Photographing Police: Deletion Is Not Forever

Geoffrey.landis writes "The courts have now ruled that the public has the right to videotape the police in the performance of their duties. Of course, that doesn't stop the police from harassing people who do so — even journalists, who sometimes have their cameras confiscated. As it turns out, though, they're not always very knowledgeable about how deletion works. I would say that erasing, or attempting to erase, a video of police arresting somebody illegally (How can a journalist be charged with 'resisting arrest' when he was not being arrested for anything other than resisting arrest?) is a clear case of destruction of evidence by the officers. Destroying evidence is obstruction of justice. That's illegal. Why haven't these police officers been arrested?"

Comments

Two separate things here

[Anonymous Coward]

he wasn't arrested for filming the police, he was arrested for disobeying a dispersal order.

I'm not saying whether that's right or wrong, and I am aware he is a member of the press (though with some claiming that ANYONE can be a member of the "press").

However, it's also possible for police to issue a lawful order to disperse that, if not obeyed, could result in arrest — alongside a charge of resisting arrest.

The individual was being arrested for failure to obey a dispersal order, which was exactly what the officer said, not for "resisting arrest".

Further, it's the submitter's OPINION that this person was being arrested "illegally". That's something the courts will now decide. The troubling part is that the video would probably be the key evidence in such a case, I agree.

Of course, it's pretty clear that he disobeyed a direct (and likely lawful) order to disperse, and whatever happens after that I sort of lose interest in. :-/

Re:Two separate things here

[Old time hacker]

The good news is that, in a court, if one party destroys evidence, the court is required to assume that the evidence is favorable to the other party. I.e. if the cops destroy a video, then the court assumes that it would be in favor of the defendant.

Re:Two separate things here

[kilfarsnar]

he wasn't arrested for filming the police, he was arrested for disobeying a dispersal order.

No, RTFA.

Miller was charged with a single count of resisting arrest. "Aside from a blatant violation of Mr. Miller’s First Amendment rights to record matters of public interest in a public place," Osterreicher wrote, "we do not understand how, absent some other underlying charge for which there was probable cause, a charge of resisting arrest can stand on its own?" "We believe that the recovered video of the incident will show that officers acted outside of their authority, in violation of the First, Fourth and Fourteenth Amendments of the United States Constitution as well as the Privacy Protection Act of 1980 and similar protections provided by Florida law," he wrote.

Re:Two separate things here

[kulervo]

What you are talking about is Spoliation (seriously, that's the spelling), and it can be a jury instruction, where the judge tells the jury that they should assume that the contents of the destroyed evidence (tape, image, whatever) showed that the officer was doing whatever it was the photographer says he was doing.

It could be worked like this hypothetically: I take video of police brutality, some officers come over, rough me up, take my tape, and I yell out: "This is police brutality! I'm going to sue you! That tape is evidence!" If the cop then deletes the images, destroys the tape, etc, then he has committed spoliation. When/if I sue the cop, and depending on jurisdiction, I can either: a. File a motion for sanctions and fines because the cop destroyed the evidence; b. File a motion to have the judge tell the jury that they should assume that the tape showed the judge roughing me up; or c. File an civil complaint on the topic of spoliation alone, and then even if I lose on the battery case, I might still win on the destruction of evidence case.

Jurisdictions very, don't try this at home, try not to go out into the world with a machine that still uses tape (my hypothetical apparently took place 10 years ago). There is a decent and free law journal article on the topic in Illinois, and we are very much having the video-tape-the-police-discussion here. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1536805#%23

Re:Two separate things here

[gubers33]

Problem here, he wasn't charged with anything other than resisting arrest. He was not charged with failure to obey a dispersal order. Funny, because I was not aware that charge could stand on it's own. Being a member of the press, he was allowed to be there according to the First Ammendment " record matters of public interest in a public place.", meaning he was allowed to be there to document the event as a member of the press. The police then attempted destroyed evidence of their unlawful actions. The attempted deletion of the video is a blatant admission of their guilt, these officers should not only lose their jobs, but he charged with obstruction of justice and serve prison time.

Re:Two separate things here

[KhabaLox]

The individual was being arrested for failure to obey a dispersal order, which was exactly what the officer said, not for "resisting arrest".

No, he wasn't. From TFA:

Miller was charged with a single count of resisting arrest. "Aside from a blatant violation of Mr. Miller’s First Amendment rights to record matters of public interest in a public place," [National Press Photographers Association General Consul] Osterreicher wrote [in a letter to the Miami-Dade PD], "we do not understand how, absent some other underlying charge for which there was probable cause, a charge of resisting arrest can stand on its own?"

Now, I agree that there are occasions where the police can give lawful dispersal orders, but I don't believe those orders should apply to members of the press who are documenting events (and not participating in whatever actions are causing the police to call for dispersal). Of course, as you point out, it is extremely difficult for police on the ground to identify who is "legitimate" press (and hard for us as a society to decide what "legitimate" press even is). But the thorniness of that problem should not give police the blanket authority to disperse/arrest everyone and prevent documentation of such events.

You mentioned "two separate things": the charges for which he was arrested; and the "opinion" that the arrest was illegal (it's a minor point, but I agree with you). You left out a third thing, which is probably the most important part of this piece.

After he was arrested, while the police had his camera in custody, they allegedly erased video of the events up to and including his arrest. I can't think of any reason this can be justified. If the footage was taken illegally (which may be the case since the appellate ruling referenced was for a MA case and may not apply in FL - IANAL), then the police should have preserved the evidence for trial. If the footage was not taken illegally, then there is no reasonable cause for them to delete it either. I don't think I would hold the police to a 100% standard in terms of returning property whole to suspects - it's possible if they impound your car that it get's dinged accidentally in the impound lot; your phone or computer may get dropped (not "dropped" - that would be a problem) on the floor of the evidence room. Accidents happen and like I said, I would expect the police to be perfect. But here it seems someone deliberately access the camera's memory and selectively deleted videos. It's hard to construe that as accidental.

Bottom line, once the police have evidence in custody, they are obligated to preserve it. That apparently didn't happen here, and if the allegation are true and there are no repercussions, then it is indeed a scary (police) state we live in.

Re:Duh, if you're not a cop you're little people

[n5vb]

The simple reason that police are not arrested for destruction of evidence is that the police enforce the law. And the police cover for each other when they break the law. Therefore the police are above the law.

Worth noting the difference between de facto and de jure here. The police are not above the law in a purely de jure sense as there is theoretically some degree of accountability. Practically speaking, in most cases, they are above the law to some extent in a de facto sense, because it's extremely difficult for ordinary citizens to make complaints against them stick in court.

(Although in most states, the state police do have oversight responsibility over local PD's, and the FBI has oversight responsibility over state and local police. Which is one of many reasons local PD's aren't fond of state police or the Feds. And one reason you do want to be able to find contact info for your state police and FBI in the phone book.)

Learn your Katrina history

[Bayoudegradeable]

Remember the Katrina shootings: http://www.huffingtonpost.com/2012/01/27/mistrial-declared-in-katrina-shooting_n_1239525.html After enough mistrials, the case will likely be quietly dropped as the public forgets. Shit it has been 7 years already.

Please don't make comments if you don't know what you are talking about! (oh, wait, this is slashdot...) And forget?? Where you live 'people' might forget but here in New Orleans we forget very, very little of Katrina. Officers that did the shooting have been convicted and sentenced. The mistrial you point out is for one officer who was on the cover up side. Dugue was not even involved in the shooting. Please don't spread ignorance. (and don't back-peddle saying it was the cover-up dude getting off. He's not off, there's just been a mistrial)

Re:Privelege

[Anonymous Coward]

Why not fully comply with a Cop, format the card, take it home and run Photorec? ( http://www.cgsecurity.org/wiki/PhotoRecPhotorec)
Undeleting isn't a crime :)

Re:Slouching toward Fascism

[royallthefourth]

Also when your country has one of the highest incarceration rates you can't really claim to be very free.

It's actually the highest. The highest in any place on the planet at any time in history.

Re:Privelege

[INeededALogin]

Why not fully comply with a Cop

Your solution is to accept an invasion of your rights from a person in power because you can do some extra work to re-gain what was lost?

Re:Head's hurting

[spire3661]

Thats why you ask.

1. Am i being arrested?

2. Am i free to go?

Re: Judges ruling

[Jappus]

In which case a judge would not be able to declare a constitutional amendment unconstitutional, but this has happened.

But, and get this, only if it violates other parts of the constitution.

As far as I understand it -- and I am neither a lawyer nor a US-American -- amendments to the US constitution can only be made ineffective by the Supreme Court declaring them unconstitutional (i.e. it violating either a prior or a later, other amendment), but only repealed by the legislative branch (Senate/House of Repr.) by introducing a new amendment; which has happened with the 18th amendment (prohibition) that was repealed by the 21st after the Supreme Court ruled it violated the 4th and 5th amendment.

To put it in CompSci terms: The judicative (courts) only did a sanity check on the input, whereas the legislative (parliament) took measures to actually clean up the input. So the former only prevented bad input from producing bad output, which caused the former to make sure that that brand of bad input is not possible at all anymore.

You could say that in these cases, the courts can only negate or affirm, but not ask a new question. They might state their opinion that a new question should be asked, but can't ask it themselves.

Re:Slouching toward Fascism

[CanHasDIY]

1 out ever every 32 Americans is in prison.

Clarification: in prison, on parole, or on probation.

Re:Head's hurting

[Rene S. Hollan]

Odd, I once commented, with some indignation, that I was annoyed that a police cruiser was parked in a supermarket lot, with no one inside, and the engine running. I think I said, (of the non-present cop), "What an idiot! Leaving the car running like that!". It was an opinion.

Well, said "idiot" appeared, and asked me if there was a problem. I responded (politely) that I found it annoying that one would leave a car, with its engine running, like that. He informed me "It's the law". I didn't know if such police protocol was actually dictated by statute or not, so chose not to disagree. I STILL think it is idiocy, whether required by statute, or not. Officer "idiot" was in the way of my path, so I asked him, "Am I under arrest?" He replied, "No." I then asked "Am I free to go?" I was THEN told "No," and detained in the back of the running crusier while he conferred with his partner to determine if I should be arrested. I was warned that "next time", I'd be arrested for "disorderly conduct", and released.

So, now expressing an opinion in public is "disorderly conduct". I was not in "anyone's face", blocking anyone's path, or following anyone to express my opinion to them: I looked, spoke my mind, and kept on my way.