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Photographing Police: Deletion Is Not Forever

Posted by Soulskill on from the evidence-of-evidence dept.

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?"

8 of 482 comments (clear)

  1. Two separate things here by Anonymous Coward · · Score: 5, Informative

    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. :-/

    1. Re:Two separate things here by Old+time+hacker · · Score: 5, Informative

      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.

    2. Re:Two separate things here by kulervo · · Score: 5, Informative

      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

  2. Learn your Katrina history by Bayoudegradeable · · Score: 5, Informative

    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)

    --
    Sig Registration Form 34c_766(a) submitted to Ministry of Signature Management. Approval pending.
  3. Re:Privelege by Anonymous Coward · · Score: 5, Informative

    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 :)

  4. Re:Slouching toward Fascism by royallthefourth · · Score: 5, Informative

    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.

  5. Re:Head's hurting by spire3661 · · Score: 5, Informative

    Thats why you ask.

    1. Am i being arrested?

    2. Am i free to go?

    --
    Good-bye
  6. Re: Judges ruling by Jappus · · Score: 5, Informative

    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.