filming police – Techdirt (original) (raw)

Another Settlement Shows Why It’s A Bad Idea For Cops To Harass People Who Film Them

from the you're-only-hurting-the-communities-you-pretend-to-serve dept

We may not have Supreme Court precedent (yet!), but a number of cases handled by appellate circuits all over the nation have made it resoundingly clear: there’s a First Amendment right to film police officers.

Of course, lawmakers caping for cops have done their best to make this act more difficult. Multiple attempts have been made to create a protective area around cops (the bigger the better!) that would make it more difficult to film police, as well as give cops an excuse to arrest anyone in the area attempting to record them. Most of those efforts have failed, either because they’ve been voted down or they’ve been rejected by courts as unconstitutional.

Cops have also used wiretapping statutes to make bullshit arrests of people who record them. A lot of those efforts have been undone by federal court decisions upholding the right to record officers, even in states where recordings are subject to two-party consent laws.

Meanwhile, down in the Fifth Circuit (where cops are treated better than in other circuits), a settlement has been paid out to the teen who recorded his mother’s arrest by St. Tammany Parish (LA) deputies four years ago.

A teenager who video-recorded his mother’s forceful arrest by Louisiana sheriff’s deputies in 2020 has been awarded $185,000 by a federal jury in a lawsuit filed over one deputy’s attempt to interfere with the recording.

De’Shaun Johnson was 14 when deputies arrived at his family’s home in St. Tammany Parish to question his mother, Teliah Perkins, about allegations she had ridden a motorcycle without a helmet — a charge her attorneys said was baseless and that was never prosecuted.

The confrontation turned physical, and video showed the woman being forced to the ground.

That wasn’t the only confrontation that turned physical. As Johnson attempted to record this arrest occurring in his own home, he was accosted by a deputy far more concerned with the teen’s cell phone than the arrest still underway behind him.

As Mr. Johnson started to record the incident on his phone, Deputy Moring stepped in front of him to prevent him from capturing the incident. Moring shoved Mr. Johnson in the chest and aimed his Taser directly at him. When Mr. Johnson objected, saying, “You can’t Tase a child,” Deputy Moring responded: “Watch me.”

Since the incident, Mr. Johnson was diagnosed with post-traumatic stress disorder and received treatment as a result.

Lovely. I guess it was worth it. After all, the parish residents will be paying this bill and Deputy Moring still got to threaten a non-threatening teen with a Taser. It works out for everyone!

The remarkable thing is this settlement still happened despite the Fifth Circuit granting immunity on the excessive force claims brought by the teen’s mother. It did, however, rule that the teen’s claims against Deputy Moring could proceed. The case proceeded to trial and jury decided a rights violation did occur and it was worth slightly under $200,000.

Of course, this being the Fifth Circuit, at least one judge had stupid things to say about civil rights and cops. This time it was Judge James Ho, who has demonstrated multiple times he believes the government should have more rights than the governed.

Ho dissented from the part of the Nov. 30 decision allowing action against Moring to continue over his attempt to stop the filming of the arrest. “The Constitution does not compel police officers to affirmatively help a citizen secure the ideal camera angle while that citizen is actively berating the police just a few feet away from an active physical struggle with another person,” Ho wrote.

Yeah. That’s why the Fifth is the mess it is. Too many judges like Ho, too few like Judge Don Willett. In other words, cops should be able to “affirmatively” threaten someone with a Taser if they don’t stop filming because heavily armed officers with the force of law behind them shouldn’t have to deal with the immense burden of being “actively berated” while performing an arrest.

Filed Under: 1st amendment, 5th circuit, filming arrests, filming police, louisiana

DeSantis Signs Bills To Create 25-Foot Halo Around Cops, Strip Oversight Boards Of Independence

from the lifted-shitheel-licks-boots dept

Here come more bad laws, courtesy of the Florida legislature — a government body that hasn’t met a right it isn’t willing to violate to further its bigoted agenda.

These laws won’t necessarily violate rights right out of the gate, but the potential is definitely there. Here’s Douglas Sole of the Tallahassee Democrat (it’s a newspaper name, not a political allegiance) with the latest legislative bad news:

Florida Gov. Ron DeSantis signed two bills Friday that he says will support law enforcement, but which critics warn will undermine the public’s ability to prevent police brutality and corruption.

“I don’t think there’s anyone that can match what we’ve done to protect the citizens of this state, but particularly to ensure that we respect and protect the men and women who wear the uniform,” DeSantis said at the bill signing event in St. Augustine, surrounded by uniformed officers and standing behind a lectern sign that said, “Supporting Law Enforcement.”

One bill (SB 184) creates a 25-foot “no-go” zone around first responders, including police. The other (HB 601) would limit what citizen police oversight boards can do, including investigating complaints of officer misconduct, and would require these panels to be re-established under county sheriffs and municipal police chiefs, who would appoint the members.

Ron, I don’t think anyone should “match” what you’ve done. And it’s certainly not being done to “protect the citizens” of Florida. The second half of that sentence is far more honest: these laws are meant to protect some of the most powerful people in Florida: law enforcement officers.

While SB 184 extends the halo of protection to first responders like firefighters and EMTs, the real purpose of the law is to give cops a reason to harass or arrest people who attempt to film them. Pushing them 25 feet back (a distance left to the discretion of the officer enforcing the new law) makes it harder to get a clear view of what’s happening.

And the lectern sign gives away the game: “Supporting Law Enforcement.” No first responders who aren’t cops have ever complained about the public interfering with their work or wasted valuable first response time telling people to stop recording. That’s something cops do almost exclusively. This isn’t about ensuring first responders are given space to do their jobs. It’s about adding another 20+ feet of distance between cops and accountability.

Here’s DeSantis’ excuse for this latest bit of bootlicking:

DeSantis said the legislation “recognizes we’ve got some strange currents going on in our society right now that really seek to delegitimize law enforcement,” accusing news media outlets of warping narratives about police for attention and “clicks” and citing media coverage of the recent controversial police killing of Dexter Reed in Chicago.

Ron, cops have done plenty themselves to “delegitimize law enforcement.” The only difference in recent years is that it’s a lot harder to control the narrative when everyone on the street is carrying around a camera of their own. That’s what this law aims to deter: citizen recordings. According to the vague wording of the law, filming cops could be considered an act “without legitimate purpose,” which would be enough to justify cops moving people recording police interactions far enough away they can’t fully document the incident.

An amendment to protect citizens’ right to record was rejected. So was Rep. Angela Nixon’s amendment, which simply asked the legislature to fully own the underlying conceit of this ridiculous legislation:

[N]ixon’s proposed amendment to change the name of the bill to “The I Don’t Want the World to See the Police Kill an Unarmed Innocent Man Like George Floyd Again, So I Want To Protect Bad Cops and Violate Free Speech Act” [also failed].

Creating even more separation from accountability is the second bill, which removes the word “independent” from “independent oversight” to allow police to police themselves, something they deliberately do poorly.

The twenty-one civilian oversight boards that currently exist in Florida will be altered starting January 1 of next year, stripping them of anyone local cops don’t approve of. This stripping of any pretense of accountability could not be more transparent, ironically.

All boards will be required to have from three to seven members, with one member being a retired law enforcement officer. (Keep in mind that a lot of officers choose to retire, rather than face internal investigations or other accusations of misconduct. So, there’s a good chance a lot of retired cops are also bad cops.)

Then it gets worse:

All members must be appointed by the sheriff or police chief over the area

Foxes and hen houses, inmates running asylums, or whatever your favorite idiom is. This law ensures no officers will ever face accountability from oversight boards by stocking them with cops and their friends. It’s the opposite of a kangaroo court — a place where exoneration is guaranteed.

None of this is surprising. DeSantis is an aspiring fascist and there’s little more conducive to fascism than law enforcement agencies being given permission to be a law unto themselves. Florida’s governor and far too many of its legislators have declared war on the Constitution. And all the while, they continue to pretend they’re the greatest Americans of all, even as they work in lockstep to create a nightmarish blend of bigotry and totalitarianism.

Filed Under: 1st amendment, filming police, first responders, florida, law enforcement, ron desantis

Indiana City Sued Over State Law Forbidding Citizens From Coming Within 25 Feet Of Cops

from the notre-dammit dept

It’s been clearly acknowledged by a majority of courts (but not the Supreme Court, alas) that filming cops while they perform their duties is protected by the First Amendment.

Most legislators know this. But some legislators still yearn to protect cops from accountability. So, they push bills that install “time and place” restrictions in hopes of limiting the number of recordings law enforcement officers can’t directly control.

Utilizing bullshit arguments about “interference” or “harassment,” legislators have pushed bills creating an unconstitutional radius in which no recordings can occur. Some of these bills have even become law. But not for long. They tend to immediately wilt in the face of the first constitutional challenge.

A law recently passed in Indiana creates a legally bogus radius of 25 feet around cops. It’s not that lawmakers actually think people routinely interfere with arrests or other cop activity. It’s been enacted because subservient lawmakers think this will make most recordings of cops pretty much useless. Here’s Emma Camp with the details for Reason:

In March, the state legislature passed a law making it a misdemeanor to “knowingly or intentionally [approach] within twenty-five (25) feet of a law enforcement officer lawfully engaged in the execution of the law enforcement officer’s duties after the law enforcement officer has ordered the person to stop.”

“Our public safety officers have important work to do, and their jobs often involve dangerous and unpredictable situations,” Rep. Wendy McNamara (R–Evansville) said in a February press release. “The goal of this bill is to give officers another tool to help control a scene to maintain their safety and the public’s safety.”

Liar. Or, if not a liar, a useful idiot. People don’t regularly wander right up on top of cops to interrupt their activities. Most people recognize the fact that there are laws already on the books that criminalize these actions.

This is in place to limit useful recordings of police misconduct by Indiana residents. As such, it’s clearly a constitutional violation. The ACLU is now involved in a constitutional challenge of the law in a lawsuit targeting the city of South Bend, Indiana — home of citizen journalist Donald Nicodemus, who (reasonably) fears his recording of cops will be unconstitutionally limited by the state law.

From the lawsuit [PDF]:

Donald Nicodemus is a citizen-journalist who lives in South Bend, Indiana, and monitors the activity of public-safety personnel, primarily the South Bend Police, and who regularly posts videos, some live, on his YouTube channel Freedom 2 Film, which has more than 23,000 subscribers. He does this both to monitor the police and to inform the greater community of what he deems to be newsworthy activities. South Bend police have already enforced Indiana Code § 35-44.1-2-14 against him to prevent him from getting close enough to be able to observe and record their activities, and he reasonably believes that it will continue to be enforced against him in the future.

Indiana Code § 35-44.1-2-14 will therefore negatively affect Mr. Nicodemus’s ability to engage in his constitutional right to observe and record the police without interfering with their activities and to broadcast these observations to other persons. The statute violates the First Amendment and is unconstitutional. Appropriate declaratory and injunctive relief should be issued.

As the ACLU and Nicodemus argue, there’s no reason a new law restricting approaching police officers is needed. Existing laws already criminalize interference and obstruction. Then there’s the 25-foot radius, which is determined by the officer yelling at bystanders, rather than by any objective distance residents (and police officers) can clearly and immediately recognize.

And that distance — which was “stepped off” (I’m quoting directly from the lawsuit) by Officer Stepp (I know right?) to move bystanders back 25 feet — was extended even further after the arrival of another officer.

After approximately 12 minutes, another South Bend police officer, Officer Veal, approached Mr. Nicodemus and others who were gathered at the “25 foot” point ordered by Officer Stepp.

Officer Veal said he was the “crime scene tech” and that this was his crime scene and that Mr. Nicodemus and other persons had to move back another 25 feet.

Officer Veal threatened that those on the corner, including Mr. Nicodemus, would go to jail if they did not move back another 25 feet, stating that there was a “new law,” apparently referring to Indiana Code § 35-44.1-2-14.

Officer Veal apparently interpreted Indiana Code § 35-44.1-2-14 as allowing police to repeatedly push persons back 25 feet at a time based solely on a police officer ordering this.

Law enforcement officers are bad at law. Nothing new about this. And nothing that doesn’t tend to benefit them in the long run, what with qualified immunity and “good faith” and the endless forgiveness of their misdeeds by those employing them.

Not only are they bad at law, they can’t even bring the right tools for the job.

Officer Veal gave Mr. Nicodemus a tape measure and told him he had to move back while holding the tape measure. Mr. Nicodemus complied, although the tape measure only stretched 10 feet.

So, not only is the law dumb and unconstitutional, but cops can’t even enforce it consistently or accurately. Mr. Nicodemus’ interaction with the law may be anecdotal (but most likely recorded). But it points to the larger problem with laws like these: not only do they unnecessarily restrict people’s First Amendment rights, but whatever distance the law proscribes will be defined by the person enforcing it — the sort of thing that lends itself to abuse and makes potential criminals of anyone observing cops performing their duties.

Filed Under: 1st amendment, filming police, indiana, south bend

Florida Legislators Push Bills Aimed At Making It More Difficult To Film Cops

from the who-decides-what-14-feet-actually-is dept

A number of stupid lawmakers have attempted to basically outlaw filming cops by proposing imaginative legislation that would prevent all but the most ineffective documentation of public employees performing their public duties.

You can’t outlaw filming police. The First Amendment pretty much prevents that, even if case law in judicial circuits is still not completely settled. What you can do is create new offenses that give officers a reason to arrest people for filming then, including people wandering within a circumference that’s wholly defined by the officer enforcing it.

So far, it’s only the state of Arizona that has managed to outlaw recording of cops, as long as the recording isn’t far enough away from the scene of the action. Other states have tried (Texas said 25 feet before shrinking it to 20 feet, which was then followed by an abandonment of this effort) but Florida legislators seem intent on limiting outside documentation of police activities.

This opinion piece published at Yahoo attacks the law, but it unfortunately opens with a poorly worded paragraph that might muddle the issue before anyone can get to the rest of the piece. It calls it this effort “witness intimidation legislation,” a term that suggests the state wants to limit witness intimidation when, in fact, it’s actually trying to intimidate witnesses of police misconduct.

This is more to the point:

If passed, this legislation would allow police officers greater authority to harass and criminalize people for documenting their use of excessive force. It would make it illegal to approach within 20 feet of a police officer (and, in the case of the Senate bill, other first responders) effectively criminalizing, with fines and jail time, the filming of police at close proximity.

All of this is true. The state Senate version makes it illegal to approach any “first responder” within 14 feet with the intent to “impede, provoke, or harass.” The House version is pretty much the same thing, but with a 20-foot radius. Both define harassment as any act that “causes emotional distress” and “serves no legitimate purpose.” That last stipulation might prove handy in court. Many courts consider filming police officers to be a legitimate act of public service and preemptively covered by the First Amendment.

Both versions are equally terrible in other ways. They both criminalize the production of sound — the criminality of which will apparently be left up to the discretion of the police officer at the scene.

Harass the first responder or make so much noise that a first responder is prevented from performing their official duties or providing medical aid.

I have yet to hear any first responder (referring only to EMS units and/or firefighters) being so deterred by bystanders’ noise they could not do their jobs. In fact, I’ve never heard about any first responder being sued by someone for violating their First Amendment rights by preventing them from recording the incident and/or being too close to the action. Almost everyone understands first responders of this sort are there to save lives and prevent/limit injury. They give them their space and respect their requests to give them more space.

That’s one of several reasons this legislation is bullshit. It tries to treat cops as first responders when first responders are always there to save lives, rather than harm them. First responders don’t mind being filmed because they’re generally engaged in actually heroic acts.

Cops, on the other hand, wander into bad situations and make them worse. They aren’t there to save lives. Even when they’re specifically asked to save lives, they often prefer to take them. That’s why cops don’t want to be filmed and that’s why shitty legislators are writing shitty legislation and pushing it through the legislature by pretending people are routinely harassing actual heroes, rather than just bad cops doing bad things.

These are proposals solely meant to push people bringing accountability to cops further back. This gives cops a reason to arrest people for filming them. This is an attempt to codify an imaginary radius, where 14-20 feet will be whatever a cop needs it to be when too many citizens are doing too much filming. Laws like these were never proposed before every citizen started carrying a camera in their pocket. Now, with most of the population wielding smartphones, suddenly laws like these are “needed” to protect insanely powerful public employees from the people they serve. It’s bullshit. And hopefully both of these proposals will die under the weight of their own pretenses before reaching the governor’s desk.

Filed Under: 1st amendment, filming police, florida, harassment, transparency

Appeals Court Hands Immunity To TSA Agents Who Forced Man To Delete His Recording Of Them

from the sure-it's-a-violation,-but-we're-not-going-to-offer-a-remedy dept

Yeah, this is not great. This is yet more case law basically saying don’t bother suing federal agents because, unless they’ve very specifically done the same thing other federal agents have been held accountable for, they’re just going to walk away from lawsuits.

The Supreme Court’s 1971 Bivens decision may have created a cause of action for citizens whose rights have been violated, but every year since has seen repeated narrowing of an already narrow decision. It doesn’t matter whether a federal officer filled you full of bullet holes from across the US/Mexico border or, less horrifyingly in this case, made you stop recording a patdown of your loved ones and forced you delete the recording. Either way, the government wins and more precedent is established taking each subsequent constitutional violation by a federal agent further and further away from a judicial remedy.

In 2019, Dustin Dyer, his husband, and their children were attempting to board a plane at a Virginia airport. Dyer and their kids went through. His husband did not. TSA agents detained him to perform a pat down supposedly related to the infant formula he was carrying which TSA agents could not open.

Dyer stood about 10 feet away from the pat down and began recording. TSA agent Natalie Staton noticed he was recording and asked him to stop, claiming this passive recording from 10 feet away somehow “impeded” the other agent’s ability to “do his job.” Dyer reasonably asked for clarification of this assertion by Staton. This was ignored as Staton went and grabbed her supervisor, Shirrellia Smith.

Dyer asked Smith if he could continue recording. Smith said no. Dyer stopped recording. Smith then ordered Dyer to delete the recording while Staton shoulder-surfed to ensure the ordered deletion took place.

Dyer sued. He reasonably claimed this was a violation of his First and Fourth Amendment rights by the TSA agents.

He won. Or rather, the TSA agents weren’t granted immunity on his Bivens claims by the circuit court. The 2021 decision [PDF] said several important things. First, it recognized a right to record public employees — a right that has yet to be recognized at the appellate level with a prejudicial decision.

It went another crucial step further: it said the alleged First and Fourth Amendment violations could be addressed under Bivens. This was brand new, as higher level courts (including the Supreme Court) have yet to extend the Bivens decision to cover First Amendment violations. But, as the court saw it, the violation of Dyer’s First Amendment rights was so “crystal clear,” these federal agents could not avail themselves of qualified immunity.

Furthermore, it said that even if the TSA has some legitimate national security directives to address that may curtail constitutional rights, this isn’t one of them. The TSA can still perform its important national security work while people record from a safe distance away. And allowing these officers to be sued does nothing to deter the TSA and its employees from continuing to do this (allegedly) important work.

Allowing damages in this case would not hamper TSA’s efficacy; permitting individuals to record, from a distance, TSA agents performing their duties does not limit TSA agents’ ability to screen passengers. Indeed, TSA policy allows individuals to record if they do not interfere with the screening process or record sensitive information.

Well, that’s all over now. The findings of the lower court have been swept away entirely by the Appeals Court, which says none of this is right. It sides (as it has to) with the Supreme Court’s extremely limited interpretation of plausible Bivens actions (i.e., heads, the government wins; tails, the plaintiff loses)

Everything good about the lower court’s decision no longer matters. The TSA agents get a free pass exactly for the reasons the lower court said they shouldn’t. (via Short Circuit)

First, the court [PDF] (unbelievably) claims that the correct remedy for rights violations by TSA agents is the TSA’s complaint box (the Traveler’s Redress Inquiry Program [TRIP]) rather than the federal court system. And if it isn’t, well… take it up with your local Congress rep, I guess.

[T]he question is not whether TRIP maps neatly onto Appellee’s claim. The question is whether Congress has acted or intends to act. And in this context, Congress has acted by establishing TRIP.

While TRIP may not squarely address complaints by an individual similarly situated to Appellee, that silence does not give this court license to usurp Congress’s authority in an area where Congress has previously legislated. That is particularly so because Congress has limited judicial review of TSA decisions and refrained from providing any financial remedy for passengers against TSA employees. For these reasons, we hold that Congress, not the judiciary, is better equipped to provide a remedy here.

The same thing goes for the other part: that recording agents does not interfere with the TSA’s national security directives. Here, the court doubles down on bad precedent and deference to a branch of the government that has rarely, if ever, felt like making the TSA better or more accountable to US citizens.

While we have never addressed a Bivens claim against TSA agents, the Third Circuit has declined to extend a Bivens remedy based upon TSA’s role in national security. Vanderklok, 868 F.3d at 189. In Vanderklok, the Third Circuit held, “the role of the TSA in securing public safety is so significant that we ought not create a damages remedy in this context. The dangers associated with aircraft security are real and of high consequence.” We agree. And although Appellee claims he did not pose a national security risk, it is not our task to ask “whether Bivens relief is appropriate in light of the balance of circumstances in th[is] ‘particular case.’” Egbert, 142 S. Ct. at 1805. To avoid “frustrat[ing] Congress’ policymaking role,” we instead ask whether Congress is better suited than the courts to conduct that balancing, id. at 1803, 1805.

Sure, ask. Ask away. Is Congress “better suited” to create a form of remedy for rights violations by federal employees? Possibly. But it never will because [bangs Fourth Circuit’s head repeatedly against the bench] CONGRESS. IS. COMPOSED. ENTIRELY. OF. FEDERAL. EMPLOYEES.

And that’s not the most ridiculous part of this decision that converts real rights violations into rhetorical questions for the sole sake of giving federal employees a free pass. The Fourth Circuit follows all of this pointless deference and refusal to act as a check and/or balance by claiming, with an apparently straight face, that allowing TSA agents to be sued for violating First Amendment rights would threaten the security of the nation.

As the Supreme Court has recognized, “[n]ational-security policy is the prerogative of Congress and the President,” and to impose damages or liability is likely to “caus[e] an official to second-guess difficult but necessary decisions concerning national-security policy.” Thus, creating a cause of action against TSA agents could “increase the probability that a TSA agent would hesitate in making split-second decisions about suspicious passengers” or disruptions at security checkpoints. The nature and gravity of these risks, and whether they are outweighed by countervailing interests in judicial relief for passengers, make such a situation ill-suited to judicial determination

There it is: the third branch of the government says let the other two handle it, deferring to branches who have changed almost nothing about remedies for federal rights violations in the 50+ years since the Bivens decision. Sure, we should ask for legislation from the bench. But we should also expect them to realize rights violations when they see them and be extremely hesitant to allow government employees to walk away from the damage they’ve done before a jury can take a look at the facts.

Filed Under: 1st amendment, 4th amendment, bivens claim, dustin dyer, filming police, natalie staton, qualified immunity, shirrellia smith, tsa

California City Residents Pay $300,000 To Veteran Brutalized By Officer Who Didn’t Want To Be Filmed

from the your-rights-end-where-my-tackling-begins dept

The deliberate “failure” of a Vallejo, California police officer to respect the rights of a Marine veteran filming him from his own porch will cost city residents $300,000. And that’s on top of the money the city spent defending Officer David McLaughlin from the lawsuit filed by the victim of his brutality, Adrian Burrell. Here’s how that interaction went down, as summarized by C.J. Ciaramella for Reason.

In January 2019, Adrian Burrell, a documentary filmmaker and former Marine, saw the police stopping his cousin. Burrell used his cell phone to record the traffic stop from his porch. When Vallejo police officer David McLaughlin saw Burrell filming him, he ordered him to get back, although Burrell was standing about 20 to 30 feet. Burrell refused.

Officer McLaughlin apparently felt Burrell’s cousin was enough of a threat he needed to keep a gun pointed at him. But when he saw Burrell filming him from his own porch, the threat matrix apparently changed. It was no longer the man on the motorcycle he had pulled over. It was the guy with a camera standing on his own property doing nothing more than passively filming the traffic stop.

“You’re interfering with me, my man?” McLaughlin asked. “You’re interfering, you’re going to get one from the back of the car.”

“That’s fine,” Burrell responded. The officer started handcuffing Burrell, and told him to “stop resisting.”

“I’m not resisting you,” Burrell said.

“Stop fighting or you’re going to go on the ground,” McLaughlin said. Burrell’s cell phone did not capture what happened next, but his lawsuit claims that McLaughlin swung him to the ground and knocked his head against a wooden pillar on Burrell’s porch.

According to Burrell’s lawsuit, he suffered a concussion and an injury to his right eye, along with an assortment of bumps, bruises, aches, and pains. It wasn’t just the brutality, although that was definitely a rights violation too far. It was also the unconstitutional disruption of Burrell’s right to record police officers.

The city decided to settle shortly after discovery began, suggesting it didn’t think things would go well for Officer McLaughlin and might result in more public airing of the Vallejo PD’s dirty laundry. There’s plenty of that. And the officer sued here is right in the middle of the PD’s unwashed unmentionables.

A couple of years after this lawsuit was filed, a whistleblower reported the Vallejo PD “celebrated” officer-involved shootings by bending badge tips to mark each kill in the line of duty. This badge-bending often occurred during celebratory barbecues held by other members of the bent badge tip club. This is from the Vallejo Sun’s report on the $300,000 settlement.

McLaughlin testified in Solano County Superior Court last March that his badge was bent by former Vallejo Lt. Kent Tribble following McLaughlin’s involvement in a 2016 shooting. Tribble testified that he brought badge-bending to Vallejo after leaving Concord police in 2003.

On top of being a badge bender, Officer McLaughlin is a particularly expensive cop. More from the Vallejo Sun:

This isn’t the first excessive force settlement involving McLaughlin. The city agreed to a $270,698 settlement with Santiago Hutchins last year after McLaughlin held Hutchins at gunpoint while off duty in a parking lot outside a Walnut Creek pizzeria in August 2018 in an incident that was also caught on camera.

More than half-million paid out by city residents to cover for one abusive cop. And, given the Vallejo PD’s extreme disinterest in policing itself, Officer McLaughlin will likely continue to brutalize residents and be named in civil rights lawsuits for the remainder of his career, if past results are any indication of future results.

The city is apparently fine with blowing other people’s money to buy its way out of litigation ushered into existence by the regrettable actions of officers neither the PD nor the city have shown any interest in holding accountable. Taxpayers may be able to choose their representation, but they can’t choose who polices them, at least not directly. And as long as the city of Vallejo is willing to cover for its bad cops, city residents will continue to overpay for inadequate service.

Filed Under: 1st amendment, adrian burrell, california, david mclaughlin, filming police, free speech, resisting arrest, vallejo

Appeals Court Corrects Its Previous Error, Holds That Recording Cops Is A Clearly Established Right

from the Supreme-Court-(probably-not-this-one-though)-needs-to-get-on-this dept

In April 2021, the Tenth Circuit Court of Appeals forced itself through uncomfortable legal contortions to award qualified immunity to Denver, Colorado police officers who detained a man, seized his recording device, and made an apparent attempt to delete his recording.

According to the Appeals Court, this was legal and not a violation of rights. The judges pointed to a local law that forbade lying to cops, albeit a law that didn’t actually address what had happened here. The plaintiff, Levi Frasier, told the cops he wasn’t recording them. That was a lie, but it was not illegal. The cited law only forbids lying to law enforcement by making certain statements: specifically, false fire/emergency alarms, falsely reporting crimes, and falsely identifying yourself.

The Denver PD officers didn’t truly believe the man had violated this law. They just wanted to stop him from recording. And they definitely knew what they were doing was, at the very least, a potential violation of his rights because they had received specific training from their own department advising them that citizens had a “presumptive right” to record officers.

None of this ended up mattering at the Appeals Court. The Tenth Circuit judges gave the cops qualified immunity, calling their inability to follow their own training or correctly read a local law “reasonable.” Something is only clearly established if the court says it is, said the court that refused to clearly establish this right.

It is therefore “irrelevant” whether each officer defendant actually believed—or even in some sense knew—that his conduct violated a statutory or constitutional right—more specifically, the First Amendment.

Fortunately, we’re getting a do-over. Not for this specific case, which ended when the Supreme Court decided this case wasn’t worth reviewing.

But a new case has come forward in the same circuit. This one has the backing of the US Department of Justice, which filed its own brief urging the court to fully recognize a First Amendment right to record police officers. And this time, the Tenth Circuit is on top of it.

The facts behind this case aren’t nearly as egregious as the earlier case — the one in which officers specifically trained to respect the right to record stopped someone from recording, seized their device, and attempted to access (if not actually destroy) the recording. But it still was far from innocuous. This (like the earlier case) was pure intimidation by the officer on the scene. From the decision [PDF]:

Early in the morning on May 26, 2019, Abade Irizarry, a YouTube journalist and blogger, was filming a DUI traffic stop in Lakewood, Colorado. Officer Ahmed Yehia arrived on the scene and stood in front of Mr. Irizarry, obstructing his filming of the stop. When Mr. Irizarry and a fellow journalist objected, Officer Yehia shined a flashlight into Mr. Irizarry’s camera and then drove his police cruiser at the two journalists.

Here’s what happened in more detail, just in case the summary leaves too much to the imagination:

Officer Yehia drove to the scene “in full regalia in a Marked cruiser, with every single light . . . turned on.” He exited his vehicle and “intentionally positioned himself directly in front of [Mr. Irizarry] . . . to make sure he intentionally obstructed the camera view of the D.U.I. Roadside sobriety test.” Mr. Irizarry and another journalist, Eric Brandt, “voiced their disapproval of the intentional obstruction” and “began to loudly criticize” Officer Yehia. Officer Yehia shined an “extremely bright flashlight” in Mr. Irizarry’s and Mr. Brandt’s cameras, “saturating the camera sensors.”

Officer Yehia’s actions were too much for even the other cops on the scene.

Officer Yehia continued “harassing” Mr. Irizarry and Mr. Brandt until another officer told him to stop. Officer Yehia got back into his cruiser, “drove right at [Mr. Irizarry] and Mr. Brandt, and sped away.” He made a U-turn, “gunned his cruiser directly at Mr. Brandt, swerved around him, stopped, then repeatedly began to blast his air horn at [the two men].” Eventually, Officer Yehia was instructed to leave the scene due to his “disruptive and uncontrolled behavior.”

When you’ve lost the Thin Blue Line, you’ve pretty much lost everyone. And, in this case, Officer Yehia has lost the support of the Tenth Circuit Court of Appeals, which — like every appeals court in the nation — is limited (by the Supreme Court) to examining only certain aspects of alleged rights violations when determining the applicability of qualified immunity.

Officer Yehia can’t even reach that extremely low bar. Even better, the Tenth Circuit goes on record with this published opinion to establish a First Amendment right to record police officers.

Analyzing the three elements of a retaliation claim stated in Worrell under the facts alleged in the complaint, we conclude as follows:

First, as to constitutionally protected activity, the Tenth Circuit has not recognized a First Amendment right to film the police performing their duties in public. We recognize that the right exists and was clearly established when the incident occurred. Because Mr. Irizarry has alleged facts showing he was exercising his First Amendment right to film the police, he has met the first element of his retaliation claim under clearly established law.

The court says recording police officers meets all the applicable First Amendment standards. It increases government accountability by allowing citizens to become “watchdogs of government activity.” It is undeniably a form of news gathering. And it is “unambiguously” the creation of speech, not just passive conduct.

Was this unconstitutional retaliation against protected speech? Hell, yes it was, says the court. This much is obvious from the reactions of other officers at the scene.

[I]t is reasonable to infer that Officer Yehia came to the scene because Mr. Irizarry was recording the encounter. And because Officer Yehia’s physical interference with the filming and his driving the cruiser at Mr. Irizarry served no legitimate law enforcement purpose, it is reasonable to infer that Mr. Irizarry’s filming substantially motivated those actions.

The footnote attached to this paragraph drives the point home.

Officer Yehia “was ultimately instructed to dep[a]rt the scene due to his disruptive and uncontrolled behavior,” which further supports the inference that his presence at the traffic stop served no legitimate law enforcement purpose.

Officer Yehia cited the Tenth Circuit’s unfortunate decision in Frasier in support of his inability to discern what is or isn’t protected speech. Wrong, says the Tenth Circuit. That decision applied to actions taken in August 2014, well ahead of precedential decisions in other circuits, as well as the Tenth Circuit’s own precedent established with the Western Watershed case (one dealing with Wyoming’s “ag gag” law).

The Tenth Circuit says this is an obviously clear case of retaliation against someone exercising established First Amendment rights. Officer Yehia can continue to be sued for the rights violations he engaged in. And there will be no further question about whether or not the right to record exists in the Tenth Circuit.

Filed Under: 10th circuit, 1st amendment, abade irizarry, ahmed yehia, filming police, free speech, intimidation

Arizona Legislators Want To Make It Illegal For People To Record Cops From Whatever Cops Decide Is ‘8 Feet Away’

from the garbage-lawmakers-protecting-garbage-cops dept

It’s pretty much understood that filming police is protected by the First Amendment. Even in jurisdictions where the highest courts have yet to hand down a definitive decision, police departments have made it clear to officers that filming cops isn’t a crime. This has followed years of jurisprudence and laws being repealed/rewritten to reflect this position — something that has, years after it became necessary, prevented police from abusing wiretapping laws to arrest people for “nonconsensual” recordings of officers performing their public duties in public.

The Supreme Court has yet to issue a bright line ruling on an issue that has been the subject of tons of litigation since the advent of smartphones. Despite this, it’s been assumed by most of the nation that preventing people from recording public employees is, at the very least, going to subject public agencies to expensive litigation.

While they can’t outlaw filming for fear of constitutional challenges and judges deciding who gets to film what from where, legislators are attempting to restrict filming of cops by erecting arbitrary barriers that will make it more difficult to engage in this protected act and make it easier for cops to arrest people for filming them.

This op-ed by Elvia Diaz of the Arizona Republic makes it clear what’s at stake as state legislators push for limits on the filming of law enforcement officers.

Nobody could ever forget police officer Derek Chauvin pressing his knee on George Floyd’s neck for 8 minutes and 46 seconds.

That image will forever be etched on our minds thanks to a bystander who filmed the slow killing, which later sparked racial protests across the nation and led to a reckoning on police brutality in America.

In Arizona, Rep. John Kavanagh and fellow lawmakers backing his House Bill 2319 want to make sure that never happens again.

Diaz makes an extremely valid point. Perhaps the only reason Officer Derek Chauvin is now a former officer and a current convicted murderer is because a bystander filmed the murder of George Floyd, from a distance indiscernible from the bright line proposed by legislators who are sorely in need of being voted out of office.

HB 2319, which already passed the House and got the green light from a Senate panel this week, would criminalize filming cops on the job. Penalties would include up to 30 days in jail.

It specifically prohibits a person from making a video recording within 8 feet of the officer without that officer’s permission.

First off, very few cops are going to give you “permission” to record, no matter what distance you are from them.

Second, you don’t need their fucking permission.

Third, how are cops going to measure out this legislated eight feet? Will they be issued periodically calibrated versions of the old ten-foot pole that conform with the new eight-foot mandate? Or will they just guestimate and decide anyone close enough to record anything clearly has violated the law?

What if the officer decides to move towards the person doing the filming? Does that move by the officer make the filming illegal now that the gap between the filmer and the filmed is less than eight feet?

All perfectly good and obvious questions. The problem is that those proposing the bill have no answers. Really. What the fuck is this even supposed to mean?

The Fountain Hills Republican responded to concerns about officers moving closer to people filming by saying that if they’re acting lawfully and standing still, there’s no reason for the officers to move towards them because they’re not considered suspicious.

Even cops would laugh at this assertion. And they’re on the side of the legislators that are helping shield them accountability.

This 8-foot rule is nonsensical. It’s as nonsensical as the assertion recently made by New York City’s new mayor, Eric Adams. Adams, a former police officer, is giving the NYPD and its terrible unions what they want: “reforms” that restrict how the public interacts with police officers, rather than vice versa.

Adams says the public is obliged to stay the hell away from officers when they’re performing their public duties in public. If you can’t clearly record what’s happening from whatever this suggested distance is, maybe buy yourself a new phone.

“If your iPhone can’t catch that picture with you being at a safe distance, then you need to upgrade your iPhone,” Adams declared. “Stop being on top of my police officers while they’re carrying out their jobs.”

“That is not acceptable and it won’t be tolerated,” he added, letting the implied threat of retribution against bystanders with insufficient smartphones hang, without further clarification.

Fortunately, this new, incredibly vague standard has yet to be codified by the city council. But maybe it will be? Who knows? Mayor Adams seems intent on protecting officers from accountability so it’s likely something as equally stupid as the bill sitting in the Arizona state senate will cross his desk at some point in the near future.

It’s true that the government can place time and place restrictions on First Amendment activity. But an arbitrary eight-foot rule ain’t it. Hopefully, this will dead end before it hits the Arizona governor’s desk. Otherwise, the public will be forced to defend a stupid law against constitutional challenges raised by others on the public’s behalf.

Filed Under: 1st amendment, arizona, filming police, john kavanagh, police

Miami Beach PD Blocks Enforcement Of New Law Miami Beach Cops Abused To Arrest People For Filming Them

from the [fox-overseeing-henhouse]:-goddamn...-this-thing-is-full-of-foxes dept

In May, the Miami Beach city council passed an ordinance that basically made it illegal to come within 20 feet of cops.

The Ordinance prohibits any person, after receiving a warning from a law enforcement officer not to do so, to approach or remain within twenty (20) feet of a law enforcement officer engaged in the lawful performance of any legal duty with the intent to: (1) interrupt, disrupt, hinder, impede or interfere with a law enforcement officer’s ability to perform such duty; or (2) provoke a physical response from a law enforcement officer; or (3) directly or indirectly harass a law enforcement officer.

This law was supposedly needed because occasionally law enforcement is a bit more difficult to perform, like during occasions when there are more people in Miami Beach than usual. But there was some concern this meant Miami Beach officers would be able to arrest people for filming them. That point was raised by one city commissioner during the vote on the ordinance and quickly dismissed by the city attorney.

[Commissioner David] Richardson to Rafael Paz, the acting city attorney: “Is there anything in this provision ordinance that would prohibit someone from videotaping? Because I know that with George Floyd there were some questions about bystanders videotaping the officers, and I know that’s been a topic of conversation over the last year on whether or not that’s permissible activity, so is there anything in this that would prohibit it? Would that be considered harassment?”

Paz: “Commissioner that would not be considered harassing and videoing of our law enforcement officers is legal and permissible under the law.”

LOL. Well, I guess Miami Beach officers have agreed to disagree with the city attorney’s interpretation.

Thirteen people have been arrested under the ordinance, according to arrest data provided by police. At least eight of those arrests were of people who’d been using their phones to record officers. All 13 were young Black men or women. Most of them still face a potential criminal trial, including [Mariyah] Maple.

Here’s what happened to Maple:

[A] previously unreported video [showed] how police pepper sprayed a 27-year-old New York tourist, Mariyah Maple, after she had been peacefully recording a traffic stop in the 600 block of Collins Avenue on July 25.

Maple, who was later charged under the ordinance, can be seen recording as a police sergeant asked her to leave and, before she could respond, whipped his bicycle around like a shield, struck her hand and immediately deployed pepper spray. Sgt. Vincent Stella has been assigned to administrative duty while the department reviews the incident.

As the Miami Herald notes, this is at least the third time in the past few weeks that recordings of incidents resulting in the enforcement of this new law contradict officers’ claims and arrest reports. And two arrests that occurred within hours of each other made national news. Miami Beach officers arrested New York resident Khalid Vaughn as he filmed them beating a handcuffed arrestee. His friend, Sharif Cobb, was arrested shortly after as he filmed officers preparing to transport Vaughn to jail.

Fortunately, those charges have been dropped by the State Attorney’s office. These charges, however, still remain active:

In the aftermath, five Miami Beach police officers wound up charged with misdemeanor battery after prosecutors said they used excessive force in making arrests.

Since the cops can’t seem to get the law right, the law is being taken away from them.

The department announced that it had paused enforcement of the law on Thursday, the same day the Miami Herald reported on an additional incident involving the ordinance in which police pepper sprayed and arrested a woman from New York who had been filming a traffic stop in South Beach in late July. A spokesman said the directive was actually issued late last month, after a series of troubling arrests.

On July 26, Chief Richard Clements “verbally” ordered his deputy chief to suspend the enforcement of the ordinance, according to department spokesman Officer Ernesto Rodriguez.

Officers will now undergo additional training on the “nuances of the ordinance.” But there’s no nuance to be had. The city attorney says it’s legal to film police officers. Police officers don’t want to be filmed. So they arrested people using this new law until someone made them stop. That’s why vague laws that expand police power are so dangerous. If a law can be read as a new way to abuse people and infringe on their rights and protections, it will be.

Filed Under: 1st amendment, filming police, free speech, miami, miami beach, miami beach pd

Law Enforcement Officer Openly Admits He's Playing Copyrighted Music To Prevent Citizen's Recording From Being Uploaded To YouTube

from the [sad-trombone-copped-from-public-domain] dept

Law enforcement officers are no longer pretending they’re such big fans of recorded music they can’t help but start playing their favorite tracks while interacting with citizens who are recording them.

Earlier this year, police accountability activists noticed a new trend: officers were playing tracks by IP big hitters like Taylor Swift and the Beatles when being filmed, apparently in hopes of triggering copyright strikes that would prevent the videos from being uploaded, if not shut down these activists’ accounts completely.

The officers never admitted this was the reason for the spontaneous tune playing. At least not until now. Sergeant D. Shelby of the Alameda County (CA) Sheriff’s Department started playing a track by Taylor Swift while being recorded by members of the Anti Police-Terror Project. And he admitted this was exactly why he was playing this track.

Here’s a description of what can be observed in the embedded video below, courtesy of Zoe Schiffer and Adi Robertson of The Verge.

A confrontation Tuesday between a police sergeant and member of the public didn’t start out unusually. James Burch, policy director of the Anti Police-Terror Project (APTP), was standing outside the Alameda Courthouse in Oakland, California when an officer approached him and asked him to move a banner. As the two argued, the sergeant noticed he was being filmed. Then, he pulled out his phone and started playing “Blank Space” by Taylor Swift — in an apparent play to exploit copyright takedowns and keep the video off social media.

Here’s the recording:

As you can see, this doesn’t always work. The video — with Taylor Swift’s song audible in the background — is still live on YouTube. That this one snuck past the copyright protection algorithms isn’t necessarily a sign the system being reverse-engineered by cops scared of accountability doesn’t work. It probably does. But YouTube has gotten a little better at handling DMCA takedown requests and has made some efforts to respect fair use of copyrighted material.

But if sixty-percent of the time it works every time, it will be enough for garbage law enforcement officers like Sergeant Shelby. This is an officer who confidently told activists the sole reason he was playing music was to keep the public from witnessing his encounter with police accountability activists.

Unfortunately for Sergeant Shelby, none of this worked. Not only did the video make its way to YouTube intact, he’s now under investigation for being a fuckhead (paraphrasing here).

An Alameda County sheriff’s sergeant who played Taylor Swift on the courthouse steps in Oakland will be investigated by higher-ups because it appears as though he was trying to avoid having his interactions recorded and uploaded to social media platforms.

Sgt. Ray Kelly, a department spokesman, said the actions of the sergeant, identified on the video as Sgt. Shelby, “is not something we condone or approve. We have a code of conduct all officers must follow,” adding that the matter will be sent to Internal Affairs.

According to Ray Kelly, the sergeant was also instructed to stop doing this while being filmed. We’ll see if that works. It seems the best way to keep Sgt. Shelby from doing this again would be to can him and let him see if his zero personal accountability attitude will fly in the private sector. At the very least, the department should give him an unpaid vacation and a demotion. He knew what he was doing and he was so sure it would work that he said it out loud while on camera.

Filed Under: accountability, alameda, alameda sheriff's department, copyright, filming police, police