CAN YOU BE ARRESTED FOR VIDEOTAPING THIS?

Consider this scenario: You stumble upon a situation on the street in which you see what appears to be someone being harassed by the police. The subject of the harassment is in compliance with the police officers’ orders, but he or she is still being physically and/or verbally tormented. You know there is not much you can do to intervene, but it occurs to you that you can use your own smart phone to videotape the scene, so you do. Are you within your legal rights to do so? Is there any difference between videotaping police business in public, and videotaping anything else in public?

The answer to those questions appears fuzzy at this time. Just ask Emily good, a 28-year-old Rochester, NY woman who was arrested earlier this summer for videotaping police conducting a traffic stop in front of her house. She used her video camera while standing in her own front yard. She was charged with a misdemeanor for “obstructing governmental administration.” In truth, she was not obstructing anything. Obstruct means to prevent or hinder. She did neither. The charges were later dismissed. Watch what happened:


If Good’s experience were an isolated incident, perhaps we could chalk it up to just one cop exerting power over one citizen in an inappropriate fashion. But it is not isolated. It seems to be happening rather routinely coast to coast. Last year, Hartford County, MD resident Anthony Graber operated his motorcycle on the interstate highway at a high speed. He was pulled over for speeding by a man who identified himself as a state police officer. The officer was not in uniform and was driving an unmarked car. He approached Graber inexplicably holding a gun in his right hand. Graber was wearing a helmet with a camera in it and caught the incident on tape. When he posted the tape online a few days later, he was arrested for a felony charge of violating the state’s wiretapping law. Graber was jailed for 26 hours, not for speeding, but for videotaping the officer. The charges were later dismissed. Here is a report from CBS affiliate WJZ:

If you still question how common these types of arrests are, go to YouTube and put in the search term, “Arrested for videotaping police.” You may be surprised. These incidents beg the question: Does the Constitution protect your right to use cameras or video equipment as you see fit? Many argue the First Amendment protects us in that regard. Does the law vary from state to state or is there federal blanket protection of your rights? In the Maryland incident, Graber was arrested for wiretapping. Wiretapping is by its very nature a clandestine procedure. One does not allow the subject of a wiretap to know he or she is being listened to. Graber’s helmet camera was visible. Nothing was being hidden from the officer. That may have contributed to the charges being dropped.

And what about all the possible variables? What if you are filming your kids in the park, and in the background your camera picks up a cop physically assaulting someone? If your intention was to simply video your kids, but you later take the tape to law enforcement to report the cop’s illegal behavior, are you guilty of something? And what about a law enforcement officer’s illegal activity directed at you? If a cop asks or insists that you do something that is clearly illegal, strictly for his or her own gain or pleasure, and you tape it without the cop’s knowledge, have you somehow violated the law?

And it is not just law enforcement that is pushing the limits of your freedoms. Consider the town hall meeting that was held in Cincinnati this week. Congressman Steve Chabot (R-OH) issued a directive that attendees could not videotape any of the proceedings. Two television stations, however, were allowed to tape the whole meeting. When questioned by attendees who wanted to videotape the town hall, Chabot’s spokesperson said cameras were not allowed to “protect the privacy of constituents.” Watch what happened when two attendees (who were not together) each objected to having their cameras confiscated by a police officer charged with enforcing Chabot’s directive:

This makes one wonder what else the Congressman could insist upon in his town hall meeting. It should be noted that what appeared to be an open forum between him and his constituents actually was quite staged. Instead of allowing a free-flowing conversation, Chabot insisted that all questions had to be submitted to him and his staff before the town hall, and he chose to answer just those that suited him. If I were attending the meeting and my phone was confiscated, what if someone in my family had been trying to reach me to inform me of an emergency? I would not get the message until after the meeting. Chabot’s actions, which made national headlines the next day, appear to smack of First Amendment violations and censorship.

In short, here is what this is really about: Technology is advancing much faster than our ability to accommodate it legally and ethically. Suddenly we are all videographers, and we are relying on centuries-old laws and traditions to deal with our use of our modern equipment. Even if Chabot’s directive against video is somehow legal, is it ethical? Is there a difference between what I see through my own eyes and what I see through the lens of my video camera? Not really, but Chabot’s self-centered approach was to prevent widespread distribution of his comments via the Internet. He would deny it, but that was obviously his intention. By controlling his environment he restricts the flow of information. And again, doesn’t that imply his denial of the First Amendment?

Law enforcement employees (and they are indeed employees) and elected officials are clearly abusing their positions in the cases described herein and in many others. Until recently, the courts were not terribly sympathetic to citizen complaints regarding videotaping arrests. That seems to be slowly changing. The case some consider a watershed moment in this issue is that of Mitchell Crooks, a Las Vegas videographer who was beat up by Officer Derek Colling. Watch:

Colling, who has also been involved in the killings of two private citizens in the past five years, was put on paid suspension after this incident. That was in the first week of April. In July, a Vegas police internal investigation sustained Crooks’ complaint against Colling, which means Crooks’ case can go forward. That’s progress. Still, since Colling was found in violation of department policies, why is he still employed? It is clear from the video and from the department’s own findings that Colling physically assaulted Crooks, and that he purposely tried to destroy Crooks’ camera. If I did that, wouldn’t I be locked up? And how will the Vegas police make a case that their officer’s job performance was in any way obstructed by Crooks and his camera?

Here’s a thought: All that energy that cops and politicians are extending to cause videographers like you and me to stop using our equipment? Why not use that energy to combat another technological advancement that truly is a threat to all of us? Why not start arresting people for texting while driving? Texting behind the wheel is going to cause a lot more death and destruction than anybody’s video camera ever could. Just a thought. Are you listening officers? And how about you Congressmen and women…if you want to save your jobs and some lives all at the same time, consider it.