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Posted on 01/26/2009 7:36:02 AM PST by BGHater
Seconds after BART police officer Johannes Mehserle shot and killed Oscar Grant, police immediately began confiscating cell phones containing videos that have yet to see the light of day.
In fact, the only videos that have been seen by the public were filmed by people who managed to leave the scene before police confronted them.
In one instance, police chased after Karina Vargas after she stepped on the train, banging on the window after the doors closed and demanding her to turn over the camera. The train sped away with Vargas still holding her camera.
Her video, which did not show the actual shooting but captured the turmoil before and after, was one of the first to pop up on the internet. And soon after more videos popped up showing the actual shooting.
In the most vivid video, the train doors can be seen closing seconds after the shooting as the train speeds away.
But the truth is, police had no legal right to confiscate a single camera.
“Cops may be entitled to ask for people’s names and addresses and may even go as far as subpoenaing the video tape, but as far as confiscating the camera on the spot, no,” said Marc Randazza, A First Amendment attorney based out of Florida and a Photography is Not a Crime reader.
Bert P. Krages II, the Oregon attorney who drafted the widely distributed The Photographer’s Rights guide, responded to my inquiry with the following e-mail message:
“In general, police cannot confiscate cameras or media without some sort of court order. One exception is when a camera is actually being used in the commission of crime (e.g., child pornography, counterfeiting, upskirting).”
It didn’t appear that the BART videos were being used in a commission of a crime, so what could people have done to prevent police from illegally confiscating their cameras?
“Probably not a whole lot,” said Randazza. “You don’t want to get into a situation where you are refusing to comply with law enforcement, especially when that law enforcement officer just shot and killed somebody. No camera is worth losing your life over.”
But what can you do if you’re as stubborn as me and have a tendency to refuse unlawful orders?
“Make sure you have an attorney that specializes in First Amendment law,” he said during Monday’s phone interview. “Make sure you have his cell phone and home number. Sometimes calling an attorney on the spot can be helpful.”
Needless to say, I now have Randazza’s cell phone number programed into my cell phone.
I think it’s better to be alive than right or wrong. At least if you’re alive, you can keep telling people you were right...
Yeah, then the ISP could alter it anyway it wanted, before sending it on...
Why?
Just like with Clinton and Bush. Just depends on who’s in office at the time, and if we like him...
They didn’t have cell phone cameras when it was written!! or even situations that are remotely similar.
Fixed.
You betcha. What goes around comes around.
...and keeps coming around and coming around...
Since a cop just shot an unarmed man in the back, do you really need an answer.
I stopped respecting police cause they no longer respect us. I try to avoid any contact with them whatsoever.
“You have an obligation to give your name, address and date of birth. Beyond that, you don’t have to say squat.”
Actually you have a RIGHT to privacy and it has been ruled on by SCOTUS. So you don’t have to give them anything.
Obtaining the camera (or at least the memory card) at the scene precludes any questions about the images being Photoshopped or otherwise tampered with, so I can see their rationale for wanting the cameras.
That said, without a warrant, I don't want anybody presuming he can grab my property.
“Actually you have a RIGHT to privacy and it has been ruled on by SCOTUS. So you don’t have to give them anything.”
Most states have what are known as “Stop and Identify” laws which in most circumstances obligate a citizen who is stopped by the police to identify himself or herself. I don’t know what state you are in, but Illinois has such laws. Obviously, if a cop stops you and asks you what time it is you don’t have to answer at all. But if a cop suspects something (and it’s the cop’s word against yours: All the cop has to say is “I smelled what I thought was pot smoke” or “I thought I heard a scream” or anythin gthat pops into his or her mind), SCOTUS has ruled that it is not a violation of the Constitution for a cop to ask you to ID yourself, and I can pretty much guarantee you you will be arrested on suspicion of something. Believe me, I saw these instances on a regular basis when our clients were law enforcement agencies, and they WERE sued on a regular basis, and I can count on one hand the times when the court ruled against the cops for that.
Given the theme of the story Mr. Miller, you'd be better served to have that number in your wallet. :P
What is the police going to do if I refuse to turn over my camera ?
Throw you on your face, stick his knee in your back and cuff you then, charge you with obstruction and take you in for processing. THEN you can pay a bunch of money to fight it with a lawyer. Sad but true.
The position of the law seems to be that we, despite being private citizens are subject to being filmed practically continuously. How can a “public servant” except under extremely specific circumstances necessary to do their job, have more rights than those who pay their paycheck?
Like the police who confiscated camera phones at the BART shooting? Sounds to me like the whole barrel of them were rotten.
well, I’ll get flamed for this, but if recording devices are seized at the scene, properly logged into evidence and the images copied and stored, and the recording devices returned to their owners I don’t see any violation of the 4th and 5th amendemnts
the evidence is “reasonably seized” - remember that the fourth amendment precludes unreasonable searches and seizures. creating a proper chain of custody from the scene to the courtroom is not unreasonable. allowing the recording device to leave the scene, where the recording can be tampered with, opens up all sorts of foundational objections at trial, requiring a lot of expert testimony to show that the images haven’t been tampered with
if the recording device is returned, complete with the images in the case of a reporter or professional photographer, there is no property to be compensated (fifth amendment)
just saying, if you assume the cops are on the up and up, an immediate seizure, recordation and return of the original isn’t a violation of anyone’s rights and creates a better evidentiary chain for prosecution or administrative action (in the case of officer misconduct)
I sort of disagree with the “first amendment” attorney, since we are talking about criminal investigations and sometimes different rules apply
flame away
The first sentence of the article states:
“Seconds after BART police officer Johannes Mehserle shot and killed Oscar Grant, police immediately began confiscating cell phones containing videos that have yet to see the light of day.”
Kind of makes a shambles of your entire argument doesn't it? We don't know if any of the confiscated phones have been returned to their owners, but it seems unlikely. I mean if you give your phone to the police, how do you prove it? They can toss them in the trash and claim to have never heard of you. Still think police confiscating your phone is a good idea?
What if you lost all your contact information along with your phone, or you missed a really important phone call because the police stole your phone?
Face it, they were not collecting evidence of a crime for trial, they were collecting evidence of a crime to cover up that crime. The evidence they collected in the form of those cell phone images has been destroyed.
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