Police retaliation for taking photos and recordings at issue in Texas civil rights case

Video footage of police misconduct has become a regular feature on YouTube and the TV news. Increasingly, police who step beyond the bounds of their legitimate authority are captured by security cameras, cell phone cameras and even official dashboard recording systems. It was inevitable that some law-enforcement officers would strike back at those who record their actions. Allegations that one cop did just that are at the center of a civil rights lawsuit filed by businessman Michael Haven against the City of Houston and Officer Glen Dickerson -- and the city is backing the officer.

So the city's contention is, explicitly, that photographing and recording the police can "reasonably" (if mistakenly) be interpreted as criminal "interference with public duties."

According to the complaint filed by Haven's attorney in the case of Haven v. Dickerson in the United States District Court for the Southern District of Texas, on November 7, 2007, Officer Dickerson arrived at the plaintiff's car and motorcycle repair shop in a marked vehicle, apparently in response to a summons by a dissatisfied customer. Concerned about a possible lawsuit by the customer, Haven stepped out to photograph the motorcycle that was the subject of the dispute, as well as the police car parked on his property.

Officer Dickerson rolled down the window and commanded that Mike not take a picture of the clearly marked HPD squad car in public on Mike’s property.

HPD officer Dickerson then immediately exited the HPD squad car in an aggressive manner and commanded Mike to produce an identification card. Mike indicated his ID was not on him but in his business building and Mike then entered his business building to get his identification card. Mike did not want to show the officer his identification but Officer Dickerson said it was the law of Texas that when a peace officer request an identification the individual must show an identification. Mike asked Officer Dickerson to wait outside, however, Officer Dickerson entered Mike’s business building behind Mike. Mike verbally disagreed with Officer Dickerson’s demands regarding an essentially civil business matter on Mike’s business property.

At the door to Mike’s office Mike asked the Officer Dickerson to wait outside the office. Officer Dickerson followed Mike into his office and stood next to Mike at an uncomfortably close distance. Mike then retrieved his Texas driver’s license from a billfold on his office desk and gave it to Officer Dickerson.

Mike then picked up the telephone on his desk to place a call. A few seconds after giving Officer Dickerson his valid Texas driver’s license Officer Dickerson grabbed Mike’s arm and cuffed it stating that Mike was being arrested.

Haven was arrested for "assault on a Police officer." Ultimately, the charges were dropped after Haven agreed to volunteer ten hours of time at the Houston Food Bank -- as clear a face-saving arrangement for the city as can be imagined, given a felony charge that is usually prosecuted with great enthusiasm.

While Haven was still in Dickerson's custody, however, the officer discovered that his prisoner hadn't just taken photographs, but was recording audio of the entire encounter.

Officer Dickerson took a tape recorder from Mike’s pocket, which had been recording the events, and listened to the contents as he drove and then Officer Dickerson erased a portion of Mike’s recording.

It is, by the way, perfectly legal in Texas for a party to a conversation to record that conversation.

Haven is, not surprisingly, suing for violation of his First Amendment, Fourth Amendment, Fourteenth Amendment and Fifth Amendment rights, and alleging that city officials "ratified" Dickerson's conduct and engaged in malicious prosecution. In addition to damages and an injunction against further misconduct, "Mike seeks a Court Order that HPD officers be trained to not arrest people for speech, not producing a physical identification or photographing or recording conversations with police."

It's worth noting that, in its motion to dismiss, the City of Houston does not contest Haven's version of events. The city argues several technical points, and then says, basically, that Dickerson may have screwed up by arresting Haven, but it was a reasonable screw-up.

Plaintiff claims his constitutional rights were violated when she was taken into custody by Officer Dickerson. However, there is no constitutional guarantee that only the guilty will be arrested. ...

While Mr. Haven’s actions included speech, a reasonable officer could have concluded that they were not limited to speech. Mr. Haven admitted to verbally disagreeing with Officer Dickerson. He also admitted to photographing the police vehicle and Officer Dickerson, and taping their conversation. Under these circumstances, it is not unreasonable for Officer Dickerson to have believed that Mr. Haven’s relevant actions, taken as a whole, constituted more than “speech only” and that the statutory defense of §38.15(d) was not established. Law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to qualified immunity.

So the city's contention is, explicitly, that photographing and recording the police can "reasonably" (if mistakenly) be interpreted as criminal "interference with public duties" (the §38.15 referred to above).

That clearly opens the door to police retaliation against members of the public who record their conduct. Sure, the city won't pursue prosecutions, but  getting cuffed, slammed across the hood of a car and hauled off to jail is a pretty strong deterrent in and of itself.

Such official attitudes are unlikely to seriously curtail public surveillance of police conduct given the ease with which records can be made and distributed. But they will widen the growing breach between law-enforcement officers and the people they supposedly serve.

email J.D.: civilliberties (at) tuccille.com