Posted on 06/07/2013 12:42:55 PM PDT by marktwain
On May 8, Maria Melendez, Melendez's daughter, Melissa Quair, and Quair's boyfriend reportedly witnessed about a half-dozen Kern County, Calif., highway patrol officers beating and kicking 33-year old David Silva in front of Kern Medical Center. Silva, the father of four young children, died early on the morning of May 8, presumably from the injuries he sustained from the incident.
Melendez recorded the entire episode on her phone, as did her daughter's boyfriend. But before she could send the videos to news media outlets, she later told reporters, detectives from the Kern County Sheriff's Office, acting without a warrant, confiscated their cellphones. According to Quair, detectives arrived at her house at 3:00 am and demanded that Quair and her boyfriend turn over their cellphones. Quair's boyfriend reportedly turned over his phone to authorities without asking them to produce a search warrant because "he had to be at work at 8 am and didn't want to be late," according to the Bakersfield Calfornian. Melendez said sheriff's detectives confiscated her phone later that same day.
While some facts surrounding the case remain unknown, it appears that the witnesses who recorded the Silva incident acted lawfully, and—absent a valid warrant—the law enforcement officials had no right to seize their property. And on May 14, the FBI launched an investigation amid questions over whether officials tampered with the cellphone videos confiscated from the witnesses.
Despite the prevailing trend in this country in favor of a right to record law enforcement officials, the Silva incident reminds us that such a right is not a foregone conclusion and remains subject to abuse. This is worrisome because the right to record police activity is a valuable way to keep law enforcement accountable—knowing one's actions might be captured on camera provides a powerful incentive for officials to avoid acting beyond their authority. It helps ensure the survival of other rights by promoting transparency. However, this all depends upon citizens and journalists being allowed to take pictures video without the burden of undue governmental regulation.
In recent years, at least two federal courts of appeals have explicitly recognized the right to record the actions of on-duty police officers. In 2011's Glik v. John Cunniffe, the First Circuit ruled that a man wrongly arrested for recording police officers could sue the arresting officers for violating his First Amendment rights. The Court found a broad First Amendment right to record on-duty government officials in public, stating, "[G]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of government affairs.'"
Glik is undoubtedly a victory, but a recent incident in California suggests that where rubber hits the road, the right to record police activity is, at best, being ignored and, at worst, explicitly rejected.
When police officers unlawfully prohibit an individual from taking video footage (or seize his or her camera after the fact), the incident contributes to a chilling effect on photography. An individual who fears that recording police activity may result in criminal charges or his or her property being seized may decide that it is not worth the risk. Equally troubling is that very few legal remedies exist for those whose rights have been violated, and it is very difficult for the average citizen to get redress in court. Qualified immunity often shields public officials from liability. Furthermore, the damage suffered as a result of having one's camera seized or photographs deleted is difficult to quantify.
University of Tennessee law professor and PopMech contributor Glenn Reynolds (whom I studied under) previously noted that the right to take photographs and video footage in public places is "one of the comparatively few issues that could merit a new federal rights law. Under the 14th Amendment to the U.S. Constitution, Congress is empowered to pass laws protecting civil rights against infringement by state and local officials, and that seems to be what's happening here . . . A clear federal law would limit cases . . . in which local officials use their power to harass those who might keep an eye on them." This issue could gain steam in the wake of the Silva tragedy and similar incidents. Such legislation may be necessary to prevent future violations and a chilling effect on the right to photograph and record the actions of law enforcement officials.
Morgan Leigh Manning is currently practicing law at Spotts Fain in Richmond, Va.
These court rulings are a good step in that direction.
But let us not get cocky lest the King Obama and his regime take notice and try to remove that right and the right to protest
BUMP
Unless you live in NY, then it might be ‘annoying the law enforcement’ and get you 5 years in the slammer.
And yet the government has a camera on most street corners in most populated areas.
Yes you can record, no you cannot obstruct the officer in the performance of his duties. If recording the incident interferes with the job, you can probably be charged.
If you record a cop doing wrong, immediately send a copy of the video to your email. And your lawyer’s email (if you have one). IMMEDIATELY!!!
Better yet, post it on youtube.
Regards,
Videos will be on Fox news, Youtube, and the ACLU's and FBI's inbox before the victim hits the ground.
There are apps to automatically upload data to the “cloud” in real time. As another poster says, the era of cops being able to seize data is rapidly drawing to a close, because cloud computing is becoming the norm.
“Grab the camera, destroy the SD card all you want, the video is already in the wild and there isn’t a damned thing you can do about it, officer.”
The cops may confiscate the camera, but what’s on the camera is evidence. If they destroy it, they incur liability on that score alone.
Never, ever give anything to the cops if they don’t have a signed warrant. Ever.
In the meantime, those who record police should make a strong effort to keep their actions subdued and as much as possible concealed. Having a camera cell phone obviously displayed, or worse, telling the police you are recording them, is just waving raw meat before a wild carnivore.
And that is a good analogy, because police often fall into a predatory behavior pattern, and are attracted to things which get their attention.
Instead, when filming police actions, ideally you get a long stretch of time, without breaks or camera movements, so continuity is maintained. Then when leaving the scene, remove the recording medium and keep it away from the camera, and as soon as possible deliver it to a confederate so even if the “detectives show up at 3am”, there is no way they can get it out of you.
If that happens, the best bet is to get a multitude of unedited copies out on the Internet.
FYI Ms Manning, there is no such thing as a Kern Co highway patrol officer. These were Kern Co deputy sheriffs.
You owe the Calif Highway Patrol an apology.
Try getting it right next time.
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