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Whether or not the courts recognize a constitutional right to record on-duty public officials in public spaces, a more immediate question is whether prohibiting such recordings—or allowing police to effectively prohibit them—is good policy. Here there seems to be little disagreement, at least outside the law enforcement community. In recent months, driven largely by the Graber case, a wide array of publications from across the political spectrum have run editorials against the crackdown on citizen photographers and videographers, including USA Today, The Washington Post, the Baltimore Sun, Popular Mechanics, and even the more conservative editorial boards at the The Washington Times, the Washington Examiner, and the Manchester Union-Leader.
“Let me just say that as a matter of policy I think it’s ludicrous that people would be arrested for recording a police officer,” adds Volokh. “I’m surprised state legislators haven’t gotten more involved in this.” Kreimer says his ideal law would not only explicitly make recording and photographing police legal; it would also provide a way for those wrongly arrested by police to recover damages from the officers who arrest them.
A law like that is likely to face fierce opposition from law enforcement organizations. Jim Pasco, executive director of the national Fraternal Order of Police, says he sees no problem with arresting people who photograph or record on-duty cops. Pasco says his main concern is that activists will tamper with videos or use clips out of context to make police officers look bad.
“There’s no chain of custody with these videos,” Pasco says. “How do you know the video hasn’t been edited? How do we know what’s in the video hasn’t been taken out of context? With dashboard cameras or police security video, the evidence is in the hands of law enforcement the entire time, so it’s admissible under the rules of evidence. That’s not the case with these cell phone videos.”
But Carlos Miller, proprietor of Photography Is Not a Crime, says that’s no reason to prevent people from taking video in the first place. “If a video has been altered or edited, that’s a pretty easy thing to discern,” he says. “That’s going to come out in an investigation. And just because a video has only been in police custody doesn’t mean it hasn’t been altered or edited. Police can edit videos too.”
Or delete them entirely. In the College Park case, a campus police surveillance camera was pointed at the area where Jack McKenna was beaten. But there’s no security video of the incident. Campus police say the camera coincidentally malfunctioned at the time of the beating. A local news station reported that the officer in charge of the campus surveillance video system is married to one of the officers later disciplined for McKenna’s beating.
This is not the first time a police camera in Prince George’s County has malfunctioned at a critical time. In 2007 Andrea McCarren, an investigative reporter for the D.C. TV station WJLA, was pulled over by seven Prince George’s County police cars as she and a cameraman followed a county official in pursuit of a story about misuse of public funds. In a subsequent lawsuit, McCarren claimed police roughed her up during the stop, causing a dislocated shoulder and torn rotator cuff. McCarren won a settlement, but she was never able to obtain video of the incident. Prince George’s County officials say all seven dashboard cameras in the police cruisers coincidentally malfunctioned.
Last March, Justice Lee Ann Dauphinot of the Second Court of Appeals in Texas complained in a dissent that when defendants accused of driving while intoxicated in Fort Worth challenge the charges in court, dash-camera video of their arrests is often missing or damaged. “At some point,” Dauphinot wrote, “courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for.”
‘Trust in Our Authority Figures’
Pasco, the head of the Fraternal Order of Police, says cases where video contradicts police testimony are rare. “You have 960,000 police officers in this country and millions of contacts between those officers and citizens,” he says. “I’ll bet you can’t name 10 incidents where a citizen video has shown a police officer to have lied on a police report.”
Carlos Miller says it would take him just a few minutes to pull 10 such incidents from his archives. He mentions the case of Fort Lauderdale police officer Jeff Overcash, who was forced to resign just a couple of days prior to our conversation. Overcash had claimed in an arrest report that a man was drunk, belligerent, and resisting arrest. Cell phone video taken by the man’s girlfriend showed the officer was wrong on all three counts.
“Letting people record police officers is an extreme and intrusive response to a problem that’s so rare it might as well not exist,” Pasco insists. “It would be like saying we should do away with DNA evidence because there’s a one-in-a-billion chance that it could be wrong. At some point, we have to put some faith and trust in our authority figures.”
Michael Allison, who has some reason to mistrust authority figures, says he won’t accept the sort of plea bargain Illinois prosecutors have offered in similar cases. “Under no circumstances,” he says. “I’ll go to prison before I plead guilty to a crime for exercising my rights. Not even a misdemeanor.”
I ask Pasco if he believes someone like Michael Allison should go to prison, potentially for the rest of his life. “I don’t know anything about that case,” Pasco replies, “but generally it sounds like a sensible law and a sensible punishment. Police officers don’t check their civil rights at the station house door.”
“That just doesn’t sound right,” Allison says. “My civil rights are supposed to protect me from the government. When a police officer is on the job, he’s part of the government. So [Pasco] is trying to say the government has civil rights to protect it from the people? That doesn’t make any sense to me.”