$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

[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

[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

[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

[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.

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/...

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.