Police Efforts to Ban Citizen Taping Beaten Back by Department of Justice
May 17, 2012 1:11 PM
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
. 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 --
phone data grabbing
"national security letters"
, and more. Audits have revealed that these Orwellian privileges can be and often
The Obama administration has drawn some flak for supporting some of these intrusions --
such as warrantless wiretaps
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 [
] -- at times beating them to death [
] -- 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.
[Image Source: Occupy News Network]
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
[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.
U.S. Attorney General Eric Holder was encouraged to defend the right to tape in a recent letter.
[Image Source: DOJ]
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
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.
[Image Sources: Unknown (left); Shepard Fairey (right)]
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
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. [Image Source: NBC]
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.
DOJ via Wired [PDF]
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