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Good news and bad news on recording the police

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The video above, in which a Broward County, Fla., sheriff’s deputy assaults and arrests a woman for recording him, is disturbing for a number of reasons. First, in every state in America, you are well within your rights to record an on-duty police officer. There are a few limited exceptions, such as if while recording you physically interfere with an officer trying to perform his duties. But as long as you aren’t in the way, you’re protected by the First Amendment.

Second, this means that Broward County Sheriff’s Dep. William O’Brien violated Brandy Burning’s rights several times during the recorded traffic stop. The first instance was when he told her she was committing a felony by recording him, and he demanded she turn over her phone. That was a violation of her First Amendment rights. The second instance is when he physically assaulted her when she had committed no crime. The third was the illegal arrest. The fourth was the illegal detention in a jail cell. A fifth may have been the false charge of resisting arrest. (Although in some states, it is unlawful to resist even an illegal arrest.)

Third, note the arrogant tone with which Dep. O’Brien asserts that he knows the law better than his victim. Of course, he doesn’t. He’s flat wrong about the law.

Fourth, the fact that a Broward County deputy is already facing charges for destroying the cellphone of someone who was trying to record him makes O’Brien’s actions all the more disturbing. Because police officers enjoy qualified immunity from lawsuits, in order to get into court, you must show that not only did a police officer violate your rights but also that the rights he violated were “well established” at the time he violated them. Though the federal courts have found that there is a First Amendment right to record on-duty cops, at least a couple federal judges have also determined that because this is a new area of law, those rights aren’t yet well established enough to overcome qualified immunity.

But we may be nearing the point where that’s no longer the case. The fact that the Broward County Sheriff’s Department put out a memo instructing its deputies that citizens are within their rights to record on-duty cops suggests that police agencies are starting to get the message. That memo, too, has liability implications. Cities and counties are protected by the doctrine of sovereign immunity. In order to proceed with a lawsuit against a government entity (other than the federal government), you must show that (a) your rights were violated and (b) that violation was the result an explicit policy, pattern or practice among police officers in that particular agency. That memo may make it more difficult for Ms. Burning to sue Broward County, but it could also help her case against O’Brien.

But that’s all on the civil side of things. I’m not a prosecutor, but it seems to me that the recorded encounter makes a strong case that O’Brien should no longer be a deputy and probably should be facing his own criminal charges, just like his former colleague.