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.