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Citizen arrested for videotaping police encounters file freedom of speech suit

Contrary to what police may think it is not illegal for a citizen to photograph or videotape officers on duty
Contrary to what police may think it is not illegal for a citizen to photograph or videotape officers on duty
Photo by Spencer Platt/Getty Images

As it was reported July 26 by MSN News through Reuters, the widow of the man who died while police officers were trying to take him into custody said her husband was a non-violent person and that she was afraid for his safety on the city streets. Eric Garner's name made national headlines after a video was released showing New York police officers attempting to arrest the Staten Island 43 year-old father of six children. Police responding to a call about a fight centered in on Garner accusing him of selling untaxed cigarettes. Garner denied doing anything wrong and asked to be left alone. While trying to handcuff him, Garner was put into a choke-hold and later died. Police said Garner was resisting arrest, but his family believes that the officer's use of force caused his untimely death. Garner's family met with federal prosecutors and encouraged them to investigate the incident to determine to what extent his civil rights were violated.

Ramsey Orta told Time Magazine that on July 17, he and Garner were trying to decide on a place to eat dinner when his friend stepped in to break up a fight. It was at that point that the police arrived and the situation turned deadly. About a week before Garner's death, Orta filmed another situation in Staten Island where the arrest turned violent. Regardless of harassment he claims he received from police after the video's release, Orta said he is not intimidated to put his camera away especially if he witnesses another encounter between a person from his neighborhood and the police. Because the officer's use of force resulted in a man's death, the New York Police Department demanded that the officer who put Garner is the choke-hold surrender his badge and gun and another officer involved was placed on desk duty. With another video surfacing on July 23 showing Brooklyn police stomping the head of a suspect in handcuffs cuffs, the New York Police Department and prosecutors are conducting investigations into the events.

Allegations of police violence and use of force are not contained within one state or just the big cities. An officer from the Lancaster Police Department responding to a complaint refused to take the citizen's report unless the video camera was turned off. After the caller's friend refused to turn off the device, the person called the desk sergeant to complain and was told it was illegal to film police officers and against department policy for officers to give consent. In March 2010, an Abingdon, Md man was charged with illegal wiretapping for videotaping an officer without obtaining consent. Police searched his parent's home and confiscated the man's camera, computer, and an external hard drive. Facing 16 years in prison, the man was being represented by the ACLU who said people should not fear being charged with a crime just for taking a video. Incidentally, the clip he filmed was of a plain clothes trooper cutting the man off in traffic and later pulling a gun at a stop near Baltimore.

That case was not the first time the ACLU took on a civil rights case where citizen's First Amendment rights were at stake. A 2012 case that went to the United States Court of Appeals in Illinois dealt with citizen's openly recording police officers performing their official duties violated eavesdropping statutes. The judges acknowledged that some conversations that happen in public should remain private, but that the ambiguous statute "obliterates the distinction between private and nonprivate by criminalizing all nonconsensual audio conversations regardless of whether the communication is private in any sense." The Court found in favor of the ACLU saying that the law would have to be revised so to not trample the citizen's First Amendment rights to freedom of speech and freedom of the press.

Regardless of the courts finding in favor of freedom of speech and not criminalizing recordings of police officers actions during the course of their duties, that does not mean that law enforcement officials do not make arrests when a video recording device is present. The ACLU of Pennsylvania filled a lawsuit on behalf of a Temple University undergraduate student who said he was arrested for disorderly conduct after taking a picture on his iPhone of police officers clearing out party-goers. The student was arrested when he refused to leave the premise and claims that Philadelphia police officers violated his civil rights by confiscating his phone to search for pictures and videos. Through a memo in 2011, the police department's commissioner reminded rank and file officers that citizens are protected under the First Amendment to take photos and video record the officers. Charges against the Temple student were dismissed in October 2013, but his lawsuit proceeded forward.

Situations like Garner's are hard to ignore and could easily have been swept under the rug had Orta not taken a video of the arrest. A wrongful death suit is easier to prove with a few minutes of video recording as the evidence substantiating that the officer who put Garner in choke-hold may have used deadly force. Hearing Garner saying that he cannot breathe and seeing the officers continue to subdue the man until he is on the ground unable to move while being cuffed provided public pressure for an investigation into police violence. In most of the videos that go viral on social networking sites, they are shot by ordinary citizens who just happened to be at a place at the time something happens and whip out their cell phones to snap a picture or video to upload for their followers to watch. Providing the person shooting the video does not commit a crime and/or purposefully interfere with the police investigation, they cannot be arrested simply for filming a video as it makes the officer feel uncomfortable. In certain circumstances, these videos provide the only evidence against a public servant who may be abusing their power. After all, if the officers were not doing anything illegal or against their department's policy, a picture or video will not matter.

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