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  (Source: Edward Nelson Law Offices)
Brutal arrest is raising eyebrows, department has dropped charges against the victim

Brandy Berning, 33, of Davie, Florida was pulled over last March after committing a careless, but common mistake.  She had used the high-ocupancy vehicle (HOV) lane -- a lane reserved for carpoolers -- while traveling alone on Interstate 95, according to the on-duty copy -- Lt. William O’Brien, of the Broward Sheriff's Office (BSO).  The incident occurred in Broward County, the southeast Floridean county which is home to Ft. Lauderdale and neighbors Miami-Dade.

What would happen next was a brutal reminder of the struggle over the right of citizens to record on-duty officers.  While the painful journey for the young victim is far from over, she took back the power this week, suing the man who she says brutalized her, and the department that employed him.

I. Cop -- "I know the law better than you."

The incident began with that simple traffic stop.  The single mom was eager to get home to take care of her child, but she also was worried that the law enforcement officer might misrepresent her actions in court.  So when the officer walked over to discuss the situation with her, she press the record button on her smartphone app.  That's where things took a dramatic term.

Here's an account of the events as told by the single mom who spoke with ABC Local 10 news.

Brandy Berning
Brandy Berning was subjected to a violent arrest for recording a Florida cop.
[Image Source: BSO via ABC]

The officer begins to speak.

After a brief 15 seconds Ms. Berning paused, realizing that she should probably tell him that she was recording him.  She comments, "Oh, I forgot to tell you I was recording our conversation."

"I'm sorry?" the officer exclaims.

Lt. William O'Brien
Lt. William "Bill" O'Brien is seen here in a staff photo. [Image Source: ABC 10]

"I have to tell you, I forgot to tell you I was recording," she tells the officer again patiently.

At that point the officer demanded that she stop recording him on the job and surrender her property -- the phone -- to him.  She refused.  He told her he knew the law a lot better than she did.

The officer was adamant, "You are committing a felony. Hand me the phone."

She stood her ground, though, telling the cop, "No, I am not.  I am not giving up my phone."

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The frustrated cop surely was not about to let the suspect have a proveable record of the account that she could use in court.  But after two minutes arguing, he has had enough.  He tells her she is under arrest for committing a felony.

Ms. Berning told the cop that he had no reason to arrest her and refused to exit her vehicle.  That would be the final refusal.  The police officer decided to take aggressive action, climbing into Ms. Berning's car.

"Get off of me! You are breaking the law!  I am not getting out of my car. Get off of me!" she cried.

But the cop was ready to exact his vision of justice. He allegedly grabbed her keys and dragged her from the car, slamming her down to the streettop.

II. Violent Arrest Leaves Female Victim With Scars and Bruises

The violent arrest left her injured, but the cop had little sympathy for her.  He transported her to the local jail where she was left overnight, unable to see her child.

She catalogs the injuries from the incident, stating:

I had a bruise on my cheek. And my leg got cut, I had a scar on my leg -- three large wounds, scrapes down my leg. And there was a rock lodged in my leg. Also he had sprained my wrist. Touching me, trying to take my personal belongings from me, trying to put me in jail for something so small.

The next day she was released.  She was charged with traffic violations and for "resisting" the officer's order issued after she refused to allow him to seize her property.

Police Brutality
[Image Source: Tom Lacey/Photobucket]

The brutal arrest of the woman shocked at least one member of Lt. O'Brien's own department.  She told local news reporters that she only decided to sue Lt. O'Brien after another cop, whose identity she chose to protect, spoke with her about the arrest and expressed outrage at his fellow officer's actions, suggesting she sue.

She took the second officer's advice.  She's hired two top local attorney's and this week filed a lawsuit over the violent, and potentially illegal arrest.  She is being represented by Mike Glasser and Eric Rudenberg.

III. You Have the Right to Record.

Mr. Rudenberg tells the local Sun Sentinel: that the suit is necessary to force cops to remember that they're employed by taxpayers, not rogue vigilantes.  He explains:

Finding they're liable for what they did, using what we think was excessive force just because she was recording him on her phone, that would drive home the point that police officers can't do this.

In Florida, both parties need to be informed if a conversation is being recorded.  But federal court rulings have thus far unanimously defended the principle that regardless of such laws, citizens have the right to record officers so long as they are not obstructing an investigation. 

The U.S. Supreme Court has thus far not had to comment on the issue.  The highest court that has thus far decided on the legality of the issue is the United States Court of Appeals for the First Circuit which sets precedent for the Districts of Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.

It ruled in 2011 that third parties and suspects have the right to record officers as long as they aren't obstructing an investigation (e.g. blocking an officer from examining evidence or arresting someone).  Recording an officer is not inherently obstruction or grounds for arrest the court ruled.  It says that recording an on-duty officer is protected under the First Amendment of the U.S. Constitution.

Gave and book
Lawyers for Mr. Berning are preparing to file false imprisonment assault, and burglary charges against the arrest officer. [Image Source: Yahoo! Finance]

Some other lower courts have ruled that given that this was a new civil rights issue, they lacked the information or jurisidiction to override a police officer's qualified immunity.  Qualified Immunity 42 U.S. Code § 1983 states that an officer may not be charged for actions which did not violate "clearly established law".  These courts ruled that the arrested person(s) should not be charged for the recording, but that the officer could not be charged either as the legality of the recordings had not been "clearly established".

Ms. Berning's attorney, Mr. Glasser suggests that law enforcement officers have "[no] reasonable expectation of privacy" while performing the duties that they are paid by taxpayers like Ms. Berning to do.  He and his fellow attorney after much preparation filled a lawsuit in Floridian court this week.  The lawsuit targets both Lt. O'Brien and the Brownard Sherriff's Office this.  In the filing Lt. O'Brien is accused of battery, false arrest and false imprisonment.

Despite the Florida law about recording Barry Butin, co-legal panel chairman of the Broward County American Civil Liberties Union (ACLU), says that the law is probably on Ms. Berning's side, particularly given the excessive use of force and that she did almost immediately comply with the law and tell the officer she was recording him.

Mr. Butin comments:

[Berning] has a good chance of the law being on her side.  Clearly, it was an overreaction … And look at the totality of the circumstances.  She shouldn't have had to spend the night in jail, that's for sure.

The U.S. Attorney General, Eric Holder in May 2012 rejected requests from various police departments to crack down on citizen recording of law enforcement officers.  Rather he sided with the members of the public telling various police departments in a tersely worded letter that seizing citizens' recording devices or imprisoning the for recording was likely unconstitutional and illegal.

IV. After Second Officer is Sued BSO Finally Backs Down From Controversial Phone Seizures

While similar incidents have happened far too often at various police jurisidictions across the country, the BSO is somewhat unusual in that it is one of the few departments nationwide that has had multiple accusations of police brutality and theft over its crackdown on citizen recording.

Ironically, this is not the first incident for the BSO relating to a cell phone recording.  A separate BSO deputy -- Officer Paul Fletcher -- engaged in a similar incident back in 2011.  The citizen's case again Mr. Fletcher accuses him of burglary, battery, criminal mischief and petty theft.

Broward Sheriff Officer
This is the second brutality incident with a Broward cop. [Image Source: Christopher Ziemnowicz]

Coincidentally, the fresh incident comes just as Lt. O'Brien's fellow officer is about to face the justice system.  A hearing is scheduled in the Fletcher case for tonight.  Officer Fletcher also reportedly targeted a female during a traffic stop.  He allegedly smashed her phone in an attept to destroy her evidence of the event.

In response to the second-straight incident, in July 2013 the BSO begrudgingly changed its policies.  In a move potentially designed to reduce the department's legal accountability, the BSO sent out a memo "clarifying" to officers that citizens were legally allowed to record them.

recording
Prior to the brutal arrest, the BSO announced a policy change in an internal memo, allowing citizen recording.  Apparently Lt. O'Brien didn't get the memo.
[Image Source: Ask Audio Mag]

Assuming he's still on the job one must wonder whether the self-proclaimed legal expert, Lt. O'Brien got the memo.

Given the new policy, it didn't take long for the department to last year also announce its decision to drop all charges against Ms. Berning, including the charge of resisting arrest.  Reviewing the video evidence of how its officer conducted himself, it found no evidence that the young mother other than the traffic violation, which in light of the imprisonment, it decided not to pursue.

It is unclear whether Lt. O'Brien has been placed on leave or if he is still with the department.

Brandy Berning
All charges against Brandy Berning [pictured] have been dropped.  [Image Source: WND]

What is clear is that the department's actions in the aftermath of the messy arrest suggest its employee didn't know as much about the law as he thought he did.  Had he, perhaps he would rethink his decision to appoint himself judge and jury on that cool spring evening almost a year ago, an evening that will surely remain painfully etched into Ms. Berning's thoughts for years to come.

Sources: ABC 10 - WPLG, Sun Sentinel, The Washington Post





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