Patrol car cameras have bumpy reception from St. Louis police

ST. LOUIS • City police officers believe in-car cameras are being used against them, and they are trying to find ways to avoid driving cars equipped with them, according to union grievances.

Emails dated April 13 from Capt. Mary Edwards-Fears to superiors and underlings reveal officers' concerns that cameras — installed in about half of the city's 300 patrol division cars — make police vulnerable to second-guessing.

"We are missing critical evidence for our cases when we allow them to avoid using vehicles with cameras in them, for fear of being caught in a compromising position," Edwards-Fears wrote. "Your job as managers in the business is to assist your officers in following the rules and regulations, not assisting them in circumventing them."

At issue are two probationary officers investigated after a woman said they planted guns and drugs on her 16-year-old son. Video exonerated them of that claim but revealed that one struck the handcuffed teen, which led to the firing of both.

The grievance asks that they be rehired and given a disciplinary hearing. It says the department should have considered that the teen had pointed a gun at one of the officers, that probationary cops should not be partners and that other officers should have handled the suspect afterward.

Police-car cameras, typically faced out the windshield, have been around for more than 15 years but were slowly embraced by large departments because of the cost. They have a proven record of supporting good police work, exposing bad, and providing rock-solid evidence against DUI suspects and others.

Technology is moving toward tiny cameras attached to officers' uniforms, although the Las Vegas Police Protective Association has threatened to sue that department for not negotiating terms first, according to the Las Vegas Sun newspaper.

About a year ago, police here began using car cameras donated by the St. Louis Police Foundation, a private support group. Now, 140 district vehicles have them.

Jeff Roorda, business manager of the Police Officers Association, complained about inconsistent use of the recordings. "Officers should know what the cameras are going to be used for, when the cameras are activated and how they will be reviewed and what the discipline will be if you have a violation that results from the cameras," he said. "Right now, all that is in constant flux."

Police Chief Dan Isom dismisses the concerns as "growing pains." He said, "New technology and change is always difficult for an organization. If you talk to other departments, our growing process with this is consistent."

He said videos were valuable for training, evidence, protecting officers against false complaints and "to make sure people are following the protocol of the police department."

Isom said the number of officers disciplined over what supervisors have seen on videos is "very little."

In-car cameras caught Officer Jason Stockley brandishing a personally owned rifle at a drug suspect, who was later shot and killed by police Dec. 20. The department does not allow officers to carry personally owned rifles and still is investigating the matter internally.

Officer David Wilson was seen striking a handcuffed teenage suspect in January. He was criminally charged with assault in April, and an internal investigation is under way.

The union wants the department to draft a policy on how to use cameras for discipline.

Isom doesn't see a need: "I'm not going to draft a policy for those who violate our policy."

He said each of the nine districts may have a different approach.

Referring to sergeants in her command, Edwards-Fears' email says, "Each of you is responsible for viewing the in-car camera footage of all arrests, all pursuits and all shots fired incidents and anything of interest that could catch our superiors' attention."

The Police Officers Association president, David Bonenberger, is a Sixth District sergeant. He said he reviewed tapes to critique his officers, not discipline them.

He sees the point of having cameras, but not if they're going to be used for head-hunting.

Police unions elsewhere have pushed departments to draft policies that range from limiting cameras to monitor only what happens outside of a police car to outlining reasons why supervisors should review tapes.

In Renton, Wash., a city of about 90,000, police outlined a list of reasons supervisors need to document for reviewing tapes, including any use of force.

In Eugene, Ore., a city with about 156,000 people, the Police Employee's Association helped draft a policy that requires the city to notify and negotiate with the union about any changes.

Last month, Dallas police suspended a special unit's routine review of patrol car videos after officers complained of being targeted for infractions, such as speeding on calls to help fellow officers.

In the Illinois State Police, supervisors are required to randomly audit tapes to make sure policies are followed, said Trooper Mike Link.

St. Louis County police had about 100 camera-equipped cars from about 2005-10 but couldn't afford to keep them up after a federal grant ran out, Chief Tim Fitch.

He said supervisors there needed a reason for a review. "We don't want to play 'gotcha'," Fitch said. "That's how some departments play games. They have a video and say, 'Your report doesn't match what's in the video.'

"But in the heat of battle, in what we do every day, your memory isn't always that great, so it's important for the officer to view the video and make the video part of their report."

THE ROOKIES

Officers Jacob Fowler and Rory Bruce were not allowed to review the video during an internal affairs investigation in which the department alleges Bruce can be seen striking a handcuffed 16-year-old on Feb. 20.

Moments before, the teen pointed a gun at Bruce's partner, Fowler, who then fired a shot and missed him, according to police reports.

Isom said the officers and sergeant could have viewed the video right after the incident, but didn't.

Union leaders contend that Bruce didn't remember striking the teen or expect a disciplinary issue, so he had no reason to review the tape.

Bruce, 35, was charged in April with misdemeanor assault; both were dismissed from the force.

Addressing the incident, Edwards-Fears wrote that probationary officers should not be partners, "because the experience isn't there." She also said sergeants should keep any officer subjected to an assault away from the suspect.

"We failed in this case, and I am not proud of this loss."

She supports the firing, but wrote, "Unfortunately, the case was dismissed and the offender was released because of the officers' actions."

Bruce's attorney, Joseph Hogan, said Circuit Attorney Jennifer Joyce's office initially promised a copy of the video if he agreed to limit its release, but he was later told he could only see it in the prosecutor's office.

"That's not the way the world works," he said, likening it to refusing to turn over police reports or other key evidence.

Joyce said in a prepared statement that it is her office's policy to make surveillance tapes available for defense attorneys and defendants for viewing at her office only. Hogan has declined to view it that way.

Hogan filed a motion last week to try to force prosecutors to release the video, saying he should be allowed to view it at will, watch it with his client and enhance it.

In the prepared statement, Joyce's office responded: "It is Mr. Hogan's prerogative to file a motion. We will address this matter at a hearing where it is appropriate, rather than grandstand in the media."

A New First Amendment Right: Videotaping the Police

When protesters gather in Chicago this week to express their views about the NATO summit, people will be able to videotape the police and post videos of any police misconduct. Recording the police used to be illegal in Illinois. But this month, a federal appeals court ruled that a state wiretap law prohibiting it conflicts with the First Amendment.

A legal battle has been raging over whether people have the right to make video recordings of the police in public places. The video takers and their supporters insist that recording the police is citizen journalism protected by the First Amendment. But police across the country have insisted it is not — and have been arresting the video makers. The legal tide now appears to be turning decisively in favor of the right to take video of the police. This month, the video takers scored two big new wins — the ruling in Chicago and an important statement from the U.S. Department of Justice in a Baltimore case.

It is hard to believe, in this YouTube age, that taking video of people in public could be a crime. But the police are serious about not wanting to be recorded — and they have been making arrests to prove it. In 2010, Maryland resident Anthony Graber was charged with violating wiretap laws and threatened with as much as 16 years in prison for videotaping his own traffic stop. This month, twin teenagers in Mississippi said they were arrested and taken to jail for recording the police investigating a shooting at their apartment complex.

Eager as the police have been to declare this kind of recording criminal, the courts have been more skeptical. When Graber was prosecuted for making his video of the state trooper who pulled him over, the judge threw out the charges. Last summer, the Boston-based U.S. Court of Appeals for the First Circuit ruled that the police violated the First Amendment rights of Simon Glik, who was arrested for making a cell-phone video of police forcefully arresting a suspect on the Boston Commons. In March, Boston agreed to pay Glik $170,000 in damages and legal fees for infringing on his right to record the police.

This month’s new legal victories strongly bolster this emerging legal right. In the Chicago case, the Seventh Circuit Court of Appeals blocked the state from using a wiretap law — which prohibits audio recording of anyone without their permission — to arrest people who take video of the police in public. Using wiretap laws in this way, the court said, “restricts far more speech than necessary to protect legitimate privacy interests.”

Last week, the Department of Justice made its views on the issue known in a Baltimore civil lawsuit. A man named Christopher Sharp is suing the Baltimore police for destroying the video archive on his smart phone after he recorded officers arresting his friend. In a letter to the police department, the Department of Justice stated that the right of people to take videos of the police in public places is “firmly rooted in long-standing First Amendment principles.”

The main reason the battle over recording the police is so important — and so highly contested — is that videos like these get results. That was clear last November, when a video of a campus officer at the University of California at Davis casually pepper-spraying student protesters went viral, and the university was pressured to suspend the chief of police — who later resigned — and two officers. In another high-profile case, a New York City police officer who was captured on video shoving a bicyclist to the ground left the force and was later convicted of filing a false report about the incident.

The march of technology is the story of unintended consequences. Create a system to link the Defense Department’s research computers — the origins of the Internet — and you end up with Google and Facebook. When video capability was added to smart phones, and when YouTube was created, it is unlikely anyone was thinking of what it would mean for policing. But the impact is enormous. No police officer wants to be removed from the force because of a viral video. Technology, however, cannot do this alone. For video to keep the police honest, the law must protect the people who do the recording. When Simon Glik was arrested in Boston and Anthony Graber faced 16 years in prison in Maryland, it was not clear that the law would do this. But after the latest statements from the Seventh Circuit and the Department of Justice, a clear consensus seems to be emerging that the First Amendment is on the citizen journalists’ side.

Cohen, the author of Nothing to Fear, teaches at Yale Law School. The views expressed are solely his own.

L.A. Photo Activist Has Another Run In With Deputy Over Photography

Shawn Nee, who has a long history of confrontations with the Los Angeles County Sheriff’s Department over his right to take pictures in public, had another run-in with deputies on the subway.
The incident took place last October but Nee just went public with it on Friday.
Nee and another photographer were waiting for Occupy L.A. activists to arrive at the Wilshire/Normandie Metro station when a deputy approached him, informing them that they did not have the right to take photos inside the station if they did not have a “media pass.”
But it says the complete opposite on the Los Angeles Metropolitan Transportation Authority website:
Photography Guidelines
• Only permissible in public areas, proof of fare required in marked fare required areas (station platforms of all rail stations and the Metro Orange Line)
• No commercial photography without prior authorization and consent from Metro
• Hand held equipment only, no tripods are permitted
• No photography inside moving trains for privacy and safety reasons
• No flash photography, especially into oncoming transit vehicles (rail or bus)
• Photography must not interfere with passenger safety or movement at any time
While Nee asserted his right to take pictures inside the station, the deputy informed him that his main issue was that he didn’t want to be photographed because it was a “safety issue.”
Unknowing to the deputy, Nee was recording the entire encounter with his Vievu camera attached to his chest, which is a camera marketed towards law enforcement officers.
Nee has been using this camera for years and has managed to record many encounters unknowing to law enforcement officers, even though the camera is not hidden.
Adding to the irony of the encounter is that after the deputy informs Nee how he had no right to photograph them, he pulled out his own camera to record Nee and the other photographer.
Also adding to the irony is the fact that the MTA forbids photography inside moving trains for "privacy and safety reasons" yet they have cameras installed inside the trains recording everything.
Nee is currently a plaintiff in a lawsuit against the Los Angeles Sheriff’s Department over his famous altercation with another deputy who accused him of being in cahoots with Al-Qaeda because he was taking pictures of the subway turnstiles.
That incident prompted Rick Sanchez, who was employed by CNN at the time, to accuse Nee of provoking the deputy “hero.”
________________________________________
Please send stories, tips and videos to carlosmiller@magiccitymedia.com

Truck Owner Arrested For Photographing Cops; Image Deleted

Metropolitan Transit Authority police arrested a man for photographing them at Penn Station in New York City this afternoon – deleting his photo – before releasing him from a jail cell an hour later.
Clark Stoeckley was issued a summons charging him with “engaging in threatening behavior.”
“I was walking through Penn Station and I came across these MTA cops with semi-automatic weapons,” he said in a phone interview with Photography is Not a Crime.
“I stopped to take a photo and the cop came up to me and arrested me. I asked, ‘why am I being arrested?’
“’Because you’re a dick,’” the officer responded.
While in custody, Stoeckley asked the cop why he felt threatened by a cell phone when he was carrying a semi-automatic gun.
"'Because it could have been a phone gun,'" the cop responded.
Last year, MTA police arrested Joey Boots for shooting video of armed soldiers inside Penn Station because they also feared his camera was a weapon. Those charges were eventually dropped.
Having just been released from custody, Stoeckley was on his way home where he will attempt to recover the deleted image from his iPhone. I recommended PhotoRec, which helped me recover the footage that was deleted after Miami-Dade Police Major Nancy Perez arrested me during the Occupy Miami eviction.
Stoeckley, a 29-year-old artist, is notorious for driving the WikiLeaks Truck, a truck he painted to raise awareness for Bradley Manning, the U.S. soldier who is imprisoned for leaking classified documents to WikiLeaks.
Other than that, Stoeckley has no connection to Manning or WikiLeaks, the organization that has published or released to media all sorts of classified documents regarding the American wars overseas.
After Stoeckley was released this afternoon, he tweeted of his arrest, which prompted me to contact him for an interview. He sent me his number and when I called, the first thing I heard was a recorded message warning me that his phone was being monitored by the FBI.
The WikiLeaks Truck became a common fixture at Zuccotti Park during the Occupy Wall Street encampment.
At one point, police arrested him while distributing blankets to Occupy Wall Street activists when he refused to allow them to search the truck, an incident he caught on video.
When they impounded the truck, it ended up going missing.
Stoeckley had to get a judge to track it down. When he finally found it in an impound lot, a New York City police officer gave him a jump start because the battery had gone dead.
But when Stoeckley tried to video record the generous action, he was threatened with arrest for recording a public official on public property.
Check out that video here because it's not embedding below as I attempted.




Please send stories, tips and videos to carlosmiller@magiccitymedia.com.
CARLOS MILLER'S LEGAL DEFENSE FUND
I am immersed in a legal case where I not only want to clear my criminal charges stemming from my arrest in January, but I want to sue the Miami-Dade Police Department for deleting my footage, which I was able to recover.
My goal is to set some type of precedent to ensure this does not happen as often as it does today where cops simply get away with it.
So if you would like to contribute, please click on the "donate" button below and contribute whatever you can afford.

Connecticut Cop Arrested After Pulling Gun On Cop Who Photographed Him

Connecticut Cop Arrested After Pulling Gun On Cop Who Photographed Him
By Carlos Miller

Fellow officers thought it would be funny to photograph David Davis, a Connecticut railroad police officer, sleeping at his desk while on shift.
They probably didn’t expect Davis to wake up, pull out his gun and keep it pointed at the officer who had just taken his picture.
“No one’s taking pictures today,” Davis told John Freeman.
According to the Connecticut Post:
Freeman yelled at Davis to put the gun away, but Davis continued to track his movements with the gun pointed at Freeman's head and his finger on the trigger, police said. After Freeman yelled at Davis a second time, Davis put the gun back in its holster, police said. Freeman then left the office.
Police said Freeman reported the incident to MTA Internal Affairs. Following an investigation, Davis was suspended for two weeks. However, Freeman subsequently pursued the matter and the case was turned over to Bridgeport police.
The incident took place in February. He was arrested Friday.
Davis, 51, a Metro-North Railroad police officer, is now facing first-degree reckless endangerment charges.
Officer Freeman. If you are reading this, please send the photo to the email below, so we can all get a laugh.


Please send stories, tips and videos to carlosmiller@magiccitymedia.com.
CARLOS MILLER'S LEGAL DEFENSE FUND
I am immersed in a legal case where I not only want to clear my criminal charges stemming from my arrest in January, but I want to sue the Miami-Dade Police Department for deleting my footage, which I was able to recover.
My goal is to set some type of precedent to ensure this does not happen as often as it does today where cops simply get away with it.
So if you would like to contribute, please click on the "donate" button below and contribute whatever you can afford.

Citizen Counter-Surveillance of the Police? There's an App For That.

 Despite the welcome 7th Circuit decision in ACLU v. Alvarez on May 8 that directed a federal district court to enjoin the application of the Illinois eavesdropping statute to an ACLU police accountability program, citizens around the country remain vulnerable to arrest and harassment for recording audio and video of police in public spaces. Cases like Glik v. Cunniffe and Alvarez indicate that the tides are changing in favor of First Amendment protections of police oversight and, in Illinois, at least two county court judges have also found the Illinois eavesdropping statute unconstitutional.  Some, like the ACLU, have launched initiatives to publicly record audio and video of police conduct, and the Alvarez case was pursued by the ACLU specifically to allow ALCU staff to legally record police without fear of reprisal under the eavesdropping statute.  (Interestingly, this decision comes just as Chicago is bracing itself for violent protests during the NATO summit this weekend.)

Along these lines, many individuals have been using a suite of cell phone apps developed by open government activist Rich Jones to record audio and video of encounters with law enforcement officers.  Jones launched the OpenWatch.net project in January 2011, which now boasts three smartphone apps designed to secretly record citizen encounters with police officers.  Jones has also produced a version of his software for the ACLU of New Jersey to support their police accountability programs. In a recent interview with Jones, he told me that he launched the project to supply technology "to provide documentary evidence of uses and abuses of power… [as] part of a new wave of document-based journalism."

"If we're going to lose all of our privacy," Jones says, "then we're damn well going to get some transparency."

In practice, after downloading the OpenWatch or CopRecorder app to a cell phone, a user just needs to open the app and press a button to record audio (in the case of CopRecorder) or both audio and video (in the case of OpenWatch) through the camera and microphone built into their phone.  After hitting "record," the app disappears from view to hide the fact that the user is recording.  And when the user reopens the app to end the recording, they are asked whether they would like to upload the recording to OpenWatch’s public database.

Jones says he regularly receives thousands of uploads from app users, and currently receives about one upload worthy of posting online every three days – although, working alone, Jones has a large backlog and is currently seeking funding to allow him to filter through the data he is receiving. Many of the recordings are traffic stops, and most document perfectly harmless police/citizen interactions.  But Jones claims that other recordings he has received document evidence of "civil rights abuses at DUI checkpoints in southern California."

Jones also reports receiving emails from lawyers and police who are looking to use the recordings in trials. 

"The surprising thing is how many police officers are using the application," Jones says. "They use it to record their encounters with citizens so they can use it as evidence in court, or to expose internal procedure (cover their own asses)."

"Some cops have even emailed asking for help getting the media off of the phone, and one cop sent an extremely upset letter after realizing who we were and that he just sent us a confidential recording," he adds.

Liability for Using OpenWatch?

But despite some use of the apps from within the law enforcement community, Jones has also received very angry emails over the project and has been frustrated at his inability to find pro bono counsel willing to provide advice about the potential legal ramifications of the project moving forward.

One area of concern is the liability of users who make recordings with Jones' apps. While Jones was thrilled by the Glik decision, it is only binding authority in a handful of New England states and Puerto Rico. Thus, users of the OpenWatch apps remain potentially liable for violations of state wiretapping or eavesdropping statutes elsewhere.  Indeed, the courts in both Glik and Alvarez dealt directly with overt recording activities, and the fact that the OpenWatch app allows for covert surveillance (by hiding the app while recording is in progress) might be outside the scope of the decisions in those two cases. 

For instance, in Massachusetts and the eleven other states that have enacted "all party consent" wiretap laws, the use of the OpenWatch apps to record statements made by police potentially opens an individual up to criminal and/or civil liability for recording conversations without the consent (or at least knowledge) of all parties to the conversation. This risk is compounded in states like Massachusetts where the statutory prohibition extends to any secret audio recording, regardless of whether the conversation is occurring in a public space where there may be no reasonable expectation that the conversation is actually private.  (In Glik, the recording at issue was found not to be secret, as Glik's phone was held up in plain view of the officers and they were aware that he was likely recording them.) Similarly, the Illinois eavesdropping law at issue in Alvarez prohibits the recording of any conversation without consent of all parties "regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation." (See the Illinois law, or a great discussion by CMLP’s Jeffrey Hermes). 

This doesn't appear however to be an issue in the majority of states that have enacted one-party consent laws – because the consent of any party to a conversation, including the person making the recording, makes the recording lawful. But an individual covertly recording a conversation to which he or she is clearly not a party likely falls outside the protections of the various state eavesdropping laws.

These laws (and others) raise serious issues for potential users of the OpenWatch apps, and indeed OpenWatch itself, if the apps are used to covertly or secretly record police action as encouraged by the OpenWatch Project. Based on the current state of the law as evidenced by recent court decisions, it is important for potential or actual users of the system to understand their own state laws (and the potential fallout) before deciding to begin using such an application – especially when recording covertly – as the risk of arrest or harassment continues to loom large in a number of states. 

Liability for Hosting?

Another area of legal concern for OpenWatch is the project's own liability for users' actions. In particular, it is unclear whether the OpenWatch project would qualify for safe harbor under Section 230 of the Communications Decency Act (47 U.S.C. 230).  That section provides immunity to providers of an “interactive computer service” that publishes information provided by third parties.  Section (c)(1) states that, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 

An “interactive computer service” is defined, in section (f)(2), as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server….”  This definition would appear to cover the OpenWatch system, but the Act also includes a number of exceptions and does not protect against liability for content that OpenWatch creates or develops itself.

It is not entirely clear whether the OpenWatch Project's solicitation for users to upload recordings that potentially infringe various state laws, and the resulting decisions made in the process of filtering relevant files from others prior to posting on the project's website, could make the project a "co-provider" of the recordings rather than a passive host. 

What OpenWatch's Future Holds

When asked Jones about the future of OpenWatch, he says “We want to continue to produce technology which confronts the current notions of power, privacy and surveillance. We'd like to focus more on the developing world, where corruption is much higher (see our PTSN based Voice-Dropbox project), on disposable surveillance hardware, streaming technology, education (see our side project, Lecture Leaks) and expanding our user base."

"We're also working to produce a federated system of citizen media notary servers for verifying citizen media with the National Lawyers Guild," he adds. The servers would capture, verify, and store recordings being made during protests in realtime for litigation purposes. "Beyond that, just more data, data, data."

 The utilization of OpenWatch apps by the ACLU in their programs promoting police accountability and the right of citizens to record police conduct in public spaces, as well as the newly sanctioned ACLU program in Illinois (post Alvarez), indicate a positive shift towards stronger First Amendment rights of American citizens to work for government transparency and accountability.  Certainly, the OpenWatch Project has taken an aggressive stance on the right of citizens to demand transparency from their government and to protect First Amendment rights of citizens to record public conduct of government agents.  Efforts such as their recording apps and their collaborations with the ACLU and NLG are definitely pushing boundaries.  But while the wind after Glik and Alvarez appears to be blowing in favor of the right to record police in public, the battle is far from won.

 Bryce Newell is currently a Ph.D. student at the University of Washington's Information School and a Graduate Fellow of the Comparative Law & Society Studies (CLASS) Center. He is also a member of the California State Bar (inactive) and is currently producing, directing, and editing a documentary film about humanitarian response to migrant deaths along the U.S.-Mexico border

Police Efforts to Ban Citizen Taping Beaten Back by Department of Justice

Feds back ACLU in arguing that taping is necessary to prevent police brutality; some cops disagree

Depending on their perspective, U.S. citizens may feel as if they have wandered into one of the "police states" that litter cautionary literary tales like 1984.  Today in the U.S. police officers can arrest you for dancing or break down your door and arrest you and your family at gunpoint for whatever malicious wrongs your neighborhood cybersquatter has committed.  And then there's the growing levels of domestic surveillance -- warrantless wiretaps, cell phone data grabbing, GPS tracking, "national security letters", and more.  Audits have revealed that these Orwellian privileges can be and often are abused.

The Obama administration has drawn some flak for supporting some of these intrusions -- such as warrantless wiretaps and warrantless GPS tracking -- in the name of "fighting terrorism (the Obama administration was admonished by the Supreme Court on the latter issue).  Still, for supporting such zealous federal surveillance provisions, the Obama administration did take a rather progressive stand on Monday, looking to stomp out local and state officials efforts to ban civilians from taping on duty law enforcement officers.

I. Department of Justice -- Citizens Have a Right, Responsibility to Tape Cops

The issue of citizens taping the police is a thorny one -- particularly if you're a cop.  While some police officers support the practice, others claim it prevents their law enforcement abilities.  Whether or not the latter claim is true, it's clear that video tapes of U.S. cops brutalizing civilians [example] -- at times beating them to death [example] -- have placed some cops in a load of trouble when the videos found their way to YouTube or other popular sites.

Many police fraternities and police departments have fought to ban the "right to tape".  They argue that they don't need citizens to fight police brutality -- that they'll manage their own affairs internally.  Some departments have gone as far as to invading the homes of citizens who taped them operating on the street or imprisoning citizens who record them.

Some police argue that citizens taping them prevents them from doing their job.

The Baltimore Police Department (BPD) was one of the departments that fought to silence members of the public, seizing their cameras and trying to prosecute them.  But a lawsuit from the American Civil Liberties Union (ACLU) forced the department to rethink its procedures -- and pay a steep settlement to a citizen whose camera was seized.

While the BPD sent a letter to its officers "clarifying" that civilians had the right to tape, the Obama administration felt that effort was insufficient.  On Monday, U.S. Department of Justice Special Litigation Section chief Jonathan Smith wrote an admonishing letter [PDF] to the department.

In it he recalls how citizen taping helped bring justice in one famous incident of police brutality.  He comments, "A private individual awakened by sirens recorded police officers assaulting King from the balcony of his apartment.  This videotape provided key evidence of officer misconduct and led to widespread reform."

He adds "given the numerous publicized reports over the past several years alleging that BPD officers violated individuals’ First Amendment rights."

Bans on taping also violating the Fourth and Fourteenth amendment, according to Mr. Smith.

He concludes that the department needs to clarify the importance and right to civilian taping, which he argues is necessary to "engender public confidence in our police departments, promote public access to information necessary to hold our governmental officers accountable, and ensure public and officer safety.

II. Letter to Attorney General May Have Spurred Response

The letter comes in the wake of a letter from several journalistic and civil rights organizations to U.S. Attorney General Eric Holder, pressing him to crack down on local efforts to ban taping. 

The groups write:

The First Amendment has come under assault on the streets of America. Since the Occupy Wall Street movement began, police have arrested dozens of journalists and activists simply for attempting to document political protests in public spaces. While individual cases may not fall under the Justice Department’s jurisdiction, the undersigned groups see this suppression of speech as a national problem that deserves your full attention.

The alarming number of arrests is an unfortunate and unwarranted byproduct of otherwise positive changes. A new type of activism is taking hold around the world and here in the U.S.: People with smartphones, cameras and Internet connections have been empowered with the means to report on public events. These developments have also created an urgent need for organizations such as ours to defend this new breed of activists and journalists and protect their right to record.

The "Occupy Wall Street" movement has been fought by numerous state and local governments and become a crucial censorship and civil liberties battlefield in the tech industry.

III. Court of Appeals Forbid Chicago From Suing ACLU or Banning Taping

More pressure also came earlier this month when the U.S. 7th Circuit Federal Court of Appeals in Chicago banned the city from suing the American Civil Liberties Union from audio taping officers on the job.  No, you didn't read that wrong -- in an ironic twist Chicago tried the bold move of turning the tables and suing the ACLU over taping.

In its ruling, the court wrote, "The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests."

The victory came by a narrow 2-to-1 margin. 

U.S. Circuit Judge Richard A. Posner -- the lone appellate justice who voted to dismiss the ACLU's countersuit -- acknowledged that taping was "more accurate" than relying on recalled conversations, which are often ruled unreliable evidence in court.  But he argued allowing civilians to maintain accountability via taping violates officers’ rights to privacy and could hurt officers’ ability to "perform their duties".  He writes, "These are significant social costs for weighting them less heavily than the social value of recorded eavesdropping."

Chicago Judge Richard Posner argues that taping cops brutalizing citizens prevents the officers from "doing their job" and invades their privacy.

In response to Judge Posner's minority criticism, the ACLU argues that the only "duties" taping prevents would be orders to brutalize citizens.  The Illinois branch's legal director, Harvey Grossman comments on the victory, "In order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and their agents -- especially the police."

Much like the controversy over corporate intrusions of individual home networks and data mining, the debate over bans and prosecution for civilians who tape cops is unlikely to go away.  It is an issue that divides cities, courts, local officials, and even the police officers themselves.  But much like the issue of corporate surveillance, the Obama administration appears to be increasingly throwing its weight behind a pro-civil liberty stance on this issue, even as it pushes what some would call an anti-civil liberty stance on federal surveillance.

Other appeals courts have issued similar rulings defending the "right to tape".

IV. Both Baltimore and Chicago Have a History of Police Brutality

To put this debate in context, it is important to note that both the Chicago Police Department and the Baltimore Police Department have a reputation for police brutality.

The BPD is under scrutiny for spending $10.4M USD in the past three years ($3.5M USD annually) to defend its officers against allegations of brutality and wrongdoing.  This week the latest in a string of internal affairs investigations of the department led to the suspension and criminal arrest of a BPD officer.

Chicago also has spent millions to defend allegedly crooked cops, keeping them on its payroll.  Citizens of Chicago were protesting in the streets this week in the streets over alleged police brutality.  While not all locals are fans of the protests, some argue it is necessary.  An anonymous resident told Fox News Chicago, "I'm glad they got a march because the police are crazy out here.  They come out here roughing us up ... sending innocent people to jail."

Chicago has nearly 700 active cops with 10 or more reports of brutality or misconduct filed against them.

The Chicago PD has faced 441 citizen lawsuits and paid out $45M USD in damages over the past three years.  The city has successfully fought to prevent the release of the names of 662 cops who each had 10 or more complaints of misconduct or brutality filed against them.  Most of these cops remain active and prowling the streets.

Video alleging police brutality in Stone County could lead to several civil lawsuits, one defamation lawsuit is already filed

The deputies accused of using excessive force filed a defamation lawsuit. The White family plans to file a lawsuit against the deputies.

STONE COUNTY, Mo. - A video that accuses two Stone County deputies of police brutality is grabbing the attention of civil attorneys as well as thousands of online viewers. The two deputies seen in the video, Taylor Jenkins and Brandon Flack, have filed a defamation lawsuit against the three people they arrested.

According to their attorney, Dale Wiley, those three people, Jessica, Jordan and Donald White plan to sue the deputies as well. KSPR News asked Wiley for an interview earlier this week. He originally agreed but changed his mind because he says the family is filing the civil lawsuit.

“This all started with a traffic stop,” Stone County Sheriff Richard Hill said. On the night of May 5 around 11:35, a deputy pulled over a woman and a man with a warrant for his arrest. The driver of that car pulled into the end of the White family's driveway in Crane. “They slowly made their way up to the house where we were,” Levi Cook said in an interview posted on the website www.stonecountypolicebrutality.com. “When they got up there they were yelling vulgar language. They told Jordan to back up and Jordan says ‘I haven't moved’ then the cop violently took him down.”

Hill says it was the White family that cursed at officers. “They used foul language toward the deputies telling them to get off their property. He was in the middle of a traffic stop. He is going to complete his stop,” Hill said. “He tried to explain that to them but they kept coming out of the house to the point the deputies were outnumbered.”

According to a website registered to Wiley, when deputies arrested Jessica, Jordan and Donny White they did not have probable cause or a search warrant. “Why he (Donny White) was cuffed they were kicking his face in the pavement him,” Cook said. “There was a big pile of blood and they tazed him multiple times while he was handcuffed.”

The sheriff says the deputy did not deploy the two prongs of the Taser instead he applied what's called a "dry stun." Attorney Richard Crites is representing the deputies in a defamation civil lawsuit. During our interview, Crites offered to dry stun himself. “A dry stun is pain compliance,” Crites said. “It hurts.” After Crites “dry stunned” his own leg, he said “big deal.”

According to the White's attorney, "Donny White is subjected to a vicious prolonged Taser attack, despite being handcuffed and being face down on the ground. The deputy continues his sadistic torture ignoring Donny's cries begging the deputy to stop." In the online video a timer is seen on the bottom of the screen that appears to portray the length of the dry stun. “That clock wasn't attached to a Taser,” Crites said. “He presupposes that for that period of time that person is being dry stunned.”

According to the White's attorney, “Jessica White is smashed into the ground by a deputy where she tore her MCL as a result of the sheer brutality of the attack, after she tried to protect her father-in-law from being savagely assaulted by the deputies.”

“She reacted because she was drunk. Alcohol and stupidity go like bacon and eggs,” Crites said. “I don't care what Dale Wiley says you don't have an excuse to go up and hit somebody in the head that's a cop.”

According to the White family's attorney, Jordan white was kicked in the genitals by one of the deputies. Hill says if you look closely at the video you will see the officer stepped over the man which caused a shadow on the man's groin. The dark video will likely be played for judges in both civil and criminal courts.

No disciplinary action has been taken against the two deputies involved in the arrests. Jessica White is a member of the Crane Board of Aldermen and no action has been taken against her by the city either.

Hill says the incident is under investigation and he will ask an outside agency to take a look at the evidence. Wiley says he is working with civil attorneys to file a lawsuit on the family’s behalf. In a written statement sent late Wednesday, Wiley said his clients were not intoxicated. Wiley says the video was compiled and does not contain any missing pieces. Hill says the video was edited to use the “power of suggestion” to tell people what they would see next.

Justice Dept. Defends Public’s Constitutional ‘Right to Record’ Cops

As police departments around the country are increasingly caught up in tussles with members of the public who record their activities, the U.S. Justice Department has come out with a strong statement supporting the First Amendment right of individuals to record police officers in the public discharge of their duties.

In a surprising letter (.pdf) sent on Monday to attorneys for the Baltimore Police Department, the Justice Department also strongly asserted that officers who seize and destroy such recordings without a warrant or without due process are in strict violation of the individual’s Fourth and Fourteenth Amendment rights.

The letter was sent to the police department as it prepares for meetings to discuss a settlement over a civil lawsuit brought by a citizen who sued the department after his camera was seized by police.

In the lawsuit, Christopher Sharp alleged that in May 2010, Baltimore City police officers seized, searched and deleted the contents of his mobile phone after he used it to record them as they were arresting a friend of his.

Last year, the Baltimore Police Department published a General Order to officers explaining that members of the public have a right to record their activity in public, but the Justice Department said in its 11-page letter this week that the order didn’t go far enough, and pointed out several areas where it should clarify and assert more strongly the rights that individuals possess.

The right to record police officers in the public discharge of their duties was essential to help “engender public confidence in our police departments, promote public access to information necessary to hold our governmental officers accountable, and ensure public and officer safety,” wrote Jonathan Smith, head of the Justice Department’s Special Litigation Section.

Smith cited the 1991 videotaped assault of Rodney King while he was being beaten by law enforcement officers as an incident that “exemplifies this principle” of public oversight.

“A private individual awakened by sirens recorded police officers assaulting King from the balcony of his apartment,” Smith wrote. “This videotape provided key evidence of officer misconduct and led to widespread reform.”

He noted that the issue was particularly important in Baltimore, “given the numerous publicized reports over the past several years alleging that BPD officers violated individuals’ First Amendment rights.”

The Justice Department’s interference in the local civil case was surprising yet significant in that it put not only Baltimore but also every other city police department around the country on notice that interference in such recordings was unconstitutional. It was sent to Baltimore days after several media and civil rights organizations sent U.S. Attorney General Eric Holder a letter insisting that the Justice Department take action against agencies that arrest people who record officers.

“Since the Occupy Wall Street movement began, police have arrested dozens of journalists and activists simply for attempting to document political protests in public spaces,” the letter to Holder stated. “A new type of activism is taking hold around the world and here in the U.S.: People with smartphones, cameras and Internet connections have been empowered with the means to report on public events.”

While individual cases didn’t necessarily fall under the Justice Department’s jurisdiction, the letter acknowledged, the suppression of speech was a national problem that had to be addressed at the federal level.

“Freedom of speech, freedom of assembly and freedom of access to information are vital whether you’re a credentialed journalist, a protester or just a bystander with a camera,” the organizations asserted.

In the document he sent to Baltimore, Smith said that, except under limited circumstances where a person recording police activity engaged in actions that violated the law, jeopardized the safety of a police officer, a suspect, or others, or incited others to violate the law, police officers should not interfere with a recording and should never seize recording devices without a warrant. They should also be advised “not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices.”

Policies should prohibit officers from destroying recording devices or cameras and deleting recordings or photographs under any circumstances, Smith wrote.

DOJ seeks to tighten Baltimore policy on recording police

The U.S. Department of Justice isn't satisfied with the Baltimore Police Department's recently issued orders on citizens' right to record officers.

Jonathan Smith, chief of the special litigation section of the Justice Department's Civil Rights Division, filed an 11-page letter with the court this week in the case of a Howard County man suing police for allegedly deleting videos from his cell phone after he recorded an officer arresting a woman at the 2010 Preakness. Since the suit was filed, police say they have drafted new guidelines and implemented training to instruct officers that citizens can record officers' actions. A settlement conference is scheduled for May 30.

In his letter, however, Smith said the new police policy still does not adequately protect individuals' constitutional rights in some areas. It should be more clear in prohibiting the deletion or destruction of recordings "under any circumstances," Smith wrote, and it does not define what constitutes the "public domain" where recordings can take place.

The policy also should instruct officers "not to threaten, intimidate or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or other recording devices," Smith wrote.

The case is believed to be the first where the Justice Department has weighed in on citizens' right to record police officers, an issue that has exploded in recent years with the growing prevalence of camera phones.

The issue has grabbed headlines several times in Maryland, perhaps most notably in 2010 when a motorcyclist, Anthony Graber, was charged in Harford County with videotaping on a helmet-mounted camera his interaction with a state trooper who had pulled him over at gunpoint for speeding.

Harford County prosecutors filed charges against Graber, and state police raided his home after the video was posted on YouTube. The ACLU successfully defended Graber against criminal charges related to the taping, and the case sparked debate about Maryland's strict wiretapping laws and issues of recording law enforcement officers in public places.

The Maryland attorney general's office later issued an opinion advising police agencies that people have a right to record officers and that most interactions between police and the public cannot be considered private.

The ACLU is helping Sharp in his case. They say officers stopped Sharp and erased his videos, including many of his young son, after he declined to surrender his cell phone as "evidence." He had been recording a May 2010 incident involving a friend, Anna Chyzhova, who was arrested for striking a patron at a ticket window at Pimlico Race Course.

Police dispute the ACLU's allegation that what happened to Sharp constitutes a pattern within the police department, and have said that their attempts at reform are sufficient.

"The BPD is, to my knowledge, among a select few police departments in the nation that have promulgated a general order regarding the issue of video recording police activity," wrote Deputy Commissioner John P. Skinner in a Nov. 14 sworn statement.

The city's Fraternal Order of Police chapter has expressed concern that the new efforts could jeopardize officer safety. A video was posted to YouTube recently of a man hovering over an officer as he detains another man, and the man recording questions the officer's actions.

"A lot of cops are afraid of doing anything to anyone if they're holding a cell phone or a camera," President Robert F. Cherry said. "An officer making an arrest never wants anyone to get too close to them. It's for their safety and for the safety of the person they're arresting.

"I think our guys are confused right now," Cherry said. "If this guy didn't have a camera in his hand, you think the officers would've let him get so close? He can videotape from across the street."

The DOJ in its letter says police need to better define when an individual's actions amount to interference with police duties, and highlights the recent news stories. Smith said citizens are entitled to express criticism of officers, even curse and make obscene gestures.

And he says the current policy doesn't make clear under what circumstances a citizen could be considered to be interfering, language that Smith says "encourages officers to use their discretion in inappropriate, and possibly unlawful, ways." But he appears to offer no suggestions on what the policy should say instead.

Complaint Against LAPD’s Paul Espinoza Sustained

LAPD cop tells photog not to photograph him because he is a "citizen of this country"

Los Angeles photo activist Shawn Nee has once again demonstrates the importance of wearing a video camera around your neck when photographing police.
Last year, Nee made national headlines when he videotaped a Los Angeles Sheriff’s deputy who had detained him for taking pictures inside the city’s subway system.
The deputy accused him of taking photos of the subway system in order to sell them to Al Qaeda. The deputy never noticed the Vievu camera hanging in full view around Nee’s neck.
Nee posted the video on his site, Discarted, and CNN’s Rick Sanchez picked up to the story, only to side with the deputy.
Now Nee has posted another video of an incident involving a Los Angeles police officer who did not want to be photographed making a traffic stop on a public road in broad daylight.
The cop tells Nee that he did not have the right to photograph him because he is a “citizen of this country.”
He also informed Nee that he was in the Marine Corps for a few years “getting shot at for you.”
So in other words, he’s willing to take a bullet for Nee but not willing to allow Nee to express his First Amendment rights.
The more the cop talks, the more he appears to be suffering from Post-Traumatic Stress Disorder because he keeps repeating that he is a citizen of this country and makes references to living in the desert.
“I spent my goddamn ass two years in the desert and I have to hear from your fruitcake ass,” the cop tells him.
You have to wonder if the cop would have come across more professional had he known he was being videotaped at the time.
The irony of this story is that Nee wear a Vievu camera around his neck, which is a company that targets law enforcement officers with their products.
A while back, my pal Eddie North-Hager contacted them to see if they wanted to advertise on this site. But they took one look at my site and decided it was “too controversial” for them.

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Photographer Suing L.A. Sheriff's Dept. Detained Again For Photographing Deputies

A pair of bullying Los Angeles sheriff’s deputies detained a photographer who snapped their picture on Hollywood Blvd, accusing him of all kinds of false crimes before handcuffing him, then searching through his camera bag without consent.

Shawn Nee – who already has a pending lawsuit against the sheriff’s department for violating his rights as a photographer – once again captured the incident on his Vievu camera, exposing a disgusting show of brute intimidation.

The deputies first told him it was against the law to take their photo.

Then they told him it was against the law to photograph a couple of underage girls they were chatting up.

And then they told him it was against the law to walk down the street without identification.

Obviously the dumb asses didn’t realize they were being recorded the entire time.

The Vievu was attached to his camera bag, which was left strewn on the sidewalk for several minutes after they walked him handcuffed to their patrol car.

One of deputes calls Nee a “retard” seconds before the other deputy discovers the Vievu attached to the camera bag.

They end up turning the camera off, then releasing him about 15 minutes later with no citation or charges.

It is Nee’s second run-in with the sheriff’s department since the lawsuit was filed in October, setting the stage for what could be a significant payout once it reaches trial by August of next year.

This incident took place in February, but Nee’s attorney advised him against posting it until now.

"There was a lot said to me during the detainment that was not captured by the camera," said in an email Sunday morning.

"But one thing the second officer said to me right after he took the cuffs off was, 'You know why we did this? You know why we did this, right.'"

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I was detained again recently (actually handcuffed and placed in the patrol unit) in Hollywood while photographing some people I’ve been following for a couple of weeks. My account of what happened, along with my footage (which is securely online already and stored on multiple hard drives that are not at my residence), will be released in the near future, but the experience has motivated me to finally comment on some letters I received in November 2010 from LAPD’s Chief of Police Charlie Beck and Paul Espinoza—the Northeast Patrol Division officer who unlawfully detained me because I photographed him and his partner performing a traffic stop on Hollywood Boulevard in February 2010.

The first paragraph of Chief Beck’s letter states the following:

An investigation into your complaint that was reported on February 21, 2010, regarding the conduct of an employee of the Los Angeles Police Department has been completed. The investigation has gone through several levels of review, including myself and the command staff of Internal Affairs Group. Your allegations that an officer was discourteous and unlawfully detained you were classified as Sustained. This means the investigation determined that the act alleged occurred and constitutes misconduct. An appropriate penalty will be imposed; however, Penal Code Section 832. 5 precludes me from disclosing the specific penalty.

And Paul Espinoza’s apology letter says:

I am the officer with whom you had contact on February 21, 2010. You should know there was a complaint lodged against me and I am sure you will be informed by the Department that complaint has been sustained. I wanted to write you a personal letter to apologize for my actions on that day. The Department has provided me training and I assure you I will handle similar situations in the future much differently. I am very proud to be a Los Angeles Police Officer and will do my best to serve you and the community to the best of my abilities in the future.

I hope the next time we meet it is under better circumstances. Again, please accept my apologies.

When I first received the letters I was initially pleased and certainly felt vindicated—especially towards my harshest online critics who inaccurately claimed that I was never detained and should have waited for the supervisor to arrive to say whatever it is that they thought I should have said to him.

Well, as all will know now, as some of us already knew then—I was unlawfully detained and treated disrespectfully. It’s that simple, and for full-brained people it really isn’t all that hard of a reality to grasp once you see the video.

As for the people who criticized me for not sticking around to speak to the supervisor, what they may not realize is the fact that speaking to a supervisor might well not resolve anything. More important, I don’t need to complain to Espinoza’s superior at the time; I can complain by filing a complaint with LAPD later. The two do not go hand in hand. Which, are both very good reasons why I left.

This was not my first time being detained, and I understand how the detainment and complaint process works. Plus, I have a lawyer friend who I can contact when I need advice or a legal question answered.

So once all the Monday-morning shutterbugs decide to stop taking family portraits, studio shots of fruit and martini glasses, and macro-shots of flowers and bugs and get their detainment cherry popped for taking legal pictures in public (which are decent enough to share with the rest of the world), then I’ll listen to what they have to say.

Sorry to digress, but all things must be addressed.

Then I read the letters again and thought about the outcome a little more. What did they do to make sure Espinoza wouldn’t do something like this again? And why does California Penal Code Section 832.5 (as well 832.7) prevent me and the public from knowing Espinoza’s “appropriate penalty”? For all I know, Espinoza’s appropriate penalty was to write a forced apology letter because he was caught on video screaming about his First Amendment rights, while at the same exact moment derailing my constitutional rights.

I should have the right to know Espinoza’s penalty, and so should you. We have the right to know the complaint history against all law enforcement officers in this country. This should be easily accessible information, rather than locked up and hidden from public scrutiny.

Penal codes such as 832.5 and 832.7 (which prevent LAPD from releasing information even about complaints that were determined valid), should not exist because all they do is raise credibility issues within the confines of law enforcement and stir contempt throughout the public.

We need to change this.