The Washington PostDemocracy Dies in Darkness

Ferguson police broke the law when they stopped civilians from videotaping them

Filming police is the American thing to do.

Screengrab from a video which shows Washington Post reporter Wesley Lowery was detained by police on Wednesday while reporting on the unrest in Ferguson, Mo., following the fatal shooting of unarmed teen Michael Brown by police over the weekend. (The Washington Post)

For decades, civil rights activists have struggled to hold rogue police officers more accountable.   Claims of excessive force, racial profiling, and illegal arrests were hard to prove.   In the rare cases when prosecutors brought charges against errant police officers, jurors often did not convict.  “The police were just doing their job” has been a common refrain.

But we’ve discovered we’re now holding one of the most powerful tools for social activism in our purses and back pockets. Last year, for the first time, the majority of Americans (56 percent) owned smart phones, according to a survey by the Pew Research Center. That was a landmark development with great consequences for criminal justice and citizen oversight of law enforcement. There’s been a power shift in favor of everyday citizens and it’s being recorded on iPhones and Androids – then Facebooked, tweeted and Instagrammed. Now all the world has seen how a few bad cops do their job.

This summer, ordinary citizens have put those phones to good work.  They have allowed us to see a New York City police officer put Eric Garner in an illegal choke-hold.  We saw Marlene Pinnock, a 51-year-old grandmother, get held down and punched in the face 10 times by a California Highway Patrol officer.

And then there’s Ferguson, Mo.  We have seen how the police responded to people who, in the main, peacefully protested the shooting of Michael Brown, an unarmed black man.  We saw the police, using assault rifles, rubber bullets, tanks, tear gas, and smoke bombs, wage a “shock and awe” campaign seemingly out of the Operation Desert Storm playbook.

The world witnessed these outrages, in part, because citizens had the courage to videotape what the police were doing.  It takes guts because bad cops don’t like being caught on tape and, in some recent cases, they’ve gone after the photographer. Police in Petersburg, Va. stormed the porch of a young man taping an arrest in his front yard, causing a violent confrontation. Nearby months later, a teenager said police assaulted him for filming a police arrest, too. Then this week in Ferguson, police arrested — on drummed up allegations that they were never charged for — Washington Post reporter Wesley Lowery and Huffington Post reporter Ryan Reilly when they were videotaping the cops.

The law is simple, and it is entirely on the side of the citizen photographers.  The First Amendment of the U.S. Constitution protects the right of anyone to record police in a public place.  The police can place reasonable restrictions on photographers by, for example, not allowing them to enter a crime scene.  But they cannot stop people from standing on the street and filming them while they make arrests, detain suspects, or otherwise enforce the law.

If the police see you filming, they cannot force you to turn over your camera.  They cannot make you delete what you have filmed.  Of course, they can ask you to do any of these things — and the police are very good at making requests sound like orders.  But all you have to do is say something like “Officer, I refuse to consent to you to look at my photos.”  Then you have the constitutional right to be left alone.

It takes guts to record the police, even if it is perfectly legal.  As I often tell my law students, the Bill of Rights is not for wimps.   But think of it as an act of patriotism. The United States Court of Appeals for the First Circuit affirmed, in 2011, the right to video-record the police.  The Court stated  “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”

Police should support these efforts. Cameras improve working conditions for the majority of police officers who are hard-working and law-abiding.  In jurisdictions where police cars are equipped with dashboard cameras, police misconduct complaints have gone down – along with the taxpayer expenditures to settle them. That’s partly why Metropolitan Police Chief Cathy Lanier has recommend a pilot program in which D.C. officers will wear body cameras.   She sees it as a win-win, protecting cops as much as civilians.  The police will have evidence for their cases, and citizens will have evidence when they allege mistreatment. It also can address complaints about discourteous treatment by police – rude conduct or abusive language.   Officers say some citizens don’t treat them very well either.  Knowing a camera is running should make everyone nicer.

The next time you see the police doing something that concerns you, don’t just get mad.  Take out your phone and make a recording.   Think of it as the American thing to do.

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