Photography is Not a Crime

45 responses so far ↓

• 1 mepsipax // Jan 25, 2010 at 4:26 PM

  This is ridiculous. He doesn’t feel he deserves the suspension? He deserves to be fired. But hold on Johnny Law hasn’t said his piece yet.
  mepsipax´s last blog ..You guys scare me

• 2 Hazy // Jan 25, 2010 at 4:32 PM

  The cop needed to get a search warrant to obtain the video. All he needed to do was to inform this person not to destroy the tape as it may be used as evidence. Another arrest made because of contempt of cop.

• 3 Maria // Jan 25, 2010 at 4:39 PM

  I don’t get these types of cops. All he had to do was remain “community minded” and let the woman know that they might need the tape as evidence and give her his card and leave it at that.

  However, I do have one question, if in fact they did need the video and had to serve a warrant, how would they know who to serve the warrant to if they didn’t know who she was. She refused to identify herself. It’s a bit of a catch-22.

  No I’m not defending his actions, I’m simply curious.

• 4 torgeaux // Jan 25, 2010 at 4:48 PM

  I’m a little confused as to how the arrest process worked. A police officer swears an arrest complaint, which is factually true (we assume) but on its face doesn’t allege a violation of the law. Other than in the conclusory, “it’s interference/obstruction” kind of way. I mean, if a PO writes out such an order saying, “At Baskin-Robbins, they refused to give me extra sprinkles, and that’s interfering with a police officer,” do they go arrest the B-R guy?

  Saying, “she video taped a confrontation from her property but refused to give it to me” doesn’t describe a crime, so, again, I’m a bit confused about why she was arrested. I guess there’s no review/oversight there.

• 5 Jon Quimbly // Jan 25, 2010 at 4:50 PM

  They knew where she lived (or was staying), it’s not hard to find the rest of her identity from there.

• 6 Roy Kerns // Jan 25, 2010 at 5:27 PM

  An obvious example of why I continue to insist that officials making stupid decisions end up personally bearing some of the costs incurred as a result of those decision.

• 7 Johnny Law // Jan 25, 2010 at 6:52 PM

  This subject was already covered in-depth in the comments to this posting:

  http://carlosmiller.com/2009/01/21/do-police-have-the-right-to-confiscate-your-camera/

  The officer had the right to confiscate it he believed it had evidence of a crime. The Sgt didn’t say he couldn’t legally seize it. He just didn’t want to go through the hassle for a misdemeanor charge. If it had been a felony, I bet they would have taken it.

  A warrant isn’t needed to seize it at the scene to prevent the destruction of evidence. However one would be needed afterwards to actually legally access the pictures.

  Read the comments by Officer Brad in the above link. He does an excellent job of explaining this.

• 8 Rich Demanowski // Jan 25, 2010 at 7:11 PM

  Feh.

  This cop did nothing short of abuse his authority. He could have asked nicely, instead of acting like a jerk. If she still refused after he asked nicely, hje should have informed her that he’d be filing the paperwork for a subpoena.

  Writing a felony warrant against her because she stood up for her CONSTITUTIONALLY PROTECTED right against unreasonable search and siezure? That’s nothing short of using his police authority – which he’s supposed to be using to serve and protect this citizen – as a punitive cudgel.

  Yeah, he deserves to be fired.

• 9 Jay // Jan 25, 2010 at 8:12 PM

  Johnny: “He just didn’t want to go through the hassle for a misdemeanor charge.” Seriously?!?

  The hassle of doing your job? Stop being a cop and go work at Wendy’s or something. If it was THAT important to the crime committed and really needed at evidence then get off your fat ass and do your job. Did I mention do your job?

  This is an abuse of power and a clear case of contempt of cop. He didn’t like it that she didn’t say ‘how high’ when he said ‘jump,’ so he thought he’d make her pay for it. Period.

• 10 Johnny Law // Jan 25, 2010 at 8:28 PM

  @Jay

  Maybe you misunderstood my comment. The sgt told the officer not to seize the camera because it was not worth the effort for a misdemeanor disorderly conduct charge. If it had been a higher charge crime that the lady videotaped, then I am pretty sure the Sgt would have supported the officer in seizing the camera as evidence.

  I personally agree with the Sgt. I’ve observed folks videotaping me as I’ve arrested drunks before. I suppose the video would be decent evidence of how drunk the person was but I did not seize it. However if the drunk had decided to fight and it turned into a resisting charge, then I would have seized the camera as evidence.

  Since you think I am not doing my job, I will make a point of seizing every camera within reach of me after I make an arrest from now on. There. Happy now?

  I think the officer’s pride was hurt in this case and he decided to file charges on the lady because of it. I don’t think he made anything up but I do think he tried to backdoor the sgt and should get into trouble for insubordination.
  Johnny Law´s last blog ..Learning to De-escalate

• 11 Johnny Law // Jan 25, 2010 at 8:34 PM

  @Jay

  Maybe you misunderstood my comment. The sgt told the officer not to seize the camera because it was not worth the effort for a misdemeanor disorderly conduct charge. If it had been a higher charge crime that the lady videotaped, then I am pretty sure the Sgt would have supported the officer in seizing the camera as evidence.

  I personally agree with the Sgt. I’ve observed folks videotaping me as I’ve arrested drunks before. I suppose the video would be decent evidence of how drunk the person was but I did not seize it. However if the drunk had decided to fight and it turned into a resisting charge, then I would have seized the camera as evidence.

  Since you think I am not doing my job, I will make a point of seizing every camera within reach of me after I make an arrest from now on. There. Happy now?

  I think the officer’s pride was hurt in this case and he decided to file charges on the lady because of it. I don’t think he made anything up but I do think he tried to backdoor the sgt and should get in trouble for insubordination.
  Johnny Law´s last blog ..Learning to De-escalate

• 12 Tom Esq. // Jan 25, 2010 at 9:06 PM

  Johnny Law,

  As usual you are completely ignorant of the law and the constitution. Officer’s do not have an absolute right to confiscate whatever they think is evidence. The 4th amendment doesn’t go out the window in this case because the witness might have videotaped the crime. As with security camera footage or other 3rd party footage the police need to get a warrant or have permission to seize the evidence. To be able to seize the evidence at the scene the officer needs to be able to articulate a reason for the exigent circumstance. The bald assertion that she may delete the tape does not rise to that level, there has to be some reasoning behind it.

  This woman’s civil rights were violated, and this officer deserves his punishment.

• 13 Roy Kerns // Jan 25, 2010 at 9:16 PM

  Johnny’s responses provide another demonstration of why victims of abuse must insist that stupidity by officers result in their personally bearing at least part of the resultant costs.

  If Johnny were to demand my camera, I’d insist that we take it to a local media and have its info copied. I’d willingly make concessions that would persuade him I had no intention to leave, no intention or ability to erase, and would wait in order to accomplish the copying at his professional convenience. But I would unconditionally refuse to relinquish control of the camera. He’d have to take the camera from me via force (no debate that he either by himself or with cohorts could do so. But intent to make him liable for increased costs for his stupidity if he did so includes willingness to set and spring trap.) By making a copy, he’d get the evidence (or whatever) that his evaluation of the situation led him to believe important. He’d not get to hide what the evidence said, which is what the ideas behind the Bill of Rights say are important.

• 14 Johnny Law // Jan 25, 2010 at 9:42 PM

  You guys keep thinking that the police can’t seize it as evidence. That doesn’t make your incorrect assumptions true. Once again, read that older post I linked to. It explains things very well. Unfortunately it looks like many people just put their fingers in their ears and go “lah lah lah lah” when you are given facts you find distasteful.

• 15 Hazy // Jan 25, 2010 at 9:54 PM

  What are YOU not understanding JL? This story has a quote from a lawyer specifically stating that unless the camera is used in the commission of a crime, they cannot just seize it even if it is considered evidence.

  Like I said before. This officer needed to explain to the lady not to destroy the video as it may be used as evidence in the arrest, and then go through the typical warrant procedure to obtain the tape.

  That’s all there is too it, anything else you say an unlawful seizure.

• 16 Tom Esq. // Jan 25, 2010 at 10:23 PM

  Johnny Law,

  You keeping thinking 4th amendment search and seizure rules don’t apply when in fact they do.

  I read Officer Brad’s arguments and most of them were laughable. The chain of custody argument is complete rubbish all the police need to do is get the person who made the tape on the stand to verify it’s authenticity even if that can’t happen a witnesses or a victim could do it or even that doesn’t work there are other ways it can get in. The rules of evidence aren’t a very big hurdle. There have been a number of successful prosecutions based on youtube videos.

  The police might be able to detain someone if they are a witness to a crime in certain limited circumstances – again the 4th amendment applies. But if that person refuses to hand over their personal property as evidence and the police have no exigent circumstances to justify the confiscation then they can’t take it. Police do not have carte blanche authority to take whatever they deem to be evidence, period. The Constitutional case law on this is very very clear.

  Further if person asserts their constitutional rights they are not committing obstruction. If that were true it is guilty of obstruction anytime a defendant requests a lawyer or remains silent. Here the woman was within her rights to refuse an unconstitutional police order- no obstruction.

  This officer abused his authority, violated an order which was clearly implied by his superiors directions and let his hot little bald head get the better of him. He deserves 15 days suspension and then some. And you could use a refresher course on the law, take officer Brad with you.

• 17 Johnny Law // Jan 25, 2010 at 10:41 PM

  @Tom and Hazy,

  It’s amazing. I need a refresher course on the law yet I have been taught in several classes by PD instructors and local prosecutors that we are able to seize cameras at the scene if they are thought to contain evidence of a crime. This is because such items are easily deleted and this creates exigent circumstances. A search warrant is then needed after the fact to access the photos and/or video.

  Sorry folks but this is the way it works. If I came across a camera that needed to be seized and the owner didn’t want to release it, they would be charged with interfering with an investigation.

  It has been done a millions times before and will be done a million times more unless there is a Supreme Court case that decides otherwise.

  I don’t know where the lawyer quoted is coming from but his quote directly contradicts everything I was taught and doesn’t match with what I have seen happen in cases I am familar with.

  I don’t know how else to explain it to you.

• 18 Workingindust // Jan 25, 2010 at 11:12 PM

  Johnny I’m sure that you being the ‘knowledgeable and all wise LEO’ that you try to show the world here and other places, you would know that evidence seized like that can be a boon to the defense.

  DA thinks they have a slam dunk case with that tape but then in court, because the evidence was obtained without permission or warrant, it can now be argued to be without merit and dismissed. Who is to say that there wasn’t a full 5 minutes of footage before the actual incident showing that the arrestee was in full compliance with the officer’s orders, but then without cause the cop starts beating the shit out of him? But because the tape was not handled without proper procedure that a warrant provides it opens the door to the accusation that the police tampered with the evidence before it was processed.

  Here’s how he should have gone about it –

  “Miss, if you don’t mind, is it possible I can make a copy of that tape so I can use it in court against this guy?”

  Wow, manners and courtesy, what a concept eh? Kind of goes along with that ‘Protect and Serve’ motto plastered all over your cars right?

  Could he have used this approach? Absolutely and would have gotten much better results IMHO. But instead he acted like a little kid and then assaulted her. When his Sergeant told him to let it go he just couldn’t and then tried to slap her with a felony. That was a case of pure spite, contempt of cop (I’ll show her not to fuck with me!), big man with little dick syndrome, take your pick! This attitude bears itself out even further that he can’t even admit he was wrong not only about the first incident but also about going over his Sergeants head (in the Army we used to have a little phrase when Sergeants have disagreements with subordinates; “Lets go out back and talk about it” and usually that was that!).

  I’m fairly sure that Ms. Watkins still has respect for the PD by the simple fact that she hasn’t sued however with the increased attention this LEO’s stupidity is bringing she might reconsider her position.
  Workingindust´s last blog ..Cruzin

• 19 Carlos Miller // Jan 25, 2010 at 11:18 PM

  It has been done a million times because cops know they can skirt the boundaries of the law and get away with it.

  Even in this case, you have a cop who not only made an unlawful arrest, but he violated a direct order from his supervisor.

  And he is appealing a 15-day suspension?

  In any other industry, he would have been fired. It’s called insubordination. You can’t even collect unemployment if you get fired for insubordination.

  A cop might arrest somebody for refusing to hand over a camera and conjure whatever charges, but those charges will never stick if that person decides to fight them.

  The thing is, most people just accept the charges because it pisses the judges and lawyers off when you decide to take it to trial rather than accept a plea deal or just plead guilty or no contest.

  But the law is the law. You cannot legally seize a camera unless it was used in the commission of a crime if you don’t have a subpoena.

  If a cop tries to seize my camera, you better believe I would insist on a subpoena.

  And if I get arrested for it, you better believe I would take it to trial and make a national issue about it.

• 20 Shane // Jan 25, 2010 at 11:22 PM

  It is pretty stupid of him to fight the suspension, all it does is shed more light on the entire situation, and ultimately he will end up looking worse.

  He should just learn his lesson and take it like a man. He is a man right?
  Shane´s last blog ..Step by Step Unlock and Root Your Nexus One

• 21 Acksiom // Jan 25, 2010 at 11:41 PM

  I can tell you how else to explain it to us. Provide us with conveniently verifiable certification of your real identity and citations supporting your otherwise merely airy, hand-waving, nobody-knows-you’re-a-dog-on-the internet assertions.

  You can claim anything you want, but unless and until you back it up with conveniently verifiable certification, it has about as much relevance and value to the conversation as my neighbor’s dog’s chronic flatulence.

• 22 Hazy // Jan 25, 2010 at 11:52 PM

  @JL

  Sure, your DAs and PD instructors will show you ways in circumventing constitutional law. You have no argument from me there. Constitutional rights are something that can be violated by District Attorneys and the police.

  I’ve seen so many videos where police have no basic understanding of constitutional law. I’m sure they had training just like you. The reason for this ignorance(willful or not) is that they’ve quietly been given permission from their PD to violate the constitution. The corruption comes from the top.

• 23 Tom Esq. // Jan 26, 2010 at 12:02 AM

  I know what prosecutors think. They constantly get things wrong but they’re sly little bastards and they know how to cleverly abuse the system. Prosecutors know that if the police confiscate a camera in violation of a witnesses civil rights the defendant doesn’t have standing to challenge the seizure-thus the evidence gets in even if it’s seizure was unconstitutional. It doesn’t actually make the seizure itself constitutional but it rarely gets challenged because 1.) most people don’t assert their rights 2.) they won’t go through the legal hassle of challenging it, 3.) there’s rarely any point because they’re not on trial and the damages are minimal.

  However now that third parties are starting to stand up for the right to tape police encounters without the hassle of having their property seized it looks a case or two will be brought and cops might have to start changing the way they do business.

• 24 Ariel // Jan 26, 2010 at 12:15 AM

  After reading all that, and hoping never again to see stare decisis (stare decisis et non quieta movere, admitted only meaningful until changed) written so many times, as well as looking at some of the case law… the point is they are not “confiscating”or “seizing”, even though those are the appended legal terms, they are safe guarding while obtaining the warrant. A warrant which can be denied, of course.

  But exigency also requires reason. In this case, given that she refused to identify herself (there isn’t a state in the union that doesn’t require it, but then most if not all states require police by statute to do the same when requested which some police also ignore), the officer would be reasonably suspicious that the evidence might not be retained. It is also obvious that from the transcript that she prized the camera, as one officer pointed out at the link, the officer should have asked if the recording media was removable and could he please have that, and reassure her that she would get it back quickly. I realize that few of you want anything but the illusion of complete and total authority at all times, but people skills go a long way too. Probably farther than threats and intimidation, whether the law is on your side or not.

  This is a link you should read: http://carlosmiller.com/2009/02/03/sooner-state-boasts-its-own-video-vigilante/. That’s the other side of the story. And not the only known case. Had he not retained the original (showing that some of your fellow officer’s comments were less than informed), it would not have been known that the DA or police edited the video to protect the officers and win the case. Stare decisis from another angle.

  Two things I also noticed at the link: the complete naivete by the officers posting regarding their ability to police themselves, and the Canadian cop stressing politeness and empathy when working with people. Likely why I see few complaints regarding Canadian police, but tons regarding US police.

• 25 Pinandpuller // Jan 26, 2010 at 1:34 AM

  What about when the officer put his hands on her and prevented her from going inside?

  Assault?

  Does anyone else think it’s funny that the lady who filmed a misdemeanor was charged with a felony? Not really funny but you know what I mean.

  I’d like to see what happens when exigent circumstances comes into conflict with the castle doctrine.

• 26 Johnny Law // Jan 26, 2010 at 4:01 AM

  Should I provide you with my specific unit assignment and work hours too? Perhaps my academy graduation day? How would that make any difference?

  It doesn’t matter what or who tells you it is legal to seize. The previously mentioned entry provided multiple case law precedents but you guys don’t accept it because you don’t personally agree with it.

  “Lah lah lah lah lah”

• 27 Michaelk42 // Jan 26, 2010 at 7:21 AM

  @Johnnylaw

  Straight bullshit johnny. All you’ve asserted is that some cops will try creative ways of breaking the law to get something they want.

  Strangely, no cop I’ve dealt with has tried this on me while I was working for a newspaper as a photographer. Probably since we know better than to fall for that and to defend ourselves. They couldn’t seize our film fishing for evidence even at the paper, it’s no different for anyone else.

  “Should I provide you with my specific unit assignment and work hours too? Perhaps my academy graduation day? How would that make any difference?”

  Well, johnny, we could find out if you’re really who you claim you are and if you have a track record of asshattery like this at your local department or not…
  Michaelk42´s last blog ..Again with the cluelessness

• 28 torgeaux // Jan 26, 2010 at 8:07 AM

  Johnny Law:

  Here’s what your source said:

  Officer Brad: depending on the jurisdiction, the photographer may not be able to refuse this request – at a minimum, if he refuses he will be held until the proper judicial order is obtained compelling surrender of the images – he will also not be able to touch the camera or cellphone while that judicial order is being obtained (he will either do this voluntarily or will be handcuffed so he cannot)

  Note, this talks about the necessity of obtaining a judicial order. The act of refusing is NOT illegal. The officer making a demand is also not illegal, although lying about the fact that it is illegal to refuse is improper. However, Brad above gets things wrong. The 4th Amendment applies in all US jurisdictions (save for Guantanamo). Also, that same article has two attorneys who specialize in 1st Amendment law and photographer’s rights, and I’ll take their opinion over a random police officer on this matter.

• 29 torgeaux // Jan 26, 2010 at 8:33 AM

  Skoog v. County of Clackamas, 469 F.3d 1221

  This is a good case for this issue. Policeman retaliates against someone who filmed him by getting a warrant and seizing the camera and computer. The seizure was illegal, even with a warrant, as it lacked probable cause. Further, a separate action for retaliation would exist under the law this court laid out in this case…just not for this particular plaintiff.

  Crawford-El v. Britton, 523 U.S. 574 is the Supreme Court case that makes our boy Schismenos liable for a civil action for retaliation. Good luck with that, officer.

  Here’s a good summary on the law of expectation of privacy in this kind of case:

  The Supreme Court has long recognized that containers are subject to protection under the fourth amendment. 7 See Smith v. Ohio, 494 U.S. 541, 110 S. Ct. 1288, 1289, 108 L. Ed. 2d 464 (1990) (per curiam) (brown paper grocery bag); United States v. Place, 462 U.S. 696, 705-06, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983) (luggage); Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1877) (letters and packages). HN3Go to the description of this Headnote.”It is fundamental that, absent some special exception, all containers and packages will receive the full protection of the fourth amendment during a police search.” United States v. Bonitz, 826 F.2d 954, 957 (10th Cir. 1987) (citation omitted). In order to receive protection under the fourth amendment, a defendant must have a reasonable [**12] expectation of privacy in the contents of the container. Illinois v. Andreas, 463 U.S. 765, 771, 77 L. Ed. 2d 1003, 103 S. Ct. 3319 (1983).

  Your point about destruction of the evidence isn’t on point either…it’s contraband that can be seized to prevent destruction…Probable cause to believe that contraband is stored in a container will justify a warrantless seizure so that a law enforcement officer may preserve the potentially incriminating evidence for the period of time necessary to secure a warrant authorizing the search of the container. Texas v. Brown, 460 U.S. 730, 749-50, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983) .

  I may post more if I have more than 10 minutes to look at a very well settled area of the law like this.

• 30 Hazy // Jan 26, 2010 at 11:29 AM

  Well done torgeaux

• 31 I don't have a darn name // Jan 26, 2010 at 11:42 AM

  lol, JL resorts to appeal to authority; his own!! Hilarious.

• 32 Johnny Law // Jan 26, 2010 at 12:25 PM

  @ Torgeaux,

  If you are going to quote Officer Brad, you should also quote all the relevant parts.

  “one other thing, depending on your jurisdiction, you could be charged as an accessory after the fact for failing to provide police with the photographic evidence upon request – you would be considered an accessory because by refusing to provide the photographic evidence, you are aiding the accused in avoiding prosecution”

  Now a search warrant is always preferred method of seizing something for evidence. That is why Officer Brad talks about detaining a subject and not allowing him to touch the device until a warrant can be obtained by a judge. If this can be done in a timely manner, great. However if something goes down at 3am on a Saturday night, odds are it would take hours to get a warrant issued. That is why it is possible to seize the device and secure it until a warrant to search it can be obtained as soon as practical.

  @Michael42,

  Go back and reread the old thread. It goes into great detail about how video from a news organization is a different issue than from some bystander with a camera phone. The video on a server at a news organization is much less likely to be deleted than by Sally Sue bystander. Exigent circumstances is the key here.

  Torgeau references a precedent where contraband was seized to prevent its destruction. This actually supports my point. Just because one item is mentioned in a case doesn’t mean it is the only item allowed to seized. The important part is not the actual item but the reason the seizure was allowed. In this case, to protect it as evidence.

  Right now the bottom line is that the courts have usually allowed the seizure of items to prevent destruction due to exigent circumstances. It doesn’t really matter if it is a handwritten note, fingerprints on a coke can, or a video of a guy getting beat to death in an alley. Officers are allowed to seize it for evidence.

  Now is it possible that a judge will decide that exigent circumstance doesn’t exist in some cases? I suppose with the wide variety of judges out there, anything is possible. After all, searches of vehicles incident to arrest were completely legal and normal procedure for decades and then last year it suddenly became unreasonable to the courts.

  All this has been discussed in the past so I am done rehashing it. I suggest you go read some of the posts by Prosecutor Lisa in which she references multiple cases she uses to defend challenges to cell phone seizures.

• 33 Just a guy // Jan 26, 2010 at 1:09 PM

  @ Johnny Law
  Look man, we get it. I can totally understand you sticking up for your fellow cops. But the problem with you sticking up for them is the same problem people have when they stick up for an abusive, alcoholic parent. Yes, they may think that they are doing the right thing. Yes, they could have the best interests at heart. The problem is that they are still an abusive, alcoholic parent. They do bad things. No matter how many ways you can try to justify it, it still doesn’t change the fact that they are out of control and need to be taught a lesson. Just like this cop. You DO NOT have the right to take ANYTHING from me without cause. YOU DO NOT HAVE CAUSE to take my tape in camera/memory card in phone if I film you in a public place.

  “Good, bad, I’m the guy with the gun.”
  Yea, you really instill a lot of confidence in me with that gem. I just pray that I don’t have cops like you in my town.

• 34 Hazy // Jan 26, 2010 at 1:39 PM

  Once again JL fails to specify any specific law to back up his argument. This song is getting old. I’m sick of these government psyop trolls spewing their garbage on our liberal blogs.

• 35 capn_amurka // Jan 26, 2010 at 1:51 PM

  While I know there are such myopic individuals in almost every big group, it seems horribly short-sighted for Police to argue in favor of their privilege to engage in behavior that either violates the Constitutional protections of an individual or has the appearance of violating the Constitutional protections of an individual.

  Either one is corrosive to the relationship between the people and the community they serve.

  Considering how important good police-community relations are, I want Police in my city (which happens to be Akron, OH) that are circumspect enough to at least ask themselves if their zeal in pursuit of evidence or criminals creates an unwarranted risk of alienation of the community they serve.

  Officer Schismenos didn’t do that; he’ll create more problems than he’ll solve- we don’t need him. Johnny Law doesn’t want to do that; same conclusion.

• 36 Hazy // Jan 26, 2010 at 2:41 PM

  This story reminds me of the BART cop murdering that boy last year. Police started confiscating numerous camera phones. I wonder where all that evidence went?! If it wasn’t for the few people who made it out of that BART station the public would never have found out the truth of what happened.

  When a cop demands that you hand over your camera without a warrant, there’s a good chance he’s attempting to destroy evidence.

  Also what’s the deal with this Prosecutor Lisa? In the comments for the story CM posted about the BART shooting, a few people call into question her legal credentials. Is she even a lawyer?

• 37 wlby aka Dave // Jan 26, 2010 at 4:06 PM

  “one other thing, depending on your jurisdiction, you could be charged as an accessory after the fact for failing to provide police with the photographic evidence upon request – you would be considered an accessory because by refusing to provide the photographic evidence, you are aiding the accused in avoiding prosecution”

  I read that and felt a little sick inside. That’s how police think nowdays. If you don’t bend over backwards to help them, then you are the enemy. Reminds me of the good old “If you have done nothing wrong, then you won’t mind if I search you.”

  People like Johnny just don’t seem to understand the general mistrust the public has for the police. It’s this duck and dodge they do with our rights, and covering each others asses.

• 38 torgeaux // Jan 26, 2010 at 4:07 PM

  Johnny Law: No, that precedent doesn’t support you. As for the other part of Brad, I didn’t quote because he’s legally incorrect, I only quoted him in part because it didn’t say what you thought it said.

  Refusing to assist the police isn’t accessory. I’d love to see some case law or any sort of reference to support a theory that refusing to hand over the camera/tape/film without a warrant is accessory. Please.

  Second, contraband is different because by it’s nature, possession of it is illegal, where potential evidence of a crime is not. Again, I await any reference material supporting this position.

• 39 Michaelk42 // Jan 26, 2010 at 4:57 PM

  @johnnlaw

  “The video on a server at a news organization is much less likely to be deleted than by Sally Sue bystander. Exigent circumstances is the key here.”

  Lulz. News organizations having lawyers on retainer to smack the hands of cops on fishing expeditions is a bit more key. Nice try, though.

  @torgeaux

  Don’t hold your breath, JL’s already spewed what he has and told us he’s taking his ball and going home.
  Michaelk42´s last blog ..Again with the cluelessness

• 40 Dorothy Kernagthan-Baez // Jan 26, 2010 at 6:09 PM

  There was absolutely no reason for any of this to happen. The officer should have asked her politely, and I’m sure she would have been more than happy to share a copy.

  I am a big stickler for good manners. I treat people with courtesy, and I am not shy about gently correcting the behavior of public servants who who are “politeness-challenged.” I have to say, though, that it’s easier to do this now that I am old enough to sometimes address police officers as “son” or “young man.”

• 41 Hazy // Jan 26, 2010 at 6:59 PM

  You obviously haven’t seen the videos of cops tazering old ladies into submission.

• 42 Dorothy Kernagthan-Baez // Jan 26, 2010 at 8:41 PM

  Hazy, I’ve seen them. I’m just saying that I have an edge on calling down badly behaved public servants because I’m usually older than they are. (And I’m not THAT old.)

  I have not had bucketloads of bad experiences with the police…Most of the time they are extremely courteous. The few times I’ve dealt with “bad cops” I’ve complained and vigorously pursued it. I also am a big fan of the thank-you note – I write them often.

  I will say that due to my work as a Family Advocate, I have probably more police contact than the average person. There have been times when I have needed to provide officers with printouts of various laws. (I carry them with me.)

  On occasion, there is an attitude problem evident at the beginning (usually the younger ones), but it’s easily remedied…..

  When asked for my name, I ALWAYS shake hands and if the officer does not offer his or her name, I ask. I make sure to introduce the client the same way I would in a social situation. Then I use that person’s name when speaking.

  Not too long ago, I was pulled over by a deputy I had dealt with in another situation. He had started off a little aggressive previously, but everything had worked out well. We chatted a few minutes, and he ended up offering to help out a client family in need. He also gave me a warning when I really deserved a ticket. (And had he ticketed me, I would not have been angry or fought the ticket in court.)

  I have been threatened with arrest a few times, but I have remained polite (I should be teaching etiquette classes) and not backed down from what I know is right. If it ever came down to it, I hope I would do the right thing.

• 43 Bentor Tazenda // Jan 27, 2010 at 12:26 AM

  If the officer had been my employee I would have fired him for insubordination… not doing as ordered.

  Now – If photographer was thinking a little quicker she could have made the officer an offer like… “I may be able to sell you a copy of the video for $200.00.” I however am an opportunist. If I want something I will pay for it, if I have something I want something in return.

• 44 Booker // Jan 27, 2010 at 5:23 PM

  Over at http://www.ohio.com/news/82574547.html , long local discussion on this topic. Most relevant post I came across concerns two issues brought up here and actually cites law (albeit, Ohio).

  The issues – Is it legal, when challenged for personal information (name, address) by an LEO to refuse to answer? And, when is a videotape of an incident considered to be “evidence” and therefore subject to confiscation by police?

  ORC 2921.29:
  “who reasonably suspects either of the following:

  (1) The person is committing, has committed, or is about to commit a criminal offense.

  (2) The person witnessed any of the following:

  (a) An offense of violence that would constitute a felony under the laws of this state;

  (b) A felony offense that causes or results in, or creates a substantial risk of, serious physical harm to another person or to property;

  (c) Any attempt or conspiracy to commit, or complicity in committing, any offense identified in division (A)(2)(a) or (b) of this section;

  (d) Any conduct reasonably indicating that any offense identified in division (A)(2)(a) or (b) of this section or any attempt, conspiracy, or complicity described in division (A)(2)(c) of this section has been, is being, or is about to be committed.

  (B) Whoever violates this section is guilty of failure to disclose one’s personal information, a misdemeanor of the fourth degree.

  (C) Nothing in this section requires a person to answer any questions beyond that person’s name, address, or date of birth. Nothing in this section authorizes a law enforcement officer to arrest a person for not providing any information beyond that person’s name, address, or date of birth or for refusing to describe the offense observed.”

  The specific offense which was taped was drunk/disorderly – a 4th degree misdemeanor. She did not commit a crime. She did not observe the commission of a felony, nor conspiracy to commit a felony. She was under no legal obligation to provide personal information. Certainly it is antagonistic not to, however antagonistic is NOT illegal.

  As for “exigent circumstances” and confiscation of the camera to preserve evidence, discussion on the thread cites no specific code. It is clearly stated by LEO’s posting that, even if the camera is confiscated, a search warrant would be required to view contents. One veteran LEO mentions that the thought of asking a judge for a search warrant to support a 4th degree disorderly conduct charge is ludicrous.

  As far as I can see, swearing out a 3rd degree felony warrant on someone to obtain “evidence” to support a 4th degree misdemeanor seems a bit over the top…

• 45 Will // Jan 27, 2010 at 10:19 PM

  I would have said: “Oh, you need a copy? I’ll pop in and copy it right now. But, uh, would it really be admissible?”

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