I can still vividly remember hearing the radio call go out. “Dispatch send me another unit I’ve got a problem. A guy is taping me.” I could hear the stress in the officer’s voice as he was on a traffic stop and since I was about a mile away I punched the accelerator and was there in a flash. As I rolled up I remember seeing the traditional traffic stop set up with the officer standing outside of his cruiser and the traffic violator in front of him. I was startled to see another car involved, parked in the middle of a five lane main route with another person prone out in cuffs. While responding I thought the person video taping the officer was the traffic offender, but actually it was another person who stopped in the road (not prohibiting the flow of traffic, pulling out a camera and began tapping the officer). The perpetrator went to jail that night charged with a host of misdemeanors and his camera was entered into evidence.
A few hours later I had a conversation with another officer about the incident. We had problems with what happened. Technically elements of our state law were violated, but did the suspect actions necessitate enforcement? How much did the suspect really interfere with the traffic stop? Was the officer really in fear for his safety or was this another case of contempt of cop? In the end we doubted the officer made the right call. He was known for being half-cocked. The offender pled to the offenses, which revealed another strange set of circumstances. The offender was “high on the list” for being hired by a local police agency. I guess in the end the incident kept another bad apple off the street.
Then vs. Now
The first video camera I bought sat on my shoulder like a rocket launcher. As we all know, technology has minimized video and audio capability to the point where the average citizen can have apps on their smart phones that the CIA would have loved just ten years ago. Today I tape people I don’t trust with my cell phone and send the conversation, time and date stamped to my email (I don’t recommend using your personal cell phone for government business). This minimization of technology is certain to continue and there are even cop shows out (“Police POV” for instance) that essentially gives the same perspective, but from the other way around.
Glik v. Cunniffe, No. 10-1764, 2011 WL 3769092 (1st Cir. Aug. 26, 2011)
It was only a matter of time. The United States Court of Appeals for the First District ruled that when Simon Gilk recording, Boston Police Officers arresting someone in a city park, that the act of recording the officers was protected by the First Amendment, usually. Gilk thought the officers were using excessive force and used his camera phone to record the event. He was arrested and charged with numerous crimes, one of which was a Massachusetts wiretap offence. Eventually the charges were dismissed and in 2010 Gilk filed a civil rights action stemming from the 2007 incident.
The opinion of the court had several significant notations. A few among them were:
1) It does not matter the video made by a private citizen rather than a recognized member of the media. Generally the media have had greater First Amendment protection. Seemingly the protections are expanded to citizens now in that circuit. Expect it to spread to others.
2) Advances in technology have blended this distinction between citizen and reporter. It is to easy to capture anything on tape and load it to YouTube almost instantly.
3) The right of the public to know what is happening is just as important as that of the media.
4) For those reasons, anyone can serve in the capacity of a reporter and therefore have stronger First Amendment provisions (think of “iReporter” segments from CNN).
Using Gilk to trouble shoot future events (remember as a cop I’ve been on video too and didn’t like it) we need to recognize this new judicial viewpoint.
1) Accept the old notion that we really do live in a fish bowl as cops and our privacy rights are practically nil when we are on the street. If they can see us and shoot us then they can tape us.
2) This ruling doesn’t give anyone, all the time in every situation the “right” to interfere with police actions. There are limits to the First Amendment also.
3) The courts have long recognized that cops need to be able to do their jobs, but it is up to us to articulate, clearly, how this person interfered with our job.
4) Start with officer survival tactical considerations. Are they to close? Blocking your view of assisting officers or threats to get a better video angle? Are they making statements to you that are causing your fear, such as threats or communicating with the suspect further aggravating the situation? This is just a start; figure it out.
5) Charge right, or don’t charge at all. In the Boston case this was not a Wire Tap case and the officers knew it.
I doubt I am the only person that thinks our country is at a generational turning point. We’ve witnessed more rioting across our country in the last six months than forty years. I see the beauty of the U.S. Constitution as being as flexible as a rubber band, but nobody knows how far it will stretch. It would be prudent and responsible on our part to contact the law director, prosecutor or police legal advisor and start having these types of discussions before you encounter seeing your bad side on TV (like I did).
About The Author:
Keith R. Lavery, M.A., CMAS, is a full-time criminal justice educator teaching at a public Career Center, University System of Ohio. He has facilitated and designed criminal justice, security, and law enforcement courses of instruction at the post-secondary level. Keith had a very diverse police career spanning nearly 20 years, working in urban and rural law enforcement settings with assignments ranging from patrol to specialized functions, to include HIDTA Drug Unit, CLANLAB Enforcement Team, SRT and Supervision. In 2008, Keith was awarded the Certified Master Anti-Terrorism designation from the Anti-Terrorism Accreditation Board. Academically, he has completed post-graduate course work dedicated toward a Doctorate in Education. Keith is currently the Law Enforcement Liaison for the Cleveland, Ohio, Chapter of ASIS International.