For those in trial...

The Right of Citizens to Videotape Police

By Jonathan Turley, Los Angeles Times

Twenty years ago, as Rodney King was beaten by Los Angeles police officers, a private citizen in a nearby apartment turned on his video camera. Largely because of that tape, four officers were criminally charged. In July, a homeless schizophrenic man died after a police beating in Fullerton. Audio from a cellphone video caught Kelly Thomas' cries for his father and helped force an investigation that resulted in a first-degree murder charge against one police officer.

The increasing availability of cellphones and video cameras has fundamentally changed police abuse cases, creating vital evidence in cases that were once dismissed as matters of conflicting accounts between officers and citizens. With that change, however, has come a backlash from officers who, despite court rulings upholding the right of citizens to tape police in public, have been threatening or arresting people for the "crime" of recording them. In many states, prosecutors have fought to support such claims and put citizens in jail for videotaping officers, even in cases of police abuse.

In New York this year, Emily Good was arrested after videotaping the arrest of a man at a traffic stop in Rochester. Good was filming from her frontyard; an officer is heard saying to her, "I don't feel safe with you standing behind me, so I'm going to ask you to go into your house." When she continued to film, the officer said, "You seem very anti-police," and arrested her.

DOCUMENT: 1st Circuit Court decision: Citizens' right to record

In Illinois last month, Brad Williams filed a lawsuit against the Chicago Police Department because, he said, he was beaten by police in response to his filming an officer holding and dragging a man down the street from inside a moving squad car. Ironically, Chicago has rejected complaints about the installation of thousands of cameras in the city that film citizens in public for use in prosecutions.

In Maryland in July, Anthony Graber got a well-deserved speeding ticket, but his real mistake was posting footage from his motorcycle helmet-cam on YouTube. It showed an irate off-duty, out-of-uniform officer pulling him over with his gun drawn. Prosecutors obtained a grand jury indictment against Graber on felony wiretap charges, which carry a 16-year prison sentence.

In Boston in August, the U.S. 1st Circuit Court of Appeals ruled unambiguously that the Constitution protects citizen videographers filming in public. In that case, attorney Simon Glik was walking past the Boston Common on Oct. 1, 2007, when he came upon three Boston officers arresting a man. Glik turned on his cellphone camera after hearing a witness say the police were being abusive. An officer told Glik to turn off his camera. When Glik refused, he was arrested for violation of the state wiretap statute, disturbing the peace and, for good measure, aiding in the escape of a prisoner.

The charges were dismissed after a public outcry, but in a later civil rights case, city attorneys fought to deny citizens the right to videotape police. The court rejected Boston's arguments and found that the police had denied Glik his 1st and 4th Amendment rights.

But other federal judges might not be so sure. Take Richard Posner, the intellectual leader of conservative judges and scholars who sits on the U.S. Court of Appeals in Chicago. Posner shocked many last month when he cut off an attorney for the American Civil Liberties Union, which had filed suit to challenge an Illinois law preventing audio recording of police without their consent.

The ACLU lawyer had uttered just 14 words when Posner barked: "I'm not interested, really, in what you want to do with these recordings of peoples' encounters with the police." Posner then added his concerns about meddling citizens: "Once all this stuff can be recorded, there's going to be a lot more of this snooping around by reporters and bloggers.... I'm always suspicious when the civil liberties people start telling the police how to do their business."

Many judges may privately share Posner's view of such confrontations. And the near-total silence of politicians in dealing with the question of the public's right to record what they see and hear suggests that many legislators may also find these cases inconvenient.

Actions against citizen videographers run against not just the Constitution but good public policy. Yet, without a videotape, Rodney King would have been just another guy with a prior record claiming abuse, against the word of multiple officers.

The outcome once was all but inevitable: no tape, no case. As long as police abuse is out of sight, it can also be out of mind. If successful, the backlash against citizens recording police could guarantee that Rodney King is never repeated — the officers' trial, that is.

Full article can be found here.

How the War on Terror Has Militarized the Police

From The Atlantic:

Over the past 10 years, law enforcement officials have begun to look and act more and more like soldiers. Here's why we should be alarmed. 

At around 9:00 a.m. on May 5, 2011, officers with the Pima County, Arizona, Sheriff's Department's Special Weapons and Tactics (S.W.A.T.) team surrounded the home of 26-year-old José Guerena, a former U.S. Marine and veteran of two tours of duty in Iraq, to serve a search warrant for narcotics. As the officers approached, Guerena lay sleeping in his bedroom after working the graveyard shift at a local mine. When his wife Vanessa woke him up, screaming that she had seen a man outside the window pointing a gun at her, Guerena grabbed his AR-15 rifle, instructed Vanessa to hide in the closet with their four-year old son, and left the bedroom to investigate. 

Within moments, and without Guerena firing a shot--or even switching his rifle off of "safety"--he lay dying, his body riddled with 60 bullets. A subsequent investigation revealed that the initial shot that prompted the S.W.A.T. team barrage came from a S.W.A.T. team gun, not Guerena's. Guerena, reports later revealed, had no criminal record, and no narcotics were found at his home.

Sadly, the Guerenas are not alone; in recent years we have witnessed a proliferation in incidents of excessive, military-style force by police S.W.A.T. teams, which often make national headlines due to their sheer brutality. Why has it become routine for police departments to deploy black-garbed, body-armored S.W.A.T. teams for routine domestic police work? The answer to this question requires a closer examination of post-9/11 U.S. foreign policy and the War on Terror.

Ever since September 14, 2001, when President Bush declared war on terrorism, there has been a crucial, yet often unrecognized, shift in United States policy. Before 9/11, law enforcement possessed the primary responsibility for combating terrorism in the United States. Today, the military is at the tip of the anti-terrorism spear. This shift appears to be permanent: in 2006, the White House's National Strategy for Combating Terrorism confidently announced that the United States had "broken old orthodoxies that once confined our counterterrorism efforts primarily to the criminal justice domain."

In an effort to remedy their relative inadequacy in dealing with terrorism on U.S. soil, police forces throughout the country have purchased military equipment, adopted military training, and sought to inculcate a "soldier's mentality" among their ranks. Though the reasons for this increasing militarization of American police forces seem obvious, the dangerous side effects are somewhat less apparent.

Undoubtedly, American police departments have substantially increased their use of military-grade equipment and weaponry to perform their counterterrorism duties, adopting everything from body armor to, in some cases, attack helicopters.  The logic behind this is understandable. If superior, military-grade equipment helps the police catch more criminals and avert, or at least reduce, the threat of a domestic terror attack, then we ought deem it an instance of positive sharing of technology -- right? Not necessarily. Indeed, experts in the legal community have raised serious concerns that allowing civilian law enforcement to use military technology runs the risk of blurring the distinction between soldiers and peace officers.

This is especially true in cases where, much to the chagrin of civil liberty advocates, police departments have employed their newly acquired military weaponry not only to combat terrorism but also for everyday patrolling. Before 9/11, the usual heavy weaponry available to a small-town police officer consisted of a standard pump-action shot gun, perhaps a high power rifle, and possibly a surplus M-16, which would usually have been kept in the trunk of the supervising officer's vehicle. Now, police officers routinely walk the beat armed with assault rifles and garbed in black full-battle uniforms. When one of us, Arthur Rizer, returned from active duty in Iraq, he saw a police officer at the Minneapolis airport armed with a M4 carbine assault rifle -- the very same rifle Arthur carried during his combat tour in Fallujah. 

The extent of this weapon "inflation" does not stop with high-powered rifles, either. In recent years, police departments both large and small have acquired bazookas, machine guns, and even armored vehicles (mini-tanks) for use in domestic police work.

Full article can be found here.


ARTHUR RIZER & JOSEPH HARTMAN - Arthur Rizer, a former Washington state peace officer who earned a Bronze Star and Purple Heart while serving with the U.S. Army in Iraq, currently works at the U.S. Department of Justice.  (His views do not necessarily represent the views of the Department of Justice.) Joseph Hartman, a Ph.D. candidate in government at Georgetown University, practices law in Arlington, Virginia.

Fourth Amendment Future: Virtual Searches

Susan Brenner, a law professor, has written a law review to be published later this year. The abstract:

This article examines the 4th Amendment implications of two tactics that may become part of law enforcement’s efforts to investigate and otherwise control criminal activity. The first is the use of certain types of software, most notably Trojan horse programs, to conduct surreptitious, remote searches of computers and computer media. The other tactic is the use of “virtual force,” e.g., using Distributed Denial of Service and other attacks to shut down or otherwise disable websites that host offending content and/or activities.

The text of the full article is available here. The topic raises interesting and alarming questions about the future of the Fourth Amendment in light of the information age in which we now live.