Despite court rulings, people are still getting arrested for recording on-duty cops

By Radley Balko

The Associated Press reports that police in Chicopee, Mass., have arrested and charged a woman for allegedly recording her arrest with her cellphone surreptitiously.

When you see one of these stories, please remember that it is perfectly legal to record on-duty police in every state in the country. That includes states that require all parties to a conversation to consent in order for that conversation to be recorded. Those laws all also contain a provision that the non-consenting party has a reasonable expectation of privacy. So far, every court to rule on this issue has found that on-duty cops in public spaces have no expectation of privacy and that recording them is protected by the First Amendment. (The U.S. Supreme Court has yet to weigh in on the matter.) In nearly all cases, the charges are eventually dismissed. (The exception may be if you’re arrested under some broad, catch-all law such as “interfering with a police officer” or disorderly conduct. But even those charges don’t usually stick.)

But Massachusetts is the one state where the right is still just a little bit ambiguous. At one time, some of the state’s courts did allow for citizens to be arrested for recording cops under the state’s wiretapping law (which, again, required all parties to consent before a conversation could be recorded). Illinois also once had an even more onerous law, but it was struck down by the U.S. Court of Appeals for the Seventh Circuit in 2012 on First Amendment grounds.

In 2011, the U.S. Court of Appeals for the First Circuit issued a similar decision. The court allowed Simon Glik’s lawsuit against the police officers who arrested him for recording them to go forward, again finding a First Amendment right to record on-duty law enforcement. But in that case, Glik was recording the officers openly. The court’s ruling applied only to that case, leaving open the possibility that someone could still be arrested for making a surreptitious recording of an on-duty cop. And that’s what happened in this latest case.

If this case gets to the First Circuit, I suspect this charge will also be thrown out. It’s notable that the Glik decision didn’t even deal with whether there is a legal right to record police in Massachusetts. It dealt with whether cops who illegally arrest someone for recording them should be protected by qualified immunity. In order to get into court against a police officer, you have to demonstrate not only that the officer violated your constitutional rights, but also that the rights violated were well established at the time. (Perversely, this provides a financial incentive for police organizations to keep cops in the dark about the latest court decisions with respect to constitutional rights.)

So while the First Circuit ruling in Glik didn’t apply to surreptitious recording of police officers, it did find that not only is the right to record on-duty police permitted, it’s a well-established right that police should be aware of by now, and that if they violate that right, they can be sued for doing so. It seems unlikely that the same court will then turn around and uphold a separate arrest simply because the woman didn’t tell the police she was recording them.

If I lived in Chicopee, however, I’d wonder why this woman was charged for allegedly recording her arrest in the first place. Prosecutors have lots of discretion about when to charge someone and about what charges to bring. They are under no obligation to charge every person who breaks every law — it would be impossible for them to do so. And there’s certainly no obligation to latch on to the narrowness of a court decision that otherwise indicated a First Amendment right to record police as an opportunity to charge someone for doing just that, simply because she might fall slightly outside the scope of that particular ruling. Just because the courts haven’t yet ruled that police and prosecutors can’t do something doesn’t mean it’s something they should do.

So if I lived in Chicopee, I’d want to know why Hampden County District Attorney Mark G. Mastroianni charged this woman. Does he believe it should be illegal to record the police? And if so, why?

DAWUD WALID: MORE TECHNOLOGY SHOULD BE DEPLOYED TO DETER POLICE MISCONDUCT

Metro Detroit has always been one of the more notorious areas in America for police misconduct and brutality. In my parent’s generation, there was systematic brutality and racial profiling, from the Detroit Police Department’s notorious Stop the Robberies, Enjoy Safe Streets (S.T.R.E.S.S.) unit and routine harassment of black men driving west of Wyoming St. by the Deaborn Police during the era of Mayor Orville Hubbard.

Since then, we’ve had numerous events ranging in severity and media scrutiny, from the fatal beating of Malice Green in 1992 by Detroit Police officer Larry Nevers, to Grosse Pointe Park Police suspending five officers last year after it was revealed that a black man with diminished mental capacity was made to make ape sounds while in police custody.

Last week, dashcam video was made public regarding an incident in which a Dearborn Police officer is seen kicking an unarmed Lebanese immigrant who was being restrained on the ground. The man who was kicked multiple times barely speaks English and has diminished mental capacity, similar to the gentleman who was humiliated last year in Grosse Pointe Park.

These incidents, spread across decades, makes one wonder if there’s a greater law enforcement culture issue at hand.

Sure, there are many honorable officers serving in our region and being in law enforcement is never an easy task. However, the reflex in which police chiefs have to defend their officers, seemingly at all costs, helps perpetuate actions such as what took place in Dearborn.

But thank God for technology.

We can lawfully take smartphone video of officers in action, and many police vehicles are outfitted with dashcams, which pick up audio and video of police interactions.

All officers, as public servants, should be mic’d at all times while on duty. Officers’ interactions should be public record, except for detectives investigating sensitive cases and/or taking official statements of witnesses to crimes. Every sheriff and police officer’s car in Michigan should be compelled to have dashcams.

For many people, behaviors do not change without consequences. Greater opportunities to scrutinize the behaviors of law enforcement officers may serve as a deterrent against police misconduct.

Apple Helps Cops Hide Police Brutality / Stop Phone Filming

May 12, 2014 by Jack Blood  

Here is the link to the patent which Apple holds for this technology.

The rapid emergence of smart phones with high definition cameras leads to consequences for law-breaking cops.

Recently, law enforcement throughout the country has been trying to pass laws that would make it illegal to film them while they’re on duty.

But Apple is coming out with a new technology that would put all the power in a cop’s hands.

 Apple has patented a piece of technology which would allow government and police to block transmission of information, including video and photographs, from any public gathering or venue they deem “sensitive”, and “protected from externalities.”

¬In other words, these powers will have control over what can and cannot be documented on wireless devices during any public event.

And while the company says the affected sites are to be mostly cinemas, theaters, concert grounds and similar locations, Apple Inc. also says “covert police or government operations may require complete ‘blackout’ conditions.”

“Additionally,” Apple says,” the wireless transmission of sensitive information to a remote source is one example of a threat to security. This sensitive information could be anything from classified government information to questions or answers to an examination administered in an academic setting.”

The statement led many to believe that authorities and police could now use the patented feature during protests or rallies to block the transmission of video footage and photographs from the scene, including those of police brutality, which at times of major events immediately flood news networks and video websites.

Apple patented the means to transmit an encoded signal to all wireless devices, commanding them to disable recording functions.

Those policies would be activated by GPS, and WiFi or mobile base-stations, which would ring-fence (“geofence”) around a building or a “sensitive area” to prevent phone cameras from taking pictures or recording video.

Apple may implement the technology, but it would not be Apple’s decision to activate the “feature” – it would be down governments, businesses and network owners to set such policies, analyzes ZDNet technology website.

Having invented one of the most sophisticated mobile devices, Apple now appears to be looking for ways to restrict its use.

“As wireless devices such as cellular telephones, pagers, personal media devices and smartphones become ubiquitous, more and more people are carrying these devices in various social and professional settings,” it explains in the patent. “The result is that these wireless devices can often annoy, frustrate, and even threaten people in sensitive venues.”

The company’s listed “sensitive” venues so far include mostly meetings, the presentation of movies, religious ceremonies, weddings, funerals, academic lectures, and test-taking environments.

Cyclist Arrested For Videotaping Cop During Red Light Stop

Photographing and videotaping anything in public view—including federal buildings and the police—is legal in NYC as long as the documentation does not impede any law enforcement activity. Nevertheless, plenty of people—including journalists—continue to be arrested and harassed by camera-shy NYPD officers. Will Paybarah, a 24-year-old Brooklyn resident, says this is exactly what happened to him in late March, when he was stopped for running a red light on his bike and then arrested for trying to videotape the officer with his cellphone. "When I tried to record my interaction with the officer I was arrested... in 10 seconds flat," he told us. You can see that interaction quickly play out in the video below. Paybarah, a designer specializing in lettering and typography, told us he was stopped on the morning of March 20th while biking west on Houston past Broadway. He says he was stopped by "Officer Rich" of the 10th Precinct, who was in an undercover cop car, after he (admittedly) ran a red light. Paybarah took out his ID and immediately started taking video as the cop approached him: "After those 10 seconds I was pulled off my bike, pushed up against the metal fence, placed in handcuffs and put into the back seat of the car. Other officers came. They joked saying they were going to 'handcuff my bike to the tree.'"

The NYPD Patrol Guide Section 212-49 states that “Members of the service will not interfere with the videotaping or the photographing of incidents in public places. Intentional interference such as blocking or obstructing cameras or harassing the photographer constitutes censorship.”

While in the back of the car, Paybarah says he asked the officers why he was arrested for taking video. One officer responded memorably:

I was told by another officer while in the car that recording a police officer was illegal because people are using iPhones as guns and shooting cops through the camera lens...I told him that I have the right to be recording a cop and he said that there were incidents, specifically in uptown Manhattan where a kid shot a cop with his iPhone. Straight face. Very serious.

There are iPhone cases that double as stun guns, and there have been calls for the "iPhone of guns," but this is the first we've heard of an NYPD office being shot with an iPhone gun.

Paybarah was jailed at Central Booking for 13 hours that day, and though he was originally pulled over for running a red light, he was also charged with resisting arrest, obstruction of justice, and criminal mischief. He had his court date this week, and was sentenced to one day community service (and he'll have the arrest purged from his record if he isn't arrested again in the next six months).

Asked about Paybarah's experience, NYCLU Executive Director Donna Lieberman says, “New Yorkers have a constitutional right to film police activity in public. Cell phone cameras empower people to expose police abuse and hold law enforcement accountable when it violates people’s rights." Last year the NYCLU released a free smartphone app that lets users record police interactions and submit them to the organization in real time.

Paybarah adds that he's an avid biker (and used to be a bike messenger), but this is only the second time he's had a run-in with the law: "The only other time I was pulled over on my bike was for...get ready for it...Speeding. I was speeding on my bike. When I went to court for the summons, a clerk looked at the summons and dismissed my case."

Man Arrested For Filming NYC Cop Ticketing Him

By Edwin Kee on 05/04/2014

Will Paybarah, a 24-year old who has made New York City his home, was riding his bicycle last March 20th when he was asked to stop by a policeman who was about to give him a ticket for running a red light. In this day and age when social media is extremely pervasive, Paybarah took out his iPhone to record a video of the police officer’s approach only to find out that he was arrested instead for filming what was about to happen.

One ought to take note that there is no such law that forbids the filming of giving out a ticket, and the arrest was made by a certain undercover officer who goes by the name of Rich from the 10th Precinct. There were other policemen afterwards who showed up and made jokes that included how they were going to cuff Paybarah’ bicycle to a tree.

The NYPD Patrol Guide Section 212-49 does mention that the are not supposed to do anything should someone want to snap a photo, since that could be seen as a form of censorship. Paybarah, in a handcuff and seated within a patrol car, asked for the reason of his arrest only to be told that recording a police officer with an iPhone was illegal because criminals in the city do use iPhone handsets as a gun to fire bullets via the camera lens, while citing an example that a kid recently fired at an officer in the very same manner.

What do you think of the police’s reaction? After all, there are tasers that have been disguised to look like iPhones…

Green Bay police investigate arrest shown in viral video

Green Bay police said Tuesday they are investigating an arrest outside a downtown bar over the weekend captured on video and posted online.

The video, posted to Facebook and YouTube, shows an exchange between a man outside a bar and Green Bay Police Officer Derek Wicklund. The profanity-laced video appears to show an officer aggressively subduing an individual outside the tavern.

All officers involved in the incident remain on the job and continue to work on patrol.

The department’s Professional Standards Division is initiating an investigation and is seeking the public’s cooperation, police said Tuesday.

“We haven’t had, per se, a formal complaint filed, but based on the information we received (Monday) we have decided to start our own investigation,” Capt. Bill Galvin of the Green Bay Police Department said during a press conference Tuesday morning. “We’re going to be looking at everything that took place before, during, and after that incident.”

Joshua Wenzel, 29, of Caledonia, said he is the man on the video being grabbed by an officer, pushed against a car and taken to the ground. Wenzel said he and other people had been drinking at Stir-Ups Parlor & Saloon on South Washington Street, and were outside the bar shortly after it closed.

“I’m standing in front of this other kid, who is saying things and he is walking toward a cop,” Wenzel told Press-Gazette Media. “I don’t know the kid. I say, ‘you don’t want to go after a cop.’ Then the cop starts arresting him, and I say ‘what are you arresting him for?’”

On the video, a voice says “why is he getting arrested too now? Why is he getting arrested too?” An officer walks toward Wenzel, grabs him and pushes him against a parked car. The pair then fall to the ground and scuffle.

“He pushes me back ... he punched me in the face,” said Wenzel, who has been ticketed on charges of disorderly conduct and resisting arrest.

Wenzel said he doesn’t have any bruises or other injuries. He said Tuesday he had not lodged a complaint with police, and had not decided if he will consult an attorney.

Wenzel said he was “kind of drunk” at the time of the incident, but “not stupid, falling-down drunk.”

The incident came to light Monday afternoon through a Facebook post.

Galvin said the early investigation indicates the beginnings of the incident started around an individual who left one of the bars with an open intoxicant. Police ticketed a 24-year-old Green Bay man on that charge.

At least several days of work lie ahead in the investigation, but its duration can vary depending on information that comes forward, Galvin said.

“What we look at is, did officers follow policies and procedures?” Galvin said. “If they didn’t, what happened, and why did it happen. We put that all together into report form and forward it to the chief.”

He said officers dealing with a person who is resisting arrest can “go one level up” to subdue that person. If the person is wrestling with an officer, the officer could be justified in throwing a punch, striking with his elbow or using his baton, Galvin said.

“Every complaint against an officer is investigated as fully as possible,” Galvin said. “In an incident like this we didn’t wait for someone to come forward and file a complaint, we felt something like this is something that should be looked at.

“There were quite a few comments on Facebook, we were receiving emails from people that were concerned about the actions that took place,” he said.

“We’re reviewing details, video from officer’s squad cars, videos submitted to us by citizens and we’ll be trying to formulate a list of possible witnesses we can interview,” Galvin said. “We’ll be doing a thorough and transparent investigation.”

Momentum Grows for Police Body Cameras

By James Poulos.

For critics of police misconduct looking for an easy fix, one solution towers above the rest: affix video cameras to cops. The idea is picking up steam in California, where top officials are showing increased interest.

Yet this also is a time when concerns about data harvesting and government surveillance are also increasing. So questions remain as to whether augmenting oversight with “foolproof” technology contributes to a frame of mind that doesn’t serve civil liberties as much as advocates might hope.

California’s on-body camera experiment is already underway in Los Angeles. As the Los Angeles Times reports, Police commissioner Steve Soboroff led the push, raising $1 million for an effort expected to culminate in some 600 body cams to be used across the LAPD. But with Police Chief Charlie Beck describing the cameras as “the future of policing,” future growth seems assured, barring some unexpected mishap.

Who, indeed, wants to be seen taking a stand against the future — especially the future of public safety? In San Diego, the Times points out, politicians are lining up to endorse the rosy view. There, the city council has allocated twice Los Angeles’ planned spend, with city officials joining the incoming and outgoing chief of police in embracing cop cams.

Southern California’s swell of institutional support is a strong indication of one powerful trend — government enthusiasm toward enlisting technology in pursuit of public safety perfection. The case for videocams on police pitches a dual rationale that seems to benefit both those who govern and those who are governed. Citizens get a body of evidence in the event of officer misconduct. And officers — and departments — get protection from adverse verdicts and costly settlements in litigation surrounding alleged abuse.

What’s missing from that balanced equation, however, is a reckoning with the broader implications of perpetual police surveillance. The logic behind ubiquitous officer-mounted video does not stop with miniature automated camcorders.

Wired

The degree to which cops are “wired” is limited only by the state of the technological art. The New York City Police Department predictably now is testing Google Glass for use on the streets. The “future of policing” permitted by technology is a future where police operations work more and more like military ones — with officers back at headquarters closely monitoring and directing cops in the field, using real-time, first-person video and information.

For civil liberties advocates concerned about what The Washington Post’s Radley Balko calls “the rise of the warrior cop,” that’s not exactly a reason for optimism. So long as no-knock raids, aggressive SWAT techniques, and unreasonable or warrantless searches flourish under judicial protection, invasive and violent policing can become the norm, no matter how well-documented.

It’s a process that can be accelerated by Americans’ frequent sense that a muscular, active police force is a sign of social and political progress, and by the pipeline that so often leads prosecuting attorneys “who get results” to seek and gain higher political office.

Yet the main argument against the trend set by on-body police cameras fails to think very far ahead. The American Civil Liberties Union, for instance, which generally accepts the move toward cop cams, focuses almost entirely on ensuring that cameras cannot be edited or turned off by the cops who wear them.

Yet many Americans are very uncomfortable with the idea of “always-on” webcams embedded in their video game consoles. Isn’t the always-on issue even more salient when it’s an entire police force equipped in that way?

Not only is the bodycam trend apt to feed — and increase — the huge federal and other government appetite for monitoring and databasing. It’s also likely to atrophy our shared standards of individual responsibility, neighborhood trust and civic freedom.

In a world where every interaction with an officer is monitored, recorded, overseen and archived, our relationship to power is fundamentally changed — even if the kind of extralegal abuse associated with high-profile litigation against police departments disappears.

Now at the forefront of the tech revolution in policing, California’s often anti-establishmentarian citizens have a unique opportunity to question whether “the system” should forever be put between every private person and every law enforcement official.