Federal Jury Says Cops Can't Arrest People for Recording Police Encounters

Last week a federal jury in Oregon awarded damages to an environmental activist who sued the city of Eugene after a police officer seized his video camera and arrested him for wiretapping. In March 2009, Josh Schlossberg was distributing leaflets outside Umpqua Bank in downtown Eugene when Sgt. Bill Solesbee told him to move along. Schlossberg replied that his lawyer had advised him he was not breaking any laws. Solesbee then entered the bank and came back out. When he approached Schlossberg again, Schlossberg took out his camera and announced that he was recording the encounter. The Oregonian describes what happened next:

Solesbee told Schlossberg he needed a permit to set up a table in front of the bank and accused him of blocking pedestrian traffic. Then he asked, "Are you taping me?" 

As the two men argued over whether Schlossberg had notified him he was shooting video, the sergeant pointed at the camera and said, "Gimme that. That's evidence." 

Schlossberg's lawyer [Lauren Regan] said the sergeant then charged the activist, roughly grabbed for his camera and wrenched his arm behind his back. Schlossberg was thrown to the ground, where his head struck the pavement, and felt the sergeant's knee on his neck, Regan said. 

Solesbee seized Schlossberg's camera and arrested him. He was jailed for five hours on charges of resisting arrest and intercepting communications. Prosecutors later dismissed the charges. 

As Simon Glik did after he was arrested for recording an arrest in Boston, Schlossberg complained to the police department, which said Solesbee had not done anything unconstitutional or contrary to policy. Like Glik, Schlossberg filed a federal lawsuit to vindicate his constitutional rights when the police department was unresponsive. In a pretrial hearing U.S. Magistrate Judge Thomas Coffin ruled that Solesbee had violated the Fourth Amendment by examining the contents of Schlossberg's camera without a warrant. As a result of last week's verdict, in which an eight-person jury concluded that Solesbee arrested Schlossberg without probable cause and used excessive force, the city is supposed to pay Schlossberg $4,083 for injuries, $1,500 for pain and suffering, and $200,000 for legal fees.

Regarding the verdict's broader significance, Regan tells The Oregonian, "Across the country right now, legal scholars and lawyers are just eating it up, because it's actually a solid statement of the right to privacy in the age of technology." The outcome also reaffirms that photography is not a crime. In both the Glik and Schlossberg cases, courts found that trumped-up wiretapping charges against people recording public events are unconstitutional. Eugene Police Chief Pete Kerns says the department has changed its policy in light of court rulings since 2009 and now discourages such arrests.

Radley Balko covered "The War on Cameras" in the January 2011 issue of Reason. Reason.tv on the same theme:

[via Radley Balko's Twitter feed] 

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  • Korduroy Kristen||

    now discourages such arrests

    Is that like when they said "don't give Private Santiago a Code Red" in A Few Good Men?

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  • ||

    No, but Mitt Romney is. You can contact him at

    http://www.mittromney.com/

  • ||

    I'm a bicyclist. Does that count?

  • ||

    the city police pension fund is supposed to pay Schlossberg $4,083 for injuries, $1,500 for pain and suffering, and $200,000 for legal fees

    The wonders of strikethough and bolding bring you a better world.

  • ||

    ^^This^^

  • Paul||

    Except taxpayers are the pension funders. If you think for a New York minute that if a police pension fund ran dry due to lawsuite payouts, that taxpayers wouldn't be on the hook. Think again.

  • ||

    Well, we change that law too. Or we make the police carry malpractice insurance. That way, the true shitbags will eventually not be able to afford to be police.

    Until the police have some skin the game besides the horrible specter of a paid vacation (ohh, scary!) this sort of shit is never going to change.

  • sarcasmic||

    You mean police needing to think before they act?

    The horror!

  • ||

    I also support a one strike law for police abuse. Given a system of real accountability, one incident like this and you get actually fired. And lose what vesting you have in pension.

  • ||

    Do you believe for a second these shitbags will ever be held accountable?

    They hold endorsements over candidates to ensure they will never be scrutinized. If a politician ever questions the thick blue wall, they get labelled "soft on crime," the endorsement goes to their candidate and their political future is ruined.

    Not until we have randomly assigned and secret citizen review panels, will police be held to the same standard as actual human beings.

    And thanks for the record. Sounds fucking awesome, man.

  • ||

    No, I don't think this will happen. But it's what I want to happen. Can't this forum be for our dreams as well as our griping?

    Had I the heavens' embroidered cloths,
    Enwrought with golden and silver light,
    The blue and the dim and the dark cloths
    Of night and light and the half-light,
    I would spread the cloths under your feet:
    But I, being poor, have only my dreams;
    I have spread my dreams under your feet;
    Tread softly because you tread on my dreams.

    -

    You are very welcome. 180 gram vinyl is a joy to listen to.

  • Brett L||

    I think the pension death penalty is the only way to change behavior. Sad as the FL prison system is, firing a couple of the worst actors and denying them pension and benefits has more or less pushed it from actively corrupt to hopelessly inept.

  • ||

    This behavior is culturely acceptable. It is unlikely to change. My response is to let people that I know who respect cops how much I hate their fucking guts.

  • ||

    That's always been my policy.

  • ||

    So a dumb cop on a backwards police force jepordizes his future if he tries to let rule of the day trump rule by law??? Welcome to adult life Dick Tracy. This country needs fewer but better people in authority.

  • Zeb||

    And it might be nice to punish the cop in the same way as anyone else who beat the shit out of someone on the street for no good reason would be punished.

  • ||

    This is becoming settled law which means the cops lose their immunity when they do it. To my knowledge the cops haven't won a single one of these cases.

  • adam||

    Unfortunately most cops are indemnified by their departments even when they have personal liability.

  • ||

    There's limits on indemnification. For the little people, at least, you can get indemnified for negligence, but not for willful wrongdoing, and definitely not for criminal wrongdoing.

  • ||

    The operative phrase there is "little people." These animals have codified their superhuman status.

  • ||

    Are they (ahem) criminal cases?

  • ||

    Solesbee probably got fist-pumps, a party, and lots of expensive alcohol from his brothers in blue for the incident.

    Every secretary and female cop also allowed him, I'm willing to bet, to fuck them in the janitor's closet. He's just such an awesome public servant, indispensable and honorable! So dreamy and role-modely!

  • ||

    $4,083 for injuries, $1,500 for pain and suffering, and $200,000 for legal fees

    Sweet. With those kinds of fee awards, there won't be a shortage of lawyers willing to take these cases.

    I'd love to see one of the greasy plaintiffs attorneys make this a product line, complete with teevee ads:

    Have you been wrongfully arrested, searched, or harassed by the police? Have your god-given Constitutional rights been violated by men in uniform? If so, we can help you recover what you owe. Call the number at the bottom of the screen . . . .

  • sarcasmic||

    I didn't think of it that way.

    Seems it's the lawyers who always win, isn't it?

  • ||

    Yeah. You'd think we were the ones making the rules, or something.

  • ||

    They'll still be talking about this scam ten thousand years from now.

  • Anonymous Coward||

    Loser pays. The way God intended for the system to work.

    Now if we could just get legal fees deducted from the offending officer's salary, I could go to sleep with a smile.

  • sarcasmic||

    This still doesn't matter if you can't afford an attorney to take it to federal court.

    Most people do not have the time and money for this, and the police both know and exploit this fact.

    Move along. Nothing to see here.

  • ||

    Since you can get fees, attorneys will take it on contingency.

  • ||

    This still doesn't matter if you can't afford an attorney to take it to federal court.

    But like R C Dean said at 4:08pm, once this has become settled law, lawyers will be lining up around the corner to take these cases on contingency. Of course, the only real money will be through huge, taxpayer-funded settlements, so while it'll be nice to see cops successfully sued, we'll all still wind up paying in the end.

  • ||

    the city is supposed to pay Schlossberg $4,083 for injuries, $1,500 for pain and suffering, and $200,000 for legal fees.

    See! The system WORKS. If you feel as if you have been treated unjustly, you can pursue legal recourse after the fact. The prospect of racking up $200k in legal bills shouldn't dissuade you.

  • ||

    In these cases, the plaintiff is never on the hook for fees.

  • Barely Suppressed Rage||

    charges of resisting arrest and intercepting communications.

    This shit always chaps my hide. The guy was standing there doing nothing illegal, the cop twists his arm behind his back, tosses him to the concrete and kneels on his neck - then the guy gets charged wtih "resisting arrest." What a fucking crock.

    Prosecutors later dismissed the charges.

    As well they fucking should have.

  • ||

    Resisting arrest charges are SOP. They're tacked on to any arrest that involves a touch or reflex. Basically you have to turn around and put your hands behind your back when approached.

  • ||

    Since there was no legal basis for the arrest, how is this cop not being indicted for assault?

  • Cop Union Rep||

    HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!

  • ||

    The only way cops get arrested for assault is when they chuck their ex-girlfriends out of second-story windows.

    And when that happens, they get sentenced to 10x what a non-cop would get a time within sentencing guidelines.

  • Deckard||

    There was something that Bryant said to me about that....wish I could remember what it was.

  • ||

    You live in a police state, fool.

  • Geotpf||

    I would be in favor of a Federal law stating something along these lines:

    Except in cases of national security, patient confidientiality, protection of witnesses, yatta yatta insert legalese here, audio and video recording of any government officials or employees while performing their duties is completely legal in all circumstances. This law overrides any state or local laws to the contrary.

  • Korduroy Kristen||

    Except in cases of national security

    LOL. It's all "national security" now - dinchya know that?

  • ||

    Korduroy Kristen|1.30.12 @ 4:25PM|#

    Except in cases of national security

    LOL. It's all "national security" now - dinchya know that?

    ^^^ or soon will be.

  • ||

    I would prefer: "In all cases, government employees being accountable to their oath of public service, shall be subject to surveillance, both audio and video, by any citizen while that employee is engaged in the duties of his/her office.

  • ||

    I'm still thinking about that video that was referenced here a while back where the police shot and killed a suspect during a no knock drug raid. The cops in that case were cleared of any wrong doing although, I have a hard time understanding how what they did differs from murder.

    So, my thought is, maybe we should pass a law saying that if a cop shoots someone, he loses his job. No questions asked, he is gone from the police force. Of course, if the circumstances warrant, he could face additional penalties. But, at least, the cops would have to think twice before opening fire on someone who is merely holding a golf club.

  • Night Elf Mohawk||

    So, my thought is, maybe we should pass a law saying that if a cop shoots someone, he loses his job. No questions asked, he is gone from the police force.

    You really think that i reasonable?

  • ||

    It would hopefully make them think twice before shooting. And losing your job for shooting someone is a whole lot less of a loss than losing your life because you were shot.

  • Night Elf Mohawk||

    Are you arguing that there are no justified shootings or just that cops should be fired even after a justified shooting?

    What if a private citizen justifiably shoots someone?

  • ||

    The latter - even after. I realize that this would mean some good cops would lose their jobs, but it would also mean that some innocent people would not get shot. I'm not sure how many cases of each we'd have, but a life is worth a heck of a lot more than a job.

    Did you see the video I was referring to? As far as I am concerned, that was murder. Yet, it was ruled a justified shooting. The cop that shot that guy should be in jail. At least with my proposed law, he'd lose his job.

    This law wouldn't have any effect on private citizens, except that they would forfeit the right to ever become a cop.

  • Night Elf Mohawk||

    I realize that this would mean some good cops would lose their jobs, but it would also mean that some innocent people would not get shot.

    Wouldn't it also mean that some innocent people will get killed because some cops aren't going to give up their livelihood to prevent it?

  • ||

    Possibly, but I can't see that happening often. Just having a drawn gun will be enough to resolve most situations. In the cases where they actually need to shoot, it will probably be their own life, or their partner's life they are saving.

    In general, I think zero tolerance policies are stupid, but we're letting cops get away with murder and we need to put an end to that.

  • ||

    The unintended consequences of this would be awful.

    What we might likely end up with are lazy ass cops who put their job in front of public safety.

    The current state of accountability needs to change, but that doesn't mean swinging the pendulum so far in the opposite direction that you've completely negated the ability of the police to protect anyone.

  • ||

    So, if a call comes over their radio to respond to a robbery in process, you think the cops will just ignore it? I just don't see that happening. And, if it does, fire the cops for not doing their job.

  • ||

    So, you fire them for doing their job and you fire them for shooting people while doing their job.

    You realize all you're going to have left are the morons who aren't interested in anything other than free coffe at the 7-11, right?

  • ||

    I remain dubious as to the willingness of the vast majority attorneys to take on a case like this on speculation, particularly absent physical injuries or uniquely sympathetic circumstances.

  • ||

    That's OK. You don't need the vast majority of attorneys to take this case, just one who's making a living off of them.

  • ||

    It appears that his attorney was there when it happened.

  • db||

    the city is supposed to pay Schlossberg $4,083 for injuries, $1,500 for pain and suffering, and $200,000 for legal fees.

    And this is why the state thinks it will always win; and a major reason why our civil legal system is so screwed up. Who the fuck wants to shell out $200k for a chance at recovering about $6k in damages? Once you get dragged into the courts, you better pray you win, or you may have bankrupted yourself.

  • ||

    Often that happens even if you win.

  • ||

    Cockroaches, Burglars and Vampires like to do their work in the dark, unobserved. Public servants shouldn't fall into that category.

  • ||

    It is also important that this happened in a public place or a place that Schlossberg was had a right to be/record.

    Also I'm surprised that the city is paying the fine. In many countries the individual is responsible for committing the offence, and is the liable one, it's only when the companies policy and practice is illegal that an organisation is held responsible..... another case of city hall protecting its own :(

  • ||

    well i guess we don't live in a free nation anymore, this is so distrubing.

  • ||

    I'm glad he won but justice was far from served. The lawyer gets paid, the tax payer foots the bill. But what of the police officer? He gets a dirty look from the judge and it's back to business as usual. Where is the personal accountability? There is a person inside that uniform. If you or I did this we would not be able to bill our neighbors, we'd be sitting in a cell looking at a permanent criminal record. As long as this is the case, all this will do is make lawyers rich. It won't stop this kind of criminal behavior.

  • john schneider||

    yeah.. please donate to the koch brothers' think tank.. corprate "libertarians" koch=cato.. how do you live with yourselves?

  • john schneider||

    http://kochbrothersexposed.com.....o_3_28.php there it is... read it and wake up people.. this site is a wholly owned subsidiary of david koch's machine...

  • ||

    ?

  • ||

    Discourages such arrests?! LMAO, uhhhh, you if you didnt learn your $200,000 lesson I pity you Eugene.

  • ||

    so what is the name of this ruling so i can tell the cops my rights while video taping to avoid such abuse of power?

  • ||

    "Eugene Police Chief Pete Kerns says the department has changed its policy in light of court rulings since 2009 and now discourages such arrests."

    You're the freaking CHIEF! You don't have to "discourage"; you can instruct your subordinates that they are not to do it.

  • ||

    HaaaaHaaaaaHaaa The 1st amendment, and the 4th Amentment ARE ALiVe (o_0)!!! Hot Shot cops need to learn the LAWS.

  • Marina||

    Plz read our situation, find out what is been done to our family, how our medical records have been used to harm us and more.....fBook./themeadowsfmly, @pradera123

  • ||

    If Gingrich was President he'd probably have the judge and jury all arrested for 'judicial activism'.

  • jacob||

    Agree

  • jacob||

    Agree

  • ||

    Then the taxpayer foots the bill for both sides. Win-win. Another Goldman-Sachs, but for lawyers.

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