War on Cameras

Camera-Stealing Cop: 'How Do You Stop Your Phone?'

Police in Wake Forest, North Carolina, admit an officer was wrong to bust a bystander for recording a friend's arrest.

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WTVD

Robert Johnson was at a bar in Wake Forest, North Carolina, last February when his rowdy friend got into an argument with the staff, who evidently called the police. When the cops arrived, Johnson took out his cellphone to record his friend's arrest. "Protecting my man's civil liberties here," he explained. Although Johnson says he "kept a safe distance" (a point confirmed by the video he shot), no distance is safe enough for camera-shy cops, one of whom demanded that Johnson hand over his phone. "He said that he needed my phone for evidence 'cause I was videotaping the arrest," Johnson told WTVD, the local ABC station, "but I know that wasn't right, so I kept taping." Johnson was right about the relevant law, but that did not stop the cop from forcibly taking the phone, or from manhandling, handcuffing, and arresting him.

Even then, the officer had not accomplished his goal. "How do you stop your phone?" he asked Johnson. "You press the middle button," Johnson helpfully replied. "The stop button."

A few weeks later, Johnson got his phone back, and the charges against him—resisting and obstructing an arrest—were dropped. According to WTVD, the Wake Forest Police Department acknowledges that the officer who arrested Johnson "made a mistake" and says he "has been dealt with," but it won't discuss the matter further. Johnson is talking about suing, which explains his TV appearance.

At least four federal appeals courts have explicitly ruled that the First Amendment protects the right to do what Johnson did: record police as they perform their duties in public. Federal judges in other circuits have agreed, and so does the Justice Department. No appeals court has said otherwise. But back in 2009, the U.S. Court of Appeals for the 4th Circuit, which includes North Carolina, ruled that the right to record police was not clearly established in that circuit as of 2007.

That was the year a Virginia sheriff's deputy ordered Deborah Szymecki to stop recording her husband's arrest for carrying a gun at Norfolk Harborfest (an arrest that turned out to be illegal). In 2008 U.S. District Judge Henry Coke Morgan Jr. agreed with Szymecki that "the First Amendment protects the video recording of the actions of police officers." But because neither the Supreme Court nor any court within the 4th Circuit had previously addressed the question, Morgan said, Szymecki's suit against the deputy was blocked by qualified immunity. The appeals court upheld Morgan's decision.

It's not clear whether developments since 2007, including Morgan's own acknowledgement of the right to record, have changed the legal picture in the 4th Circuit enough for the appeals court to take a different view today. But by 2010, University of North Carolina law professor Jeff Welty was warning police to "be very cautious about ordering people not to record them, and about arresting people for recording them or for failing to obey their command to stop recording." Welty noted that "under state law, citizens can record pretty much any police encounter that they can observe." He added, citing cases in other circuits, that "officers have been sued on First Amendment grounds" for interfering with camera-wielding bystanders. The Wake Forest Police Department's admission that the cop who took Johnson's phone was wrong to do so suggests the right Johnson was exercising is by now well established even in North Carolina, although that does not necessarily mean individual officers understand or respect that right, as this case clearly shows. 

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  1. “Has been dealt with?” Did they disappear him?

    They should add Mr. Johnson’s “Crossroads” to the background of the video.

    1. Maybe. NC bans police collective bargaining in the state constitution (along with all other public servants).

    2. He had to buy the first round at the cop bar.

  2. I would like to see someone argue that this guy didn’t shoot his qualified immunity in the dick. Who is up for it? The department? The cop union?

    1. Even though he was incorrect regarding the law, it was a reasonable mistake, so no foul.
      – SCOTUS

      1. Ah, the nude professionalism.

      2. I don’t think that applies in cases where violations are recently well established by the courts. The mouse living in my barn knows about all the court rulings with regards to this. I will bet that cops in NC have been briefed on it, including those in Wake Forest.

        The guy would have as much luck convincing a court that he didn’t know as he would claiming ignorance of the color of the sky.

      3. Especially since it has been determined they don’t have to actually know the law which they are supposed to enforce. They know the law, they just don’t care, now their whining and crying about no one respecting them.

    2. No real cop unions in NC. Like the teachers, banned from collective bargaining by the state constitution.

  3. Once again, I’m kind of glad this hasn’t happened to me as I would fired on the cop for trying to rob me.

    1. And after 15 to 20 years on death row you would be strapped to a gurney and killed for murdering a police.

      1. Then I suppose I better make it worth it.

      2. I wonder how far my defense would go if I told them I believed what I did was proper, necessary, and within the law.

  4. Johnson got his phone back, and the charges against him?resisting and obstructing an arrest?were dropped.

    You can beat the rap, but you can’t beat the ride.

    1. Until police are arrested for kidnaping, this won’t change.

    2. Agree. Kid’s lucky he wasn’t in Baltimore.

  5. …the officer who arrested Johnson “made a mistake” and says he “has been dealt with,” but it won’t discuss the matter further.

    The disposition of the people police arrest is plastered all over the media, but when one of them breaks the law it’s suddenly all privacy rights.

    1. Well, maybe the people they arrest should get themselves and arrestees union.

  6. According to WTVD, the Wake Forest Police Department acknowledges that the officer who arrested Johnson “made a mistake” and says he “has been dealt with,” but it won’t discuss the matter further.

    I assume that means he’s been instructed on how to delete the video so the next time he illegally arrests someone for recording him he can destroy the evidence.

  7. I would sue the city but agree to drop it if the cop is convicted of criminal charges. Not charged, convicted. If the jury don’t convict, they can pay for it thru taxes.

    1. I’m sure the city would rather pay a ton of money on the condition that they admit to no wrongdoing then look bad by having one of their finest convicted of a crime.

      1. *than*

      2. On the one hand, justice; on the other hand, a wad of cash. Sounds like a win/win to me.

  8. Expecting policemen to actually know the law is an onerous burden.

    1. “Expecting policemen to actually know the law accept the difference between what a given law is, and what they want it to be is an onerous burden.”

  9. the Wake Forest Police Department acknowledges that the officer who arrested Johnson “made a mistake”

    1. Squirrelz!

      Well, that’s progress. It used to be “a mistake was made”.

      1. That’s how you know they’re serious about punishing the officer. I mean, he probably got stuck on desk duty for, like, almost a whole week.

      2. The important thing is that the officer learned something, so it wasn’t really a mistake.. No harm, no foul.

        1. You’re assuming you can teach a pig lessons. Not likely.

    2. One could argue that Johnson’s friend made a mistake arguing bar staff, but he still got handcuffs.

  10. A new training program will be instituted, administered by a “preferred provider” consultant specializing in police procedure. Upon completion of the training, each officer will receive a bump in pay and a commendation.

  11. Any one else find it galling that a Wake Forest resident would culturally appropriate a name?

  12. I’m a cop. I don’t want you to take video of me. I’ll confiscated your phone and destroy the video. I don’t much care if my action is wrong. In the end, your video record will be destroyed, weeks later an internal investigation may or may not find in your favor, and even if it does find in your favor, nothing will happen to me aside from a minor administrative note in my file which the union will have taken out in six months after arbitration.

    In the meantime, I’m still on the street, pulling you and your children over.

    Incentives… A bitch ain’t they?

    1. Not only that, but you can keep doing it over and over and over, knowing that it is illegal, because you won’t receive any meaningful discipline for breaking the laws you swore an oath to uphold.

  13. “How do you stop your phone?” he asked Johnson.

    You amend the Constitution.

    1. By “constitution” you mean the Law Enforcement Bill of Rights?

  14. This is really very simple but no one knows how to deal with this.

    The “police officer” is always a man acting as a police officer. The man (police officer) acted outside of his authority and when he did so, he, figuratively speaking, stepped outside of his uniform and became an ordinary “man on the street.”
    Result: assault, battery, robbery, armed robbery, impersonation of a police officer, unlawful arrest, unlawful imprisonment.

    Solution: file your claim (not a complaint) at court against the man who was acting as a police officer. You, being a man – not a citizen, complainant, bystander, or any other title – were wronged by another man and require restitution.

    Of course, you can also play their game and file a complaint and hope that one of their cronies will feel some heat and rule in your favor. Good luck.

    Filing a claim, as a man, that you’ve been wronged takes all the wind out of their sails and it’s now you against the wrongdoer (the man acting as police officer) and no one else may get involved.

    That said, you do have to know what you’re doing and it takes a bit of learning. Common law is the answer. Don’t play in their legalese game.

    1. Solution: file your claim (not a complaint) at court against the man who was acting as a police officer.

      You do know that the initial pleading in a civil claim is called a “complaint,” right? And while you are certainly free to file it against a police officer in his individual capacity, the defendant also has several options. For one, he can raise defenses relating to his position as a LEO. For another, he can implead other parties, including the municipality. Not sure where you are going with this idea.

      1. And the municipality can fire his ass and refuse to help the former officer’s defense. Don’t laugh, that’s what is happening to Randall Kerrick in Charlotte, the guy who shot Jonathan Farrell.

        A ban on public collective bargaining is beautiful.

    2. And then he could watch the court dismiss his case because you already got his phone back (i.e. the remedy in a case for restitution), and therefore his case is moot.

      And if he hadn’t gotten his phone back, he’d quickly find out that the courts give men acting as police officers all kinds of rights and defenses to such actions that us regular peons don’t get (i.e. qualified immunity, the right to make probable cause arrests, etc.).

  15. “because neither the Supreme Court nor any court within the 4th Circuit had previously addressed the question, Morgan said, Szymecki’s suit against the deputy was blocked by qualified immunity.”

    So the only two groups of people assumed not to know the law are (a) cops and (b) jurors. Cops because such an assumption would mean holding them liable, jurors because they can’t rely on their own legal knowledge but have to accept what the judge gives them.

    Everyone else – know the law at your peril! Or know how an angry cop might “mistakenly” misinterpret or misapply the law.

  16. Back when the Indiana Supremes declared mundanes had no right to resist An Officer Of The Law (pbuh) even when he was committing an illegal act against you, I thought that was an outrageous decision but I am thinking more and more that they were simply accepting the de facto law: a pig’s gotta do what a pig’s gotta do. Had the kid forcefully resisted having his phone taken away from him, could the cop have punched him? Tasered him? Shot him? If it’s okay that the cop take the phone, making a good faith albeit mistaken assumption about his lawful authority, each of those escalations would also have been okay. Sure, the cop was mistaken about his legal authority to take the phone, but he damn sure wasn’t mistaken about his power to take the phone. And I suspect the cop didn’t give a rat’s ass about his authority. (“Respect my authoritah” sounds funny, but we all know Eric Cartman has no authority, merely power.)

  17. “…that does not necessarily mean individual officers understand or respect that right…”

    The only right pigs understand is their right to freely abuse citizens without fear of consequences: https://reason.com/blog/2015/05…..el-brelo-s

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