Sunday, October 2, 2011

The Right to Keep and Bear Cameras

By Tim Dunkin

One of the fundamental premises upon which any truly free society must be based is the notion that the government is open, transparent, and accountable to the citizens. To the extent that this is not the case, a society cannot be called “free,” and it is a notable, and lamentable, fact of modern America that our government at all levels has been growing more and more secretive, less and less accountable for blatant wrongdoing on the part of its officers and employees. Instead of government activity being exposed to the disinfecting light of an informed citizenry, we are routinely kept in the dark about most of what our government does, as it tries to hide the corruption and injustices that would bring the system crashing down around the ears of our “betters” if we the people were to find out about them.

At the federal level, many laws – in the form of “administrative regulations,” and lacking wholly in legislative sanction – are created by an executive branch run amuck, something true regardless of which Party holds the White House. Whether by executive orders that the public rarely if ever knows about, or by the myriad of rules generated by an alphabet soup of unelected bureaucrats in unaccountable agencies, our lives are impacted detrimentally by the coercive powers of the state through means that have completely bypassed the legislature elected (supposedly) to be the close representatives of the people directly in government. Law and regulation are often made at our expense for the good of the favored few who constitute an incestuous circle of lobbyists and influence-peddlers, corporate donors, politicians, public unions, and career bureaucrats.

Just look at the current Solyndra scandal that has finally started to see the light of day (despite the best efforts of the leftist MSM to squelch the story): a “green” company, which just so happened to be an investment opportunity for a certain President and his associates, which received hundreds of millions of taxpayer “stimulus” dollars and ended up collapsing because there was nothing ever really there – it was just a cash funnel for corrupt corporate executives and corrupt politicians working hand in hand. Or what about the LightSquared scandal: revelations that another company (which just happens to be a major donor to high profile Democrats) was to have its open broadband product fast-tracked through the FCC’s approval process, allowing it to bypass the maze of regulations that hinder and afflict its less-favored competitors, despite concerns that said product almost certainly would interfere with civilian and military GPS applications. We all get to suffer degraded GPS performance and military protection so that a corporate Friend of Barack can save some bucks

At the state level, the same applies. Corporate and union corruptions drive much of the closed-door decision-making, and have worked to strangle much of the economic recovery that could have been seen in many of the states across this land. Take, for example, Texas Governor Rick Perry’s executive order a few years ago in which he mandated the vaccination of all pre-teen girls in his state with the anti-HPV (human papillomavirus) drug Gardasil. Thus, just as with all those people who would rather continue to fight the failed War on (Some) Drugs than accept that it’s a catastrophe that does nothing but shred our Constitution, the liberty to decide what goes or doesn’t go into your body takes a back seat to “safety.” As it turns out, Perry had just received thousands in campaign donations from Gardasil’s manufacturer, Merck.

State governments routinely bypass legislatures, create unelected bureaucracies, encourage empire-building, give free reign to its agents to “enforce laws,” and discourage too close inspection by interested and concerned citizens. It is especially at the state and local levels that government agents – police, judges, and so forth – have been actively trying to discourage citizen oversight of their behavior. One or the major means in which this is done is by misusing existing wiretapping laws to criminalize the taping of police and court officials in the performance of their public duties. These laws were most often originally intended to protect citizens against secret taping of private conversations on phones in places (like their homes and businesses) where there was the reasonable expectation of privacy. In other words, some third party, say a business competitor or nosy neighbor, couldn’t install a tap on your phone line without your knowledge and subsequently record your conversations. However, the incidence of police officers arresting (and prosecutors prosecuting) citizens for videotaping the police in their public duties is increasing, relying upon these anti-wiretapping laws as a buttress.

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Before exploring the nuts-and-bolts of this issue, the question any citizen should ask his or herself is why a police officer would feel threatened by someone videotaping them. Why do many police officers get so bent out of shape that they will smash cell phones and cameras, arrest, and beat up people taping them, and threaten them with decades in prison? This pattern of behavior suggests that many police officers believe they have something to hide, something they don’t want going onto a camera that they can’t control and alter at a later date. All too often, that something is some form of official misconduct, often revolving around violence or intimidation done under color of authority. In short, cops don’t want citizens recording them when they harass people, rough them up, or otherwise do things they shouldn’t. And even when police are not doing these things in any particular encounter between officers and citizens, they don’t want the precedent to be set that private citizens could videotape them, hence the many times where police will escalate otherwise peaceful encounters once they realize they are being taped or filmed.

And let’s face it – there are a lot of times when police overstep their lawful authority and abuse their positions. Such as when six officers beat and taser an unarmed homeless man to death in an ordeal lasting 10 minutes. What about when they strip, handcuff, beat, and taser an unarmed suspect after he’s already been “immobilized”? Or when they’re shaking down out-of-state travelers and stealing their cash and other property? How about when they’re pointing guns at and pepper spraying the family of a scared teenage driver who ran from a minor traffic stop and hid out at his parents’ home, after forcibly busting into the home without a warrant? And of course, nobody likes to be videoed when they’re pulling over random vehicles and threatening to kill the passengers. Then there’s the case where Massachusetts cops handcuffed and then beat up a pro-life activist for handing out fliers at a public fair. What about the cop in Ohio who threatened to beat and execute a motorist who informed him of his concealed weapon, like concealed carriers are supposed to do by law? How about when they shoot a Marine in his own home, admitting later that they found nothing illegal going on?

And these are really just the tip of the iceberg when it comes to stories of police brutality, excessive force, and official misconduct.

One thing that several of the stories above have in common is that by one means or another they were caught on tape, and therefore saw the light of day. The police couldn’t cover them up. In several cases, the official police testimony of the events was radically contradicted by the actual video evidence, indicating that the officers involved were lying to investigators. It’s no wonder that police officers, especially those involved in shootings, will go to great lengths to prevent uncontrolled citizen recording of their behavior. For instance, there’s the case of a man in Miami Beach, Florida, who recorded the shooting of a suspect by police on his cell phone. When the police figured out what he was doing, one of them pointed a pistol at his head, smashed his cell phone, and handcuffed him (video here). Fortunately, the owner of the phone had the foresight to hide the memory card in his mouth.

Not an isolated case, of course. A woman in Rochester, New York was arrested for videotaping police officers making a traffic stop in front of her house, while she was doing so from her own front yard. In Concord, New Hampshire, a lemonade stand operator was assaulted and threatened with arrest (for wiretapping) for videotaping a police officer at a farmer’s market. In Maryland, police arrested and charged Anthony Graber with violating state wiretapping laws because his helmet camera captured a state trooper pulling a gun on him and ordering him off his motorcycle. The charge carries with it the possibility of a 16-year prison sentence, while the speeding and pop-a-wheelie that got him pulled over originally only merited a ticket. Police in Suffolk County, New York even arrested a news cameraman for videotaping the tail end of a police chase.

Do the police have such a bugaboo about “civilians” recording them because they know that they may often have something to hide? After all, the police tell people whose vehicles and homes they want to search without a warrant that “if you don’t have anything to hide, then you don’t have anything to worry about.” Why go to such lengths to keep people from recording you in public, unless you think you might be doing something you don’t want people to find out about?

Fortunately, recent rulings are showing this to be one area where the courts, surprisingly enough, are getting it right. Last month, the First U.S. Circuit Court of Appeals ruled that a man who had recorded police during an arrest of a suspect (which included an officer punching the arrestee) had a constitutional right to do so, and in fact, that the police should have known this (PDF of the decision here). In Illinois, a state judge ruled as unconstitutional a state eavesdropping law that was used to prosecute a man who had recorded his interactions with police and with a judge in a closed session, saving him from 75 years in jail. Earlier this year, the Michigan Supreme Court ruled that the public has the right to record police in the performance of their public duties. Back in 2005, the U.S. District Court in eastern Pennsylvania ruled that a citizen who was arrested for videotaping Pennsylvania state police as they performed truck inspections had his 1st amendment rights violated. This case was later used by the 3rd U.S. Circuit Court of Appeals to decide a case in favor of a man who had been arrested on wiretapping charges for videotaping an encounter with state police as a passenger in the detainee’s vehicle.

As such, there does seem to be a good deal of broad-based precedent being built for affirming the constitutionality of videotaping or otherwise recording police as they perform their official duties. This has led at least one state (Connecticut) to consider a bill before its state legislature that would make it illegal for police officers to hinder or harass citizens who videotape them, provided the citizen isn’t directly obstructing the officer’s performance of his or her duties.

As much as liberty lovers criticize our elected officials, we should at least give credit to our legislators when they do the right thing and work to restrict the ability of out-of-control police and other executive agencies to take away our rights and to hide their activities in the shadows. While lovers of liberty have a lot of work to do across the board as far as fighting to regain lost freedom and to keep what little we still have, codifying the right of citizens to “keep tabs” on public officials, including (or perhaps especially) police officers, is a lynchpin in gaining and keeping liberty. With greater authority and the ability to exercise the raw power of state-sanctioned violence necessarily come the need for greater oversight and control by the group who really form the basis of all legitimacy for government – the people themselves. If government agencies and their officers cannot bring themselves to accept citizen oversight and accountability, then those agencies and officers lose their claims to delegated legitimacy, and should rightly be removed. It’s time for lovers of liberty to make this point explicitly clear.