(Mis)conduct of police should be recordable

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First Amendment Center
Imagine Rodney King in the YouTube era.
The beating captured on a camcorder in 1991 was seen on at least 240 TV stations around the world, impressive for pre-digital days, and served notice on law enforcement officers that cameras could capture them at their best — and worst.
Today, when laughing babies can yield 42 million views, images of officers beating a suspect would go viral in minutes.
“Early on in their training, I always tell them, ‘I don’t care if you’re in a bathroom taking care of your personal business. … Whatever you do, assume it will be caught on video,’” Sgt. Heather Fungaroli of the Los Angeles Police Department told the Los Angeles Times on the 20th anniversary of the controversial arrest.

Predictably, with video cameras far more commonplace and smartphones doubling as video devices, Americans are increasingly documenting police conduct through audio and video recordings.
Not so predictable: Many are getting arrested or having recordings confiscated:
In Rochester, N.Y., last spring, Emily Good was charged with obstruction of governmental administration after she shot video of police making a traffic stop. Good was standing in her front yard at the time. The charges were later dropped.
Pending in a U.S. district court in Maryland is a lawsuit filed by Christopher Sharp, who recorded the arrest of a friend by Baltimore police in 2010. The police confiscated his phone and deleted a number of his videos, including family recordings.

Last month, Boston police acknowledged that officers used “unreasonable judgment” in arresting Simon Glik, who used his cellphone to shoot the arrest of a man on Boston Common in 2007. Glik is now suing the police department.
High school student Khaliah Fitchette was arrested by Newark police in 2010 for shooting video of their response to someone falling on a city bus. She was handcuffed and taken to a detention facility, and her video was erased. She was never formally charged and is suing the police.
A freelance photographer on Long Island was arrested in July after he shot video of officers arresting suspects in a police chase. Phil Datz videotaped his own arrest after an officer ordered him to stop shooting on the public street. After the officer’s conduct was widely viewed on YouTube (213,000 times to date), the Suffolk County Police Department decided to drop the charges.
Citizens are sometimes arrested under eavesdropping laws that were designed to prevent the surreptitious recording of a conversation. But does a police officer have a reasonable expectation of privacy while he’s doing his job? And how surreptitious can it be when the camera is in full view?
The cases involving videos of officers generally don’t involve brutality or overt misconduct. More typically, citizens are documenting their own or friends’ exchanges with police; they want something on the record.

Arresting citizens and confiscating videos can mean the violation of three different constitutional guarantees. Gathering information about public employees is protected by the First Amendment, while confiscating recordings can violate the search-and-seizure clause of the Fourth and the equal-protection guarantee of the 14th Amendment. That’s quite a trifecta.
That’s why it was so heartening to see the U.S. Department of Justice step up in federal court last month in the Sharp case, clearly signaling its opposition to the practice of arresting citizens with video cameras.
“The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution,” the department wrote to the U.S. District Court in Maryland. “They are consistent with our fundamental notions of liberty, promote the accountability of our government officers, and instill public confidence in the police officers who serve us daily.”

Just as police officers use technology to watch citizens, including patrol car cameras, traffic light cameras and radar to track speeding, the public has a right to monitor the work of officers on the public payroll.
Like it or not, everything we do in public can be recorded, posted and distributed around the globe in seconds, and no ordinance, state law or department policy is going to change that. The world is watching.
Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com. This article was first published in USA Today Feb. 8.