While bystander cellphone videos can shed light on police misconduct, the right to film the cops is not always guaranteed. Bob speaks with Jeff Hermes, lawyer and deputy director of the Media Law Resource Center, about the legal grey areas of our right to record.
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BOB: And I’m Bob Garfield. Last week a South Carolina man, Feidin Santana, filmed the shooting of a man named Walter Scott, was was running away from a police officer. The clip has now been widely circulated, but at first Santana was hesitant to release it. Here he’s speaking with NBC news.
Santana: “I even thought about erasing the video and just getting out of the community, Charleston. And living someplace else.”
Reporter: “Leaving town?”
Reporter: “Because you were that scared?”
Why was he afraid? Because the arrest of amateur videographers filming police activity has become commonplace. The Supreme Court has not yet ruled on the rights of civilians to record in public, leaving the matter to be handled by each jurisdiction individually. So in some parts of the country, police are arresting civilian videographers and facing no legal consequences for so doing.
However, one First Circuit Court of Appeals ruling from the 2011 case Glik v. Cunniffe has set a kind of precedent, ruling that, quote, “open and obvious” filming is a liberty safeguarded by the First Amendment. Jeff Hermes, lawyer and deputy director of the Media Law Resource Center, says the case concerns a man named Simon Glik, who, after filming police making an arrest in a Boston city park, was himself arrested and charged with wiretapping, disturbing the peace, and aiding in the escape of a prisoner. Glick filed a civil rights suit against the police arguing that his 1st and 4th amendment rights had been violated -- and the court agreed...
HERMES: The Glick case was sort of a turning point, because it was a very clear opinion. The first circuit really grounded its recognition of this first amendment right in a long tradition of first amendment activity in public places: use of public parks, observing government officials. And so it was a very powerful statement that yes, we should be recognizing this right. And other courts started to pick up on that, in jurisdictions that didn't yet have a ruling of that nature.
BOB: Now there is judicial precedent, and there is life on the streets. And it doesn't matter what the law is if a policeman decides to get in your face, that's what Feidin Santana was saying before he turned over eventually the cell phone video of the Walter Scott shooting. How much should I fear as a citizen about policemen behaving with impunity while I'm simply photographing them doing their jobs, and presumably, badly?
HERMES: Well the first thing I'd say about that is that in the vast majority of cases, police officers are good people trying to do a difficult job under trying situations. So, if you do have an officer who knows about the right to record, most of the time they're going to treat you all right. But any interaction between civilians and police in the situation in which there's an arrest, there's you know potentially dangerous conditions such as a traffic stop, there's some level of unpredictability. And so there can be danger where somebody is asserting rights to record while ignoring warning signs, police shouting at one another, the presence of weapons, other kinds of things that might indicate that this is a fraught situation where mistakes might be made. You mentioned the situation in South Carolina. That's another class of situation where you have somebody who's making a recording who has just witnessed a police officer acting in what can only be said as clear violation of the law. In those circumstances, somebody who manages to catch a recording like that may well feel a level of justified anxiety because we've already seen the officer being recorded acting outside of proper boundaries, acting outside of their authority in a very violent manner.
BOB: And there's yet another level: there's a guy named Ramsey Orta, the civilian who, with his cell phone captured the choke-hold death of Eric Garner in Staten Island. He left the scene without being molested, but very shortly thereafter was arrested on one charge or another, and then subsequently on yet another charge, and until just a few days ago was in jail on Rikers Island, and has made the argument that his arrest had almost nothing to do with whatever mischief he was up to and everything to do with the police retaliating for putting them in an embarrassing light. IS there evidence that this kind of ex post facto harassment is taking place?
HERMES: Well we've certainly seen a number of cases in which this kind of activity has at least been alleged. There was a case down in the western district of Texas called Bueller vs City of Austin, where there was an allegation of a retaliatory arrest for exercise of first amendment rights. I'd hesitate to say how widespread that particular kind of retaliation is, but yes, it does happen.
BOB: So, tell me, Mistah Lawyer, I got a cellphone, I live in the world, if I encounter the police doing something alarming, do you have any advice for me on how to go about it and what to do next?
HERMES: Don't interfere in what the police are doing. If you're recording make sure you're recording at a safe distance. IF the police give you instructions about where to stand and where to move, those instructions might be unconstitutional, they might interfere with your right to record, but you're almost always better off in the instance obeying those instructions. And then talking to a lawyer later, than doing something which is going to get you arrested or have your phone seized or your footage deleted.
BOB: Now it turns out, like so much else in this life, there's an app for that, called "Stop and Frisk". If you shake it, like a maraca, it maraca-s the recorded video. You know you're handing the phone over to the officer, "yeah, here, here you go, officer," and before he has it in his hands or she, it is on the servers of the New York Civil Liberties Union.
HERMES: A very clever application to try to work around this problem. In some circumstances, we have seen allegations of video actually being deleted by police officers, so if that's a concern then yes, one of these measures might take care of it. But, we've also seen circumstances in which the phone has been seized and returned and the video's intact. We've had circumstances where the video actually failed to record at all, but nevertheless there was a first amendment violation because the police officer acted to try to stop somebody for recording. So many different iterations of what can happen in these circumstances, but an app to preserve footage can be useful in some of them.
BOB: We've previously on this show reported on data that shows that the presence of video chastens everybody involved in these confrontations, both citizen subjects, and police alike. And that the number of disputed incidents has gone down, because everybody understands that, you know, smile you're on candid camera.
HERMES: ANd that's one of the major arguments in favor of, for example, police body cameras, which is a different kind of iteration of this issue, but certainly regardless of who's holding the camera or who's operating the camera, yes, there is a civilizing effect that the lens can have on a situation.
BOB: All right, Jeff, thank you very much
HERMES: My pleasure.
BOB: Jeff Hermes is a lawyer and a deputy director of the Media Law Resource Center.