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Is Videotaping Cops Criminal Behavior or the Right of Every Citizen?

written by: Amy Carson•edited by: Rhonda Callow•updated: 9/12/2011

"Gimme the phone now!" That's a direct police officer quote from Narces Benoit's camera phone video shot in Miami in 2011. Benoit's phone was then confiscated and destroyed, but his quick thinking saved the footage. Read on to learn more about the controversy over recording public officials on duty.

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    benoit You’re out with friends, walking down the street one evening, and you notice a hubbub. There’s been a fender bender, or an altercation, and the police are there, arresting someone or someones.

    You get out your phone and begin recording video. After a moment, a police officer notices you. “Move along,” she orders. “And stop recording.”

    You’re a safe distance away from the scene, and you’re pretty sure you have a right to record what you see on the street. If you assert your rights, as others have before you, like them, you may be arrested, jailed and charged with a felony. The officer may tase you, confiscate your phone and erase its memory or worse, destroy it on the spot by crushing it into the sidewalk with their shoe.

    Do you assert your rights or obey the officer?

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    Many Public Servants Do Not Want You Recording Them

    May 12, 2011: Emily Good was arrested in Rochester, New York, for videotaping police officers. Good was standing in her yard at the time.

    May 31, 2011: Narces Benoit captured images on his cell phone of police shooting and killing a man in Miami Beach. Police demanded he turn over the phone and promptly smashed it.

    Benoit had removed the phone’s SIM card and put it in his mouth first. He later sold the shocking video to CNN.

    It’s not just passers-by and people on the street, either. Official news crews are being told to turn off cameras at the slightest hint of controversy or impropriety. On July 29, 2011, news cameraperson Phil Datz was arrested in Bohemia, New York by Suffolk County police for filming an arrest. The officer yelled at him to stop filming, scrutinized his press pass, and arrested him for “obstruction of governmental administration.”

    Obstruction is a common excuse for arresting -- and silencing -- filming of police officers and scenes. Even more commonly, however, police invoke wiretapping and eavesdropping laws to claim that the police officers’ rights are being infringed by being recorded without their consent. It’s illegal in 12 states to record someone without all parties involved consenting. However, all but two of these states have a privacy provision that provides protection for recording in public places -- if you’re speaking at a town hall meeting, for example, you don’t have a reasonable expectation of privacy.

    Massachusetts, however, only allows open recording of police. Recording police secretly is illegal in Massachusetts. And Illinois’ legislature passed the most draconian anti-recording law in the nation, specifically stating that it is illegal to record police under any circumstances.

    Are such laws even legal? Is charging someone with a felony for recording an arrest on your camera phone constitutional? That’s still up for debate. Illinois courts are expected to hand down a ruling in 2012 on a case the ACLU has brought challenging Illinois’ “No taping police under any circumstances” law on First Amendment grounds. The argument is that the law prevents citizens from exercising their First Amendment right to record what government officials do in public.

    And even in states without draconian recording laws, police often claim recording them is illegal although it is not. If you're "caught" shooting footage of police with your camera phone, you face arrest and confiscation or even destruction of your phone. It doesn't matter that in the end you'll be vindicated. All the officer cares about at that moment is stopping you from recording them, knowing they'll face little to no repercussions for their behavior.

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    Arrests and ... Convictions?

    Reported instances of police confiscating and destroying recording equipment like cell phones as well as arresting anyone daring to record them aren’t rare. My research turns up dozens and dozens of instances per year, and continually increasing as more of the public finds themselves carrying tiny video cameras in their cell phones with them everywhere they go.

    Arresting people for filming police, whether with their phones or with video cameras, is used more as a silencing tactic than for keeping the peace. The evidence for this is the lack of convictions in such arrests. Sometimes the cases are dropped soon afterwards without charges. More often the person is charged with a misdemeanor and ordered to appear in court; sometimes it’s a felony wiretapping charge. Cases that go to trial rarely win convictions.

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    Misconduct

    Video recordings of police on duty increasingly have an impact on how the law plays out. Cases where suspects “resisted arrest,” “attacked an officer,” or even “fell down,” very often turn out to actually be cases of police brutality when video evidence is produced. Whether or not such instances are isolated cases, it calls into question how strongly we should weight the word of the police against the word of the suspect when injuries during arrests happen.

    Perhaps the first such case involving video evidence was the Rodney King incident in 1991, when bystander George Holliday recorded King being severely beaten by several Los Angeles police officers (LAPD). While King was likely resisting arrest, according to portions of the videotape not often seen, the resulting assault was so violent that King suffered broken bones and teeth and numerous lacerations.

    It’s logical to presume that King would have been charged with resisting arrest and assaulting an officer had Holliday’s video not surfaced. While that case raised the specter of the validity of “resisting arrests” in suspects who show up at the police station bruised and bloody, the ubiquity of video recording equipment today has resulted in this backlash, as it were, of police against citizens.

    Good, Benoit, Datz, and more: Khaliah Fitchette, junior class president at University High School in Newark, New Jersey, was arrested and taken to juvenile detention for shooting video with her camera phone. She was released after police erased the video on her phone.

    Michael Allison, of Bridgeport, Illinois, faces 75 years for recording public officials with their knowledge, including a court reporter and the judge presiding over his appearance for a lawn ordinance violation. (Remember, Illinois’ anti-recording law is especially tough.)

    Motorcyclist Anthony Graber recorded his Maryland traffic stop and was charged with a wiretapping felony that carries up to 16 years in prison.

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    It's Only a Matter of Time

    Wiretapping and obstruction cases continue to either get quietly settled with fines or thrown out of court outright, but that’s no excuse for police arresting people under what are, the majority of the time, false or trumped-up pretenses, just for the crime of having a camera phone turned on in their presence. The lost work time, lost money, added stress and threat of jail time are something no one should go through for exercising their constitutional rights.

    You heard that right -- constitutional rights. The important decisions haven’t been handed down yet, but with the case in Illinois mentioned above along with other cases gaining momentum nationwide, it’s practically inevitable that a court will hand down a decision declaring recording of public officials protected by the First Amendment. One or more of those decisions will be appealed, but in the end, the constitutionality of recording public officials ought to become enshrined in case law.

    If it doesn’t, worry. Worry a lot.