$57,000 Payout For Woman Charged With Wiretapping After Filming Cops

mpicpp sends this news from Ars: 'A local New Hampshire police department agreed Thursday to pay a woman who was arrested and charged with wiretapping $57,000 to settle her civil rights lawsuit. The deal comes a week after a federal appeals court ruled that the public has a "First Amendment" right to film cops. The plaintiff in the case, Carla Gericke, was arrested on wiretapping allegations in 2010 for filming her friend being pulled over by the Weare Police Department during a late-night traffic stop. Although Gericke was never brought to trial, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights. The department, without admitting wrongdoing, settled Thursday in a move that the woman's attorney speculated would deter future police "retaliation." ... The First US Circuit Court of Appeals ruled (PDF) in Gericke's case last week that she was "exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area."

Comments

An interesting caveat

[dr_canak]

" settled Thursday in a move that the woman's attorney speculated would deter future police "retaliation." ... "

But then this:

"...that she was "exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area."

Seems to imply that if the police had ordered her to stop filming or leave the area, then she could have been arrested had she continued.

So really, doesn't this just mean that Police will now simply order people to stop filming or leave the area in order to end the filming?

Re:An interesting caveat

[sribe]

Seems to imply that if the police had ordered her to stop filming or leave the area, then she could have been arrested had she continued.

No, this is a court ruling, when the court does not look at speculative circumstances of theoretical cases not brought before it. So what it actually means is that the ruling simply has nothing at all to say about a circumstance where the police give such an order, because so such circumstance was part of this case.

Re:An interesting caveat

[jythie]

However, carving out that bit of scope was deliberate. Even though it was not part of the case they explicitly mentioned that it would not be covered, so implicitly they are indeed saying that if an officer had asked her to stop it would not be a 1st amendment violation.

Re:An interesting caveat

[lagomorpha2]

I've personally sat through a case where a bystander's filming was manipulated and only pieces of it brought to court. Without the full context, the film was a lie. That sent a good police officer to prison. The laws are far behind these double edged swords... whatever happened to "the full truth"?

If the bystander had the full tape then manipulating it is evidence tampering and laws already exist to deal with this.

Although I am not familiar with the particular case I'm skeptical that a 'good police officer' exists and if that officer had ever done the common police tactic of deleting inconvenient police car video recorder evidence then prison seems poetic justice.

Re:An interesting caveat

[CanEHdian]

Exactly. You see that more often that hints are being given about circumstances that would have lead to a different outcome. Even in copyright trolling cases. Just the phrase "(hint, hint!)" is missing. So for instance it wouldn't be "Denied because it is unclear if the subscriber is the perpetrator" it becomes instead "Denied because no secondary evidence was presented where -for instance being the only adult male in the household- it could be presumed that the subscriber is the only one likely to have been the perpetrator, which would be enough evidence to grant the subpoena". As I said, only the "(hint, hint)" is missing.

If the police orders you to "stop filming" even IF YOU HAVE A RIGHT TO DO SO, you are still not following their orders. This ALSO applies to flight attendants. It doesn't matter ONE LITTLE BIT if the order was proper, you ARE guilty of not following it.

The CURRENT "proper way" of doing this is to follow their orders and then file a complaint at the station about the infringement on your rights. And yes, you won't have your videotaped evidence. And yes, police will likely retaliate. And no, the officer won't be immediately fired with cause. You lose.

Re:An interesting caveat

[hawguy]

I've personally sat through a case where a bystander's filming was manipulated and only pieces of it brought to court. Without the full context, the film was a lie. That sent a good police officer to prison. The laws are far behind these double edged swords... whatever happened to "the full truth"?

It's too bad that the police don't have access to the same advanced technology that normal citizens use to make recordings.

There is no excuse for police not having body-cams and dash-cams that signs and dates all recordings and are unalterable by the officers. (and they should have enough recording space/battery life to stay on during an entire shift so you don't end up with a situation like "Oh gee, we shot someone by mistake, but none of us remembered to turn on our cameras)

Then when a citizen's camera shows the police in a bad light, the police can counter with their own camera footage.

Re:An interesting caveat

[Attila Dimedici]

Then the police officer's lawyer did a bad job of defending him. If exculpatory evidence existed on the original recording, the lawyer should have requested it. If that portion of the recording no longer existed, the lawyer should have objected to the evidence being admitted AND made sure to make the jury aware that significant sections were not being presented. There are ways to mount a defense against such manipulation.

Re:An interesting caveat

[Anonymous Coward]

So really, doesn't this just mean that Police will now simply order people to stop filming or leave the area in order to end the filming?

Nope. The second TFA explains thusly:

"Last month, the 1st Circuit Court of Appeals said citizens may videotape police officers performing their duties unless an officer orders them to disperse or stop recording for legitimate safety reasons . In its unanimous ruling, the court rejected arguments by Weare officers that they should be immune from liability, under a theory that allows government officials to make reasonable mistakes that do not violate clearly established constitutional rights or state laws."

So there has to be legitimate safety reason for the police officer to order someone to stop recording and disperse. Of course, that won't stop cops from coming up with a bullshit safety excuses to stop people from recording, but at least a person who's been arrested for recording can dispute that issue in a trial.

Re:An interesting caveat

[radiumsoup]

in order for a police order to be enforceable, it must be a lawful order. A cop cannot order you to stop filming them performing their public duties, because doing so has already been established to be an individual right. It's practically identical to how a police officer cannot order you to answer their questions while you are being detained. They can lie to you about it (whole other argument there), but you do not have to speak at all during questioning. The only exception I know of is identifying yourself when ordered - but if you fail to identify yourself in a jurisdiction that requires it, you don't get arrested for refusing to obey a lawful order - you're arrested for failing to identify, a specifically and highly limited exemption to the 5th Amendment. If a cop arrests you for filming after he tells you to stop, consider yourself lucky - you were just handed a decent payday.

Now, it's not OK to shove a camera in his face, mind you - stay 50 feet away if you can (unless you're the subject of the original police action and are filming for your own safety) so they can't claim that they felt threatened or that it was a matter of the blanket excuse of "officer safety". As long as a reasonable person in the same situation would not feel their safety was threatened by your filming, then you're good to go.

oh, and IANAL.

Re:An interesting caveat

[Antique Geekmeister]

So do bad ones, much more quickly in good police departments.

I do wonder what happened to this officer: https://www.youtube.com/watch?... It should be used by the police as a training video of exactly how to handle people carrying rifles openly.

               

Re:An interesting caveat

[Immerman]

The problem is that millenia of evidence strongly suggests that a non-negligible portion of the population *are* essentially doing whatever they can get away with, and far more effectively and to greater damage than any simple animal. The failures are petty criminals, and the more successful ones become CEOs, bankers, etc. - the modern nobility. (Not that some may not be honest, but a few good apples don't redeem the bunch)

As such anarchy can not meaningfully be a goal. "Fixing" human nature could be a goal (though I have serious doubts about the wisdom of such an endeavor), in which case well-ordered anarchy could be a natural outcome, but seeking anarchy without first addressing the problems which make it untenable is foolishness.

Re:An interesting caveat

[hduff]

If the police orders you to "stop filming" even IF YOU HAVE A RIGHT TO DO SO, you are still not following their orders. This ALSO applies to flight attendants. It doesn't matter ONE LITTLE BIT if the order was proper, you ARE guilty of not following it.

The CURRENT "proper way" of doing this is to follow their orders and then file a complaint at the station about the infringement on your rights. And yes, you won't have your videotaped evidence. And yes, police will likely retaliate. And no, the officer won't be immediately fired with cause. You lose.

It is not illegal to refuse to obey an order that violates the law ("Kill that innocent bystander by order of the police!"), especially one that violates your clearly established Constitutional rights ("Surrender your Constitutional rights or face arrest!").

Yes, you will be arrested and face retaliation, but you should prevail in court. If you don't want the hassle, obey the unlawful order.

That said, there's a time and place for everything.

Re: An interesting caveat

[OhPlz]

If your BAC was over the limit you were lucky not to kill anybody. Drunk driving pieces of shit like you belong in prison until you learn to behave more responsibly.

Having a couple drinks doesn't mean that someone is guaranteed to be drunk. Having a BAC over an arbitrarily set threshold also doesn't guarantee that someone is drunk. They're not drunk unless they're significantly impaired. The cop in question was doing the right thing if the driver showed no signs of impairment. The officer could have gone through the roadside sobriety test, but if there's nothing other than a slight odor, I doubt it was necessary. You're advocating zero tolerance jackbooted thuggery. Shame on you, coward.

Re:An interesting caveat

[triclipse]

You may not be a lawyer, but you are correct. From the ruling:

The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure -- for example, a command that bystanders disperse -- that would incidentally impact an individual's exercise of the First Amendment right to film. Such an order, even when directed at a person who is filming, may be appropriate for legitimate safety reasons. However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.

Nothing to see here, move along

[NoNonAlphaCharsHere]

"exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area."

So a simple "stop filming" or "go away" from the police, and THEN they can arrest you.

Re:Nothing to see here, move along

[ledow]

"But could you explain, officer, why you requested the woman to stop filming for apparently no reason, shortly before she alleges that you beat her?"

And I think the requirements are a bit higher than "asked you to", more along the lines of officially ordering you to, for a given purpose, because you're creating a nuisance or otherwise interfering.

It's not to say that they can't still stop you filming, but it all becomes a lot more suspicious when you use a police ability normally reserved for acts of horror or where you could tip a suicidal person over the edge to stop you filming what they claim is just a legitimate traffic stop.

Did it come out of their pockets?

[Type44Q]

Did it come out of the fucking pockets of the individuals responsible? Because if it didn't, it's definitely not going to send the needed message...

Re:Did it come out of their pockets?

[rockout]

Maybe not directly, but it's coming out of the pockets of the town, which employs the police. So if you're the mayor or councilman or whatever, and you want to make sure chunks of your budget aren't flying into the hands of people being harassed by the police, you're damn sure going to tell the chief to tell his cops he's not arresting people anymore for filming cops. I have a feeling they'll get the message.

Re:right...

[rockout]

There's more responsibility than that placed upon the police, which you would've seen if you'd done a 5-second search instead of just read a shitty slashdot summary:

"However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties."

You can read even more (imagine that! read to educate yourself!) here: http://www.washingtonpost.com/...

This needs to happen more often

[Applehu Akbar]

With awards coming directly out of the police budget for that year - no fobbing off the penalty on the taxpayers.

Re:This needs to happen more often

[characterZer0]

It is the taxpayers' money to begin with.

Where do you think the shortfall is going to come from? Either reduced services to taxpayers or higher fees (e.g. speed traps, bogus parking tickets, etc.).

No

[Anonymous Coward]

No. Just No. Good judges are precise. He was very specific about the circumstances for the ruling. He did not "carve out an exception" at all. He was specifying in discreet detail his ruling, so that the context was extremely clear. He was specifically not ruling on a case where the cops ordered someone to depart or stop filiming, so that this case would not be misused as precedent.

Americans are Authoritarians

[bussdriver]

The society is way more authoritarian than it was generations ago. Not that it ever was likely in the center.... except maybe at the beginning.

See http://politicalcompass.org/ for yourself. Now it could be the "ideal" is not in the middle or is a bit authoritarian but that is a side issue, the point is that the culture is authoritarian which is why the public is goosestepping along.

Our schools are raising kids to love the boot of authority... or at least to be used to it. Schools are more like prisons in many ways and the traditional amount of anarchy and chaos in school is being beaten down; even in the art,music,gym classrooms and for some schools the playground is even being put into "order" (if not completely eliminating recess all together which has been done where I am for elementary kids... then we wonder why so many are being called ADD and given drugs to keep them in their seats... while still giving them tons of sugar and caffeine...)

Look at peaceable assembly. That right is almost dead. We just think "order" is more important than our rights and even "peace" has alternate meanings now... You can't peacefully protest if you make noise or fill up public space (while still allowing others to transit that space) because that isn't "peaceful" enough! You have to be invisible and THEN it is ok... completely ineffective and even then 1st chance they have they will find an excuse to invoke "order" and do anything they wish to terrorize the population into never wanting to join in a protest again. Vote every few years (if you are white and not a college student) and shut up and lick boots in between. Only lobbyists should be getting attention between elections. etc.

Keep in Mind

[Etherwalk]

Keep in mind that this was in the First Circuit. (Liberal circuit, includes Boston, case law there based on cops trying to stop someone from filming *on Boston Common*). If you try this in Alabama, Nevada, or LA you are more likely to get the shit kicked out of you by the cops and then for them to arrest you.

Re:Keep in Mind

[blackraven14250]

Good thing you'd be recording it then.

Filming the police is not bad

[laughingcoyote]

While switching trains, I once saw the police arresting someone at the train stop. They were becoming very aggressive and seemed about to become violent with the man they were arresting, despite the fact that he was not threatening them in any way.

I took out my cell phone and began filming. Very shortly after, one of the officers pointed at me and said something (not audible, he was too far away), but all of a sudden, their behavior became very professional, and the arrest proceeded without incident.

If I were in the same situation, I hope someone would do the same. There is no reason police should not be accountable for their behavior while performing their duties. After all, isn't it they who so often say "If there's nothing to hide, you've nothing to fear"? What would be wrong with a video of police officers doing their job properly? If anything, that would protect them if they were later accused of doing something wrong. The only ones with anything to fear from a video recording are those who intend on doing something wrong, and that's the exact time we need them being taped.