National Police Misconduct Reporting Project

Filming the Watchmen

Excerpt from a new paper, “Filming the Watchmen,”  from the Heritage Foundation:

Brandy Berning spent the night in a Florida jail because she used a cell phone to film a traffic stop on I-95. George Thompson of Fall River, Massachusetts, claimed that he was verbally abused, arrested, and locked up overnight for filming a profane police officer with a cell phone from his front porch. The officer was across the street in full view and within earshot of anyone who happened to be passing by his home.  Most recently, Florida police arrested and charged Lazaro Estrada with obstruction of justice for peacefully filming an arrest with his cell phone on a public street.

Why is this happening? Police are unhappy that people are using their cell phones—which often have video capabilities—to film police conduct. Some state statutes generally prohibit the recording or interception of oral communications unless all parties to the conversation consent. To prevent citizens from gathering and disseminating information about police conduct, police are relying on these statutes to arrest citizens who film police in public, even if those citizens have a right to be present in the locations from which they film.

The question arises: Are such filming and any subsequent publication protected by the First Amendment? If so, what can we do to better secure our rights?

This paper summarizes how federal courts of appeal have treated the filming of police officers in public. It then contends that there exists a First Amendment right not only to film police in such places, subject to reasonable time, place, and manner restrictions, but also to publish the content of those films.

Full paper here.  Still more here.

Bureau of Land Mgt Under Fire in Nevada

Sacramento Bee:

A Republican U.S. senator added his voice Wednesday to critics of a federal cattle roundup fought by a Nevada rancher who claims longstanding grazing rights on remote public rangeland about 80 miles northeast of Las Vegas.

Sen. Dean Heller of Nevada said he told new U.S. Bureau of Land Management chief Neil Kornze in Washington, D.C., that law-abiding Nevadans shouldn’t be penalized by an “overreaching” agency.

Republican Gov. Brian Sandoval pointed earlier to what he called “an atmosphere of intimidation,” resulting from the roundup and said he believed constitutional rights were being trampled…

“No cow justifies the atmosphere of intimidation which currently exists nor the limitation of constitutional rights that are sacred to all Nevadans,” the governor said in a statement.

Sandoval said he was most offended that armed federal officials have tried to corral people protesting the roundup into a fenced-in “First Amendment area” south of the resort city of Mesquite.

The site “tramples upon Nevadans’ fundamental rights under the U.S. Constitution” and should be dismantled, Sandoval said.

BLM spokeswoman Kirsten Cannon and Park Service spokeswoman Christie Vanover have told reporters during daily conference calls that free-speech areas were established so agents could ensure the safety of contractors, protesters, the rancher and his supporters.

Paul DeJesus Harassed for Filming

From Techdirt:

Apparently, the statement from a Lancaster, PA police spokesman that citizens are allowed to film on-duty police officers hasn’t made its way to the entire staff yet. Carlos Miller at PINAC reports that Paul Dejesus, the same man who had an officer walk away from taking an accident report because he was being filmed, was again approached by a police officer who demanded he stop filming because recording his voice “violated” Pennsylvania’s wiretapping laws.

Video at the link.   The officer threatens wiretapping charges and then disorderly conduct.

Note, however, that it is the officer that creates the disturbance around the DeJesus property.

After spotting Mr. DeJesus with his smart phone, the officer could have ignored him, or walked over and said, “Good evening folks, I saw you filming and just wanted to let you know that we received a call about ______ and that’s why we are here.  To check that out.  Have a good evening.”

H/T:  Instapundit

Federal Agents Riding to the Rescue to Protect Us

From the Wall Street Journal:

Peter Gleason was a psychiatrist who devoted much of his professional life to caring for what government officials call “underserved populations.” He would have been thrilled to learn that on Dec. 3 in New York, a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a ringing opinion that vindicated the conduct for which he was indicted and arrested in 2006.

Unfortunately, Gleason did not live to see this welcome reversal of the federal government’s crusade against him and the promotion of Xyrem—a drug widely used by physicians, including Gleason, to treat a number of medical conditions beyond what the federal Food and Drug Administration approved it for. Hounded for years, he saw his career and finances ruined by the relentless war waged against him by FDA bureaucrats and Justice Department prosecutors. Gleason committed suicide on Feb. 7, 2011.

Harvey Silverglate is a Cato adjunct scholar.

Another Victory for First Amendment and Recording the Police

From the Chicago Tribune:

The U.S. Supreme Court on Monday declined to hear an appeal of a controversial Illinois law prohibiting people from recording police officers on the job.

By passing on the issue, the justices left in place a federal appeals court ruling that found that the state’s anti-eavesdropping law violates free-speech rights when used against people who audiotape police officers….

Illinois’ eavesdropping law is one of the harshest in the country, making audio recording of a law enforcement officer — even while on duty and in public — a felony punishable by up to 15 years in prison.

Public debate over the law had been simmering since last year. In August 2011, a Cook County jury acquitted a woman who had been charged with recording Chicago police internal affairs investigators she believed were trying to dissuade her from filing a sexual harassment complaint against a patrol officer.

The government keeps losing in court on these matters, the main problem right now is a practical one (not so much a legal one)–when cops out on the street overstep their bounds and threaten people who have their smart phones out and are recording.   If bogus charges against a citizen-journalist are dropped, the cops likely face no adverse consequences–so it continues.

The Carlos Miller Case: Jury Says ‘Not Guilty’

Carlos Miller was arrested for filming the police.  Resisting the pressure to accept a “deal,” he risked more prison time simply by insisting on his right to a jury trial.  According to Miller, the prosecutor told the jury that Miller did not behave like a “real journalist” because a “real journalist” would have obeyed all police requests and orders.  Miller’s attorney responded to that argument with the following:

“In this country, when you’re a journalist, your job is to investigate.

Not to be led by your hand where the police want you to see, so they can hide what they don’t want you to see.

No, when you’re a journalist, a real journalist, it’s your job to go find the truth. As long as you are acting within the law as Mr. Miller was, you have the right to demand and say, ‘no, I’m not moving, I have the right to be here. This is a public sidewalk, I have the right to be here.’

He did his job. He has the right to do his job the way he sees fit. It’s not up to these prosecutors to tell anybody, much less an independent journalist, how to do their job. It’s not up to the police officers, it’s not up to a judge or the president.

In this country, journalists do their job the way they see fit.

What’s he describing is Cuba. What he’s describing is a communist country. The government says you can’t be here because I say you can’t be here.

And it’s infuriating to me that a prosecutor would try to get up here and try to convince you that just because a police officer says something, that he has to bow his head and walk away.

That is a disgrace to the Constitution of this country.”

Congratulations to Miller and his attorneys.  More info, including video from the trial, at the link above.

‘Inside the law enforcement bubble’

The Washington Post reports on the police and protestors outside the Republican National Convention:

TAMPA, Fla. — The protesters are on the outside, way outside, pelted by rain, then blasted by sun, then windblown, and they cannot get within shouting distance of the convention proper, or even close to what is formally known as The Perimeter. The Perimeter remains in the distance. They’re stopped at pre-Perimeter security fences and Jersey barriers.

And they’re surrounded. Even though they’re on the outside, they spend much of their time inside the law-enforcement bubble.

And:

Tim Rivers, 57, a retired engineer in Tampa, shouted through a fence at a compatriot: “We are in a cage! Your First Amendment rights are gone!”

It is disturbing that protestors are kept so far away from the convention in special “zones.”  Still, that’s a policy having less to do with the rank-and-file police than with the Tampa Police Chief, the Mayor, and the Governor.  Steve Chapman has related thoughts about the Bill of Rights here.

False Claims of Police Misconduct and Free Speech

Minnesota has a criminal law that punishes complaints of police misconduct that a person knows to be false.  The constitutionality of that law has been challenged and may now be on its way to the U.S. Supreme Court.

Here’s some background.  Melissa Crawley complained that an officer forged her signature on a medical release form at a hospital.  Police looked into the matter and concluded that Crawley fed them false information.  Crawley was charged under the Minnesota law and was later convicted by a jury.

On appeal, Crawley’s lawyers argued that the law was unconstitutional because it criminalizes false speech that is critical of the police but not false speech that favors the police.  The appeals court agreed and reversed Crawley’s conviction.

The case then moved to the Minnesota Supreme Court, which overturned the appeals court.

Justice Stras filed a dissenting opinion.  Here’s an excerpt from his opinion:

The point of the foregoing discussion is not to conclusively resolve the historical debate over the primary motivation animating the ratification of the First Amendment, but rather to highlight the indisputable principle that criticism of the government—and those who run it—is at the core of the First Amendment. The Supreme Court has recognized as much: “[c]riticism of government is at the very center of the constitutionally protected area of free discussion[, and] [c]riticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). Put differently, “[i]t is vital to our form of government that citizens and press alike be free to discuss and, if they see fit, impugn the motives of public officials.” Janklow v. Newsweek, Inc., 788 F.2d 1300, 1305 (8th Cir. 1986); see also Snyder v. Phelps, __ U.S. __, 131 S. Ct. 1207, 1215 (2011) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” (citation omitted)). The statute at issue here, Minn. Stat. § 609.505, subd. 2, punishes precisely the type of speech that is at the “very center” of the First Amendment: statements critical of government officials—in this case, peace officers. Cf. Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981) (collecting cases holding that police officers are considered public officials under the First Amendment).
Because subdivision 2 regulates within an area of core First Amendment expression, it risks chilling valuable speech unless it provides sufficient breathing space to prevent self-censorship or suppression. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). That is, in order to prevent the chilling of truthful speech on a matter of public concern—police misconduct—subdivision 2 must contain either “[e]xacting proof requirements,” Madigan, 538 U.S. at 620, such as a heightened mens rea, New York Times Co., 376 U.S. 279-80; a showing of specific harm, S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 539-41 (1987); or a showing of materiality, United States v. Lepowitch, 318 U.S. 702, 704 (1943); or contain some other “limitations of context” that help to ensure that “the statute does not allow its threat of . . . criminal punishment to roam at large,” Alvarez, 132 S. Ct. at 2555 (Breyer, J., concurring). Given the breadth and practical application of subdivision 2, the statute fails to provide sufficient breathing space for core First Amendment speech.
The key risk posed by subdivision 2—a criminal statute—is that legitimate, truthful criticism of public officials will be suppressed for fear of unwarranted prosecution. “[E]ven minor punishments can chill protected speech.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002); see also Alexander v. United States, 509 U.S. 544, 565 (1993) (Kennedy, J., dissenting) (“There can be little doubt that regulation and punishment of certain classes of unprotected speech have implications for other speech that is close to the proscribed line, speech which is entitled to the protections of the First Amendment.”). Thus, the mere threat of prosecution may cause some would-be government critics to refrain from voicing their legitimate criticism, “because of doubt whether [their statement] can be proved in court or fear of the expense of having to do so.”

That’s the dissent in the Minnesota Supreme Court.  The majority of the court upheld the statute and Crawley’s conviction.  Crawley’s lawyers are expected to ask the U.S. Supreme Court to hear this dispute.  Stay tuned.

H/T: Constitutional Law Prof Blog

“Too much public scrutiny and too much free speech”

The executive director of  North Carolina’s  Police Benevolent Association says there is a ‘conspiracy’ against the Fayetteville Police Department and is seeking a federal probe of those lodging complaints against that department.  Here’s an excerpt from an editorial from the Fayetteville Observer:

John Midgette, head of the N.C. Police Benevolent Association, has treated us to a doozy of a warm-up act. Let’s watch and see what else he’s got.

Midgette, presumably speaking for the organization and its membership, last week delivered himself of an oration against unnamed conspirators bent on undermining the Fayetteville Police Department.

Chief Tom Bergamine, who leaves the department June 18, wasn’t there to hear his jurisdiction described as awash in crime and “a cesspool of corruption and anti-police hatred,” and offered no immediate comment.

Only one specific emerged – a recent allegation, not supported by police videotape of the incident, by a black motorist who accused the officer who stopped him of having used a racist slur. But the gist of Midgette’s complaint seems to be that the department has been the object of too much public scrutiny and too much free speech.

“People can’t just scream ‘Fire!’ in a crowded theater and act like it’s protected speech,” he said. He’s right. They can’t. But who did that, and when, and when do we get to hear their names and a detailed account of their conspiratorial abuse of the First Amendment?

What did the conspirators do that drove officer morale to an all-time low – and who provided him that datum, anyway? In what way are officers finding it hard to stop heavily armed thugs with high-powered weapons from “preying on Fayetteville”?

Perhaps we’ll find these things out once Midgette has taken his allegations, whatever they are, to the U.S. Office of Civil Rights and demanded an investigation.

For now, we’re left to speculate – based on his extreme unhappiness with the City Council’s decision to heed the advice of its consultant – that this all harks back to the long-running controversy over “consent” traffic stops and the great racial disparities found in police stop data. Midgette seems to be implying that it was somehow wrong of public officials and city residents in general to concern themselves with those disparities.

That’s odd. Others, including officials with no dog in the fight, examined the data and found that concern entirely reasonable. Failing to address it could very well have exposed the city to costly lawsuits. The consultant’s recommendations, almost all of which Chief Bergamine has embraced, resulted from a city’s proper concern for its own interests.

Fayetteville is putting its house in order. If the Police Benevolent Association regards that as subversion, it’s getting bad advice from somewhere.