Lentis/Recording Police Activity

The fear of oppression by a tyrannical government is a reoccurring theme throughout the history of civilization. While it is easy to criticize foreign incidences (e.g., Nazi Germany, Socialist Italy, and Soviet Russia) due to the extremity with which their governments acted to limit the rights of their people, we often overlook the ways in which our own government has restricted some of our basic legal rights. The monitoring of voice communication through the electronic "tapping" of telephone lines is of particular interest, as it becomes the central point of discussion. Wiretapping has been conducted since the advent of the telephone in the late 19th century, and was ruled constitutional by the Supreme Court in 1928. Although the 1928 court case declared that wiretapping does not violate the 4th Amendment's protection against unwarranted searches and seizures, it clearly provides the government with the means to secretly monitor the populace. This same privilege is not given to the public; the Federal Communications Act of 1934 (47 U.S.C.A. 151 et seq.) prohibits private citizens from intercepting and disseminating communications. The purpose of this chapter is to discuss the impact that audio and video recording technology has on the relationship between law enforcement officials and the public.

Rodney King
Perhaps the most iconic individual associated with police brutality, the brutal beating of Rodney King serves as a macabre reminder of the deeply rooted racism that pervades some facets of American Society. In March 1991, King and two intoxicated passengers were pursued by California State Troopers along Interstate 210. The pursuit led into a residential district, where local Los Angeles Police Officers arrived at the scene and cornered King's vehicle. The passengers were arrested without incident, but King's alleged aggressive movements towards the officers prompted a physical confrontation. King was tasered and momentarily rendered impotent. The altercation quickly digressed into a brutal beating, of which four LAPD officers took part. The details of the incident would be largely unknown and soon forgotten if it had not been for the video shot by George Holliday from his hotel window. Without sound, the true nature of the altercation is difficult to discern. Regardless, the video captures the unwarranted use of force against a perpetrator who clearly does not pose a threat. The video was continuously aired on a local TV station. The officers were deposed, but the predominantly white jury acquitted all but one. The resulting cultural backlash was nothing short of cataclysmic. Enraged Los Angeles citizens took to the streets in the 1992 L.A. Riots which resulted in 54 deaths and more than 2000 injuries.

Simon Glik
On October 1, 2007, Simon Glik was walking through the Boston Common in downtown Boston when he became a witness to a drug arrest. When he saw three officers removing a plastic bag from a teenager's mouth, he mistakenly believed they were using excessive force and pulled out his cell phone to record the incident. After leaning on the officers to get a better angle and placing the phone into their peripheral vision the officers thought Simon Glik had a gun. Officers asked Simon Glik to continue doing what he was doing at a distance but after not moving away at the officers request, Officers approached him and placed him under arrest for several charges. One of which was for illegal wiretapping and seized the phone.

This arrest, like many similar cases, is based on the Massachusetts wiretapping law, Mass. Gen. Laws ch. 272, § 99 . Created in 1968, the law was written to protect the privacy of citizens from government officials and private detectives. This law has been commonly used to cloak police activity since the law was upheld in a case between a citizen and an officer. Michael Hyde was pulled over during a routine traffic stop when he started a hidden audio recording. The officer accused him of having drugs, searched Hyde and his passenger, and threatened jail time. Hyde wanted to file harassment charges and brought the tape to the police station; instead he was arrested under Massachusetts' wiretap law. The Massachusetts Supreme Court upheld that it was illegal to record an on-duty officer, even in public, if the recording was made secretly.

Fortunately for Simon Glik, the charges against him were dropped in municipal court. Judge Summerville determined the recording was not made surreptitiously and therefore did not violate the Massachusetts wiretapping law. However, this is not the first time, nor will it be the last, that the wiretap law has been used by police to cover their activities even in public space. With the progression and ubiquity of audio recording technology, power has shifted away from police officers as they have come under constant scrutiny by the public eye. Their prevalent use of wiretap laws demonstrate that they are unhappy with this shift.

Anthony Graber
On March 5, 2010, Anthony Graber rode down Interstate 95 in Maryland on his motorcycle. On his helmet was a mounted camera to record his ride. The video from the helmet-cam shows Mr. Graber reaching speeds of upwards of 120 m.p.h. and popping wheelies in traffic. As Mr. Graber exits I-95 and approaches a stop signal, a gray sedan pulls in front of him. A man gets out of the sedan with handgun drawn shouting, “Get off the motorcycle!” It is not until the man reaches Mr. Graber’s motorcycle that he identifies himself as police officer.

Anthony Graber left the scene with not only a reckless driving ticket but also a complete audio/video account of his arrest thanks to his helmet-cam. On April 8, 2010, a month after posting this video on YouTube, Mr. Graber was arrested and charged with the felony of violating Maryland’s Wiretap Law. Four computers from his home were seized and Mr. Graber spent 26 hours in prison. He was put on trial with a maximum sentence of 16 years in prison. Charges against Mr. Graber were later dismissed by Judge Emory Plitt stating, “Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation ."

YouTube Effect
Even with the advent of cellphone cameras and pocket-sized camcorders, recording technologies would not have a significant impact if the public could not view the recordings. As YouTube gained prominence however, information dissemination was changed forever. In the post Cold War era, the media coined the term the ‘CNN Effect’ to describe how twenty-four hour news channels would change the conduct of nations’ foreign policy. The belief was that this new type of “saturation coverage” would increase how meticulously news was dissected and judged.

However, the ‘CNN Effect’ pales in comparison to the modern day ‘YouTube Effect’. No matter how many news teams are patrolling the streets for a story, they will never be as omnipresent as the general public with camera phones and camcorders. Any civilian with such technologies can capture a newsworthy moment on film and post it on YouTube. 65,000 new videos are posted on YouTube every day. With 34 million monthly visitors to YouTube, it is no wonder why videos and information can spread like wildfire.

The Anthony Graber example emphasizes the high impact factor of YouTube on social interactions. YouTube enabled Mr. Graber to share his video with millions of visitors. It is this traffic density that police are concerned with when considering their public image. Even if an officer is following the correct protocol, in the eyes of an untrained civilian, any force may be considered excessive. Thus videos on YouTube can be fuel for groups such as INCITE!, EFAPO, or other community groups critical of police force.

Photography Is Not A Crime
Carlos Miller is the founder of the blog “Photography Is Not A Crime”. The objectives of the blog are to educate amateur photographers on their legal rights and how to handle law enforcement objections to photography.

Copwatch Organizations
Copwatch organizations provide the public with searchable accounts of complaints filed against police officers. These groups also advocate the observation and documentation of police activity.

Police Rights and Protection
While public oversight of officers is critical to preventing and reprimanding police brutality, there is fear that complete freedom for citizens to record officers can have very serious negative implications. The Fraternal Order of Police (FOP) is the largest police union with over 325,000 members. The executive director of the FOP, Jim Pasco, warns that video may be edited, taken out of context, or otherwise manipulated to make officers' actions appear to be misconduct. He fears that there is no accountability for what is done to or with the videos captured by citizens. Pasco also warns of another very serious side effect, "It has had a chilling effect on some officers who are now afraid to act for fear of retribution by video." Law enforcement officials are instructed to follow a strict protocol for the use of force during an altercation. However, the officer's instinctual motive for self-preservation often overrides the learned standard. Faced with the anticipation of a life-threatening situation, the officer may employ excessive force to prevent an escalation of the altercation. To an observer, this may appear to be a blatant abuse of power. Constant oversight by the public can lead to officers utilizing less severe tactics and putting themselves in more dangerous scenarios. Adding additional pressures to officers' line of work should be avoided; their environment is already uncontrollable and often hostile. Some analysts believe that the continued use and spread of police activity footage will only serve to undermine police power and the public's belief in law enforcement. Regardless of opinion, it is clear that new technology has had an enormous effect on how law enforcement interacts with the public. For example, many departments are now training officers to expect to be recorded at all times.

The Justice Institute of British Columbia is Canada's largest public educator facility, with more than 150 new officers graduating from their police academy every year. Several officers-in-training responded to the video of the Anthony Graber arrest on the Institute's Facebook page. Macfarlane says, "...video taping anything takes people out of their element and can easily distract someone from the task at hand. For a job as serious as policing its crucial that distractions be left out of a job that is already dangerous enough." Trainee Lee opines, "It usually reveals one side of the story... An example might be an officer trying to apprehend a criminal using the skills that was taught but deemed excessive use of force to the general public because they do not know what the procedures and protocols are and interpret it as police brutality." Gill states, "I feel videotaping police officers should be illegal because not only does it violate the Charter of Rights and Freedoms; it also obstructs justice, and entertains and informs the society for the wrong reasons." Several other trainees share the same sentiments on videotaping police; it is evident that there are strong feelings against videotaping on duty officers for their safety and continued public trust.

Conclusion
The advent of mobile recording devices has fundamentally altered the relationship between law enforcement officials and the public. The legality of the issue rests upon individual state's wiretapping laws. Although such recordings provide oversight of law enforcement officers, the widespread dissemination of altered or otherwise bias accounts can result in catastrophic social backlash.