, there's going to be a lot more of this snooping around by reporters and bloggers.... I'm always suspicious when the civil liberties people start telling the police how to do their business."

Many judges may privately share Posner's view of such confrontations. And the near-total silence of politicians in dealing with the question of the public's right to record what they see and hear suggests that many legislators may also find these cases inconvenient.

Actions against citizen videographers run against not just the Constitution but good public policy. Yet, without a videotape, Rodney King would have been just another guy with a prior record claiming abuse, against the word of multiple officers.

The outcome once was all but inevitable: no tape, no case. As long as police abuse is out of sight, it can also be out of mind. If successful, the backlash against citizens recording police could guarantee that Rodney King is never repeated - the officers' trial, that is.

Jonathan Turley is a professor of public interest law at George Washington University.

 

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+53 # Michael_K 2011-11-11 20:46
There lies the double-standard ! How many of these swine laughingly taunt us, when we protest the "big brother" machine they are building, by saying: "what are you afraid of? what are you hiding?"

I say the same to them, in spades, since they have a responsibility to us, in serving and protecting us.

As to Posner, all I have to say to that turd is "sit on it and rotate, perjuror"
 
 
+20 # pbbrodie 2011-11-12 07:18
Why is Posner even still on the bench?
One of our biggest problems is the huge number of these ultra-conservat ive activist judges that have been busily subverting the intent of the Constitution. They, the conservative activist judges with their ridiculous rulings, like Citizens United, are the basic cause of many of our most serious problems with our government.
 
 
+4 # mwd870 2011-11-12 14:39
The conservative activist judges are have negatively influenced our most serious problems with our government. As maddave explained, all the Federal judges are appointed by the President for life.

With this in mind, elections become even more important, as we want liberal judges appointed where possible. A strong, liberal Congress could also pressure the president to make better decisions.
 
 
+11 # unitedwestand 2011-11-12 12:51
I've heard it said directly from policemen's mouths, that if someone has been wrongly abused in a particular case, it is okay as they probably are guilty of other crimes anyway.

Police have very difficult jobs, and I respect and sometimes admire their service, BUT, they must be held accountable when they go wrong because their power to hold someone against their will, and ruin their lives is too scary to contemplate. We all could be their victims.
 
 
+16 # Tippitc 2011-11-11 23:49
"Serve and protect" whom?! I don't believe the cops can stop and/or arrest everyone with a cellphone. If the cops are just doing their job what do that have to hide - what are they afraid of?
 
 
+12 # larryoinpdx 2011-11-11 23:50
"Without a videotape, Rodney King would have been just another guy with a prior record claiming abuse."

You know, Professor, to the police - to this day - that's all he is!
 
 
+11 # Tim K 2011-11-11 23:57
I guess turnabout is not fair play when it involves police being policed. Sounds like a police state run amok. Let's keep recording them so much they will have to try and arrest us all.
 
 
+7 # Activista 2011-11-12 00:04
Seems that there is more democracy in Cairo, Egypt than in Chicago, Police States of America.
 
 
+8 # dbashaggy 2011-11-12 00:20
Of course, the reverse being the police want us to inform on our fellow citizens to get the arrest and conviction. If the police and judges continue to destroy our rights, you can bet that the average citizen will think twice about helping the police at all, and will all of a sudden come down with amnesia.
 
 
+12 # shjlaw 2011-11-12 02:41
Personally, I believe EVERY police interaction with a citizen should be videotaped. That would protect both the citizens and competent, conscientious officers. The authorities can watch you in public places with virtually no limitations. Why should they be any different? Clearly, with some of the recent and historic revelations of police corruption and abuse, someone ought to be watching them a little closer! Why not every citizen, every minute of every day? You just never know how much good might come from it. If the police thought they were under constant observation and scrutiny, and knew they would be held accountable for their conduct, they might become more "civil" in the way they handle the public. That, in turn, could well result in greater respect for the police and the law generally. Finally, however, you should be very concerned for the state of our liberty when a citizen can be threatened and even arrested and jailed for nothing more than observing and documenting the actions of a public official in a public place. There is NO rationale that can legitimize such an arbitrary and capricious abuse of power.
 
 
+7 # maddave 2011-11-12 04:15
What else do you expect from a nation obsessed with security and operating under the Patriot Act which is administered under a "secret" interpretation whose contents are denied to We The People. Despite this egregious anomaly, We The People are still admonished that "Ignorance of the (secret) law is no defense."

Is it 1984 yet?
 
 
+7 # Nel 2011-11-12 06:24
Outrageous!!!!!
Without police/legal transparency there is no freedom nor democracy.
 
 
+6 # mwd870 2011-11-12 07:11
Mr. Posner is clearly a dangerous person, believing his personal opinions trump constitutional law. I don't know how judges in District US Courts of Appeal attain their positions (need to do some research), but I hope there is a way to get rid of him.

On the other hand, it is encouraging the US First Circuit Court of Appeals were unambiguous in their ruling in support of citizens' rights. So much rests on the election/appoin tment of judges who respect the consitution.
 
 
+4 # maddave 2011-11-12 10:41
[quote name="mwd870"] I don't know how judges in District US Courts of Appeal attain their positions (need to do some research), but I hope there is a way to get rid of him.

For information of all who are unclear about the appointment of Federal Judges (on all levels): they are appointed for life by the President. They can be removed only by impeachment - which means an indictment and trial process conducted by Congres.
 
 
+4 # fredboy 2011-11-12 08:22
The protection of individuals calls for the freedom to videotape and audiotape. Every state law challenging this essential and I believe fundamental right should be challenged as unconstitutiona l.
 
 
+5 # fredboy 2011-11-12 08:26
Tapes--video and audio--share the truth. That's what everyone is afraid of.
 
 
+4 # John Locke 2011-11-12 09:18
Police lie, they always have, videotaping them is the only way to keep them half way honest
 
 
+7 # Wilbur 2011-11-12 09:22
Professor Turley: While I agree with you that our Constitution's First Amendment protects the right of citizens to photograph/reco rd police going about their arrest powers at public gatherings, I believe you should have noted that a Maryland state judge threw out felony wiretap charges against Anthony Graber about two weeks before a criminal trial that had been scheduled for Oct. 12.

The correct statement of the wiretap law, I believe, is that no recording is illegal if one of the parties to a PRIVATE conversation is aware that the recording is being made. Audio recording of a law enforcement officer making an arrest of a person in full view of the public could NEVER violate the wiretap law, in my opinion, because there is no expectation of privacy.
 
 
+3 # Merschrod 2011-11-12 09:50
An old Irish saying, "everyone is honest is well watched."

So, big brother or little brother is a threat to bad actors.
 
 
+6 # humanmancalvin 2011-11-12 09:53
Double standards favoring the police have always been the case. The average citizen, especially the average brown, black, or red citizen is at their mercy. And mercy is not a police strong suit.
 
 
+7 # reiverpacific 2011-11-12 10:41
If the cops can have video cameras built into their cars, why can't we reciprocate.
These authoritarian judges remind me of Roland Freisler, the notorious Nazi judge, who became Hitler's Reich Ministry of Justice and President of the Volksgerichtsho f (People's Court), which was set up OUTSIDE constitutional authority. This court handled political actions against Hitler's dictatorial regime by conducting a series of show trials of which the outcome -usually beheading, were pretty much a foregone conclusion!
Sound familiar and a bit creepy yet?
 
 
+5 # LibertyAlwaysinUS 2011-11-12 11:35
The Founding Fathers whom intellectually dishonest right wing Nazi snd Opus Dei supporters like Easterbrook, Janice Rogers, Scalia, Thomas, Alito, Roberts, Fence Sitter Black Irish Kennedy, Rejected Nazi Jeff Sessions from Alabama, Percy Anderson from LA,that clown Renchburg as Nixon referred to him, and all of their ilk do not understand the fabricated doctrine of Original Intent. Most cases are decided by the Ten Amendments which could never be Original Intents even for the Head Fascist Scalia and the Volohk Conspiracy at UCLA. Obama needs to show courage and appoint real civil libertarians like Turley, Erwin Chemerinsky, and a real civil libertarian federal judge from Houston Vanessa Gilmore. We want liberal judges and Justices not namby pamby wimps like Kagan and Sotomayor. We want Hope and Change not Despair and Status Quo, Obama. So far you are the Black Manchurian Candidate and no more. Give us what you promised and not just kiss the ass of Wall Street and the Big Banks. Are you a chameleon and a plant for the 1% or a real Champion of the People and not a foot soldier for Bill Gates, the Koch Bros, Jamie Diamonond at Citi Bank, JP Morgan, BofA which was great as Bank of Giannini, Wells Fargo, Murdoch, and all of the toxic waste that you have allowed to nuclearize in the US. Start indicting Wall Street. Fire Holder and Hire William Black or James Carville.
 
 
+5 # SOF 2011-11-12 11:46
Hello Police. The People Do Not Trust You. For good reasons...
 
 
+2 # Activista 2011-11-12 12:01
GREED + FEAR = PROFITS
 
 
+5 # Wilbur 2011-11-12 12:55
To finish my thought begun this morning [ran out of space], there is a profoundly chilling effect when public officials misapply the law, causing [forcing] citizens to hire legal counsel to prevent a misapplication of the law. This was true in both the Graber case from Maryland and the Glik case from Boston.

The 8/26/11 ruling of the 1st Circuit, affirming in Glik vs. Cunniffe a citizen's first amendment right to make a video recording on the Boston Commons with his cell phone, recited words from a 1986 Supreme Court case which seem pertinent: "...many governmental processes operate best under public scrutiny." The Court of Appeals concluded that the First Amendment protects the right of citizens, on public property, to openly film and record such matters of public interest.

For more on the Glik case, see a highly literate and excellent blog by the ACLU's Carol Rose at http://boston.com/community/blogs/on_liberty/2011/08/victory_for_liberty_and_the_ri.html
 
 
+4 # Pickwicky 2011-11-12 13:49
On the Police--with an apology to all policemen who are decent,truthful , and helpful-- we must face the fact that most who enter police work have a certain personality: one that craves a sense of brotherhood, of power over others, and has no shortage of potential explosiveness. As the Catholic priesthood attracts pedophiles, so police forces attract men on the edge of violence who like being empowered. Perhaps the nature of the priesthood can be changed to discourage pedophiles from joining, but the nature of police work requires a certain turn of mind. What to do? Film all encounters.
 
 
+3 # Activista 2011-11-12 14:28
"the fact that most who enter police work have a certain personality"
agree - these sicko are also in the courts, politics, military ...
Power trip in uniform ...
 
 
+2 # Andrew Chase 2011-11-13 13:31
"Just as every cop is a criminal...."

- Rolling Stones, "Sympathy For The Devil"
 
 
+1 # boudreaux 2011-11-14 10:33
They have the right to video us at any time when we are stopped for a suspious reason and that is ok? Turn about is fair play and without us videoing then how would we ever be able to show them the truth about what really happens.

Cops are human just like us and mess up at times and should be help accountible when they go over board and we all know that they do at times and w/o a video of their actions we are lost to the wind.

If I were ever able to video a crime I can assure you that I will try to be quiet about it and try to not let them see me video anything...
 

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