In several reported cases across the country, obscure laws or existing laws twisted by authorities so that they fit the crime, are used to prosecute individuals for use of a new dangerous weapon – a camera or video recording device.   Authorities that are caught on film attempt to deflect attention on their wrongdoings to the videographer’s “violation” of the law – and it’s being upheld in courts across the United States.

As citizens seek to protect their rights via documented proof of encounters with the authorities, and look to increase their scrutiny of law enforcement officials through technologies such as cell phones and miniature cameras, the police are increasingly fighting back via arrests and even jail time.  Police across the country are using decades-old wiretapping statutes that predate portable multimedia devices, combined with broadly written laws against obstructing or interfering with law enforcement, to arrest people who use microphones or video cameras to film their encounters with the authorities.

Crawford County wiretapping case against Michael Allison

In Bridgeport, Illinois an “eyesore” ordinance prohibits residents from keeping inoperable motor vehicles on their property.  To 41-year-old Michael Allison, the ordinance made no sense.  Allison, a backyard mechanic, received multiple warnings from the authorities but chose to ignore them.  After authorities raided his property and impounded the vehicles, Allison filed a civil suit against the city alleging the laws were a violation of his civil rights.  According to Allison, that was when the police harassment began and he began fighting back.  Allison began recording all conversations he had with the police.

The day before the trial, Allison went to the Crawford County Courthouse and requested a court reporter record the events of the trial.  “If they were going to convict me of this bogus ordinance violation, I wanted to be sure there was a record of it for my lawsuit,” Allison said.  As he talked to the County Clerk, he showed her the tape recorder that he had begun carrying with him everywhere he went.  His request for a court reporter was denied but he did gain the attention of the local judge.

According to press reports, the next day, when Allison arrived for his court hearing, Crawford County Circuit Court Judge Kimbara Harrell stopped Allison in the courthouse hallway.  Harrell asked Allison if he had the tape recorder with him.  Allison confirmed that he did.  Judge Harrell asked if it was turned on to which Allison conceded that it was on and recording their conversation.  Judge Harrell then informed Allison that he had committed a Class 1 felony, a violation if the Illinois wiretapping law.  Harrell found Allison guilty of violating the car ordinance and further found Allison guilty of five counts of wiretapping, a crime punishable by four to fifteen years in prison.

Anthony Graber Possession of an Intercept Device

In April 2010, Anthony Graber was pulled over for speeding by Maryland State Trooper David Uhler.  Graber had a video camera device attached to the front of his helmet that he left running during the encounter.  According to Graber, State Trooper Uhler pulled Graber over and approached Graber with his gun drawn and shouting instructions.  Graber was so upset with Trooper Uhler’s erratic behavior that he posted the video of the bizarre encounter on the Internet.  A few days later, Maryland State Police raided Graber’s home, confiscating computer equipment and arrested Graber for violating Maryland’s wiretapping laws by recording Trooper Uhler without his consent.  Graber was also charged with “possession of an intercept device”.  The statute that was applied to Graber’s use of a video camera was a provision that was originally intended for illegal bugs and wiretaps.

Christopher Drew Filming his own Arrest

Christopher Drew is a sidewalk artist.  In 2010, Drew was arrested for selling one-dollar artwork on the streets of Chicago.  When arrested for peddling without a license, he recorded the arrest on his cell phone.  The misdemeanor charges of not possessing a peddlers license were dropped but Drew was charged with a Class 1 Felony, punishable by 4 to 15 years in prison, for filming the event.

As Drew explained:

“Myself and three other artists who documented my actions tried for two months to get the police to arrest me for selling art downtown so we could test the Chicago peddlers license law. The police hesitated for two months because they knew it would mean a federal court case.”

Drew now faces a 15 year prison sentence.

John Lewis and the Hidden Sunglasses Camera

Benton County Sheriff Deputy Dana Winn was dispatched to John Lewis’s home in Benton County to serve arrest warrants.  The problem was, the arrestee no longer lived at the address.  When Deputy Winn asked Lewis if the arrestee lived at his home, Lewis informed him that nobody by that name lived at his residence.  The video recording of the incident provides a near complete transcript of the true series of events that occurred.

As Lewis explained to the officer, “No, I have no idea where he’s at.  If I know someone has a felony warrant they’re not going to live here.”

Deputy Winn explained to Lewis that he felt Lewis was not being totally honest with him.  He said that he believed Lewis knew more than he was telling him.  Lewis responded:

“I have nothing else to say.  You got the information on who owns this property and you got my name sir,” said Lewis.

Deputy Winn responded by insulting Lewis and threatening to harass him until he acquiesced and told the Deputy where the wanted criminal was living.

Deputy Winn told Lewis, “I’ve been nothing but cordial with you and you’re being a jackass.  I will come back here every day until I find out.  I’ll bang on your door until something happens.”

Deputy Winn also became frustrated when Lewis did not address him properly.  Although respectful, Lewis kept referring to the Deputy as “Officer” and “Sir”.  As such, Deputy Winn threatened to take Lewis to jail.

“It’s not officer, it’s deputy.  I don’t work for the city, I work for the county.  If you have a problem with that we’ll discuss it down at the jail,” said Winn.

Deputy Winn then asked to search the home.  Lewis denied him entry to his home because he did not have a search warrant.  As Lewis explained,

“To me an officer is no different than anyone else that comes up on your property. If you don’t want to answer questions you should not have to answer questions.”

For his lack of “cooperation”, Lewis was arrested for obstruction of justice.  Lewis recorded the entire incident on a camera hidden in the sunglasses he was wearing.  After the video was produced as evidence, the charges were dropped.

The Unruly Bus Stop

In May 2010, LAUSD campus police officer Erin Robles approached a student who was smoking a cigar at a bus stop.  A large group of kids were waiting for the bus when Robles asked the student to put out his cigarette.  The student became unruly and refused to cooperate.  Other students began taunting the officer.  As Robles attempted to gain control of the nearly unmanageable situation, the other kids began threatening the officer.

“I was very scared,” Robles testified. “I got my O.C. spray to control the 15-year-old student that was facing me, and went to spray him.  I Sprayed him for about one, maybe two seconds.  He had hit the pepper spray out of my hands and it landed in between the bus and the sidewalk in the gutter.  It was starting almost a riot.  It was getting very, very wild. There was screaming, people were walking behind me.  There were individuals trying to reach for my O.C. spray that had fallen on the ground.  I was screaming for help on my radio.  I could not leave that weapon there for all the juveniles and a few adults, as well, in the area.  So after the O.C. had fallen out of my hands, I used my right hand and got my baton out next.”

As one student explained,

“She slammed the student into a wall, threw him on the ground, took out her pepper spray, slammed him into the bus, broke the window out of the bus with his head, sprayed him in the face and slammed him into the bus some more.”

High School Student Jeremy Marks (and several other students) filmed the entire incident on their cell phones.  Although Robles claims Marks was one of the primary aggravaters, the videos evidence show Marks standing quietly to the side, filming the incident as it played out.  Marks was charged with “attempted lynching” which is defined as to “incite a riot during an attempt to free a suspect from police custody.”  He was held in jail for several months because he could not afford the bail.

As one advocated close to the case explains,

“After looking at the video, it became quite apparent that this prosecution is not only without merit, it could very well be considered a libelous abuse of power under color of law.”

The Camera as a Weapon

According to a report in The Oregonian, Frank Waterhouse claims that on May 27, 2006 he was brutally assaulted by police after officers followed a sniffer dog onto the property in pursuit of a fleeing suspect.  Waterhouse says that the dog locked on a car, prompting officers to break out a window.  This upset residents who maintain that no one ran onto the property.  It was at that point that an angry resident grabbed a video camera and started to film the incident as it unfolded.

The Oregonian report states: When one woman was told to stop recording, she gave the videocamera to Waterhouse.  He walked to the edge of the property, climbed up a dirt embankment and continued to record.  At one point, he yelled to his friend, “Yes, I got it all on film.  They had no right to come on this property.”

He says that police immediately came after him, and yelled at him “put it down.” Officers moved towards him, and he said, “Don’t come after me.” Waterhouse said seconds later he was shot with a bean bag gun and a Taser and fell to the ground.

What is the law?

The legal justification for most of these arrests lies in existing wiretapping and eavesdropping laws and in some cases, laws that enforce obstruction of justice.  In some states, including Maryland and Illinois, all parties must consent before filming can take place, the exception being unless the filming is obvious to all that a recording is taking place.  In video phone instances, if the police do not consent then the videographer can be arrested.  Most states also include an exception for recording in public places where “no expectation of privacy exists”.  In most instances though, this exception is ignored or explained away.

The problem with these laws being used in such a manner are several fold.  Firstly, antiquated laws being stretched to fit the circumstances is a purposeful and blatant misuse of the law.  Loose interpretations provide substance for future interpretations of the law.

Secondly, in a democratic society, citizens perform a large role in ensuring authorities conduct themselves according to the boundaries of the laws and in a manner that serves the wishes of the people.  That cannot be done if fear of criminal reprisal exists.

In addition, the enforcement of these laws is almost always selective.  Videographers are allowed to film police officers doing good deeds and saving lives even if they are filmed without their consent.  But videos of authorities that are confrontational or embarrassing are typically suppressed by invoking extraneous wiretapping or eavesdropping laws.

Oregon Gets it Right

On Aug. 27, 2008 in Oregon, Vang used his cell phone to capture the arrest of one of his friends at the Valley Lanes Bowling Center in Beaverton.  Vang made no attempt to hide his recording and even narrated what he was capturing, said Vang’s attorney, Kevin Lucey.  He is heard several times saying, ‘Don’t worry. I’ve got it on tape”.

After about 10 minutes, Officer Jason Buelt seized Vang’s phone and arrested Vang.  The city did not return Vang’s phone until two months later, and only after the video file had been erased from the device.  Vang’s attorney said officials made copies of the recording but Buelt deleted the original from the phone before it was returned.

A professional standards investigation sustained an allegation that Buelt should not have deleted the file.  Buelt, now a detective, was disciplined for the violation.  Vang received a $19,000 settlement that ended a Federal lawsuit.

Do videos of authorities help anyone?

According to Carlos Miller at the Photography Is Not A Crime website:

“For the second time in less than a month, a police officer was convicted from evidence obtained from a videotape. The first officer to be convicted was New York City Police Officer Patrick Pogan, who would never have stood trial had it not been for a video posted on Youtube showing him body slamming a bicyclist before charging him with assault on an officer. The second officer to be convicted was Ottawa Hills (Ohio) Police Officer Thomas White, who shot a motorcyclist in the back after a traffic stop, permanently paralyzing the 24-year-old man.”

Cameras and video phones have become the most effective weapon that the general public have to protect against and to expose police abuse – and the police want it to stop.  As journalist Radley Balko declares, “State legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials.”

Sources: ABC News, InfoWars, LA Examiner, The Oregonion