Use Your Power Wisely

[Bob Hubbard]

Use Your Power Wisely

Just because you can arrest someone, doesn’t mean you should

http://www.lawofficer.com/article/training/use-your-power-wisely

Today, I woke up in a pleasant mood. Then my Crackberry exploded. That’s typical, but today one of my many spies sent me an article about cops arresting people for videotaping them while on duty and in public. This particular spy didn’t think the cops should arrest for that. He was exactly right.


I could write volumes on why this is one of the stupidest things I’ve ever heard, but I’ll just touch on the high points. We’re public servants entrusted with awesome power. We have the power to use force, even lethal force. We have the power to take away freedom. We’re allowed to kick down doors in the middle of the night and rush into people’s homes with machine guns. Maybe you non-thinkers don’t realize that all of these things, although necessary when used correctly, are also the things we’ve fought to defend against in every war we’ve ever fought. Don’t think so? Go study some history. You’ll find we were either protecting ourselves or someone else from the very things that police are allowed and expected to do when crooks cross the lines drawn by our society.


When we swear to uphold the Constitution, it’s the whole thing, not just the parts we like. Any cop who whines about the Bill of Rights standing in the way of making arrests should have their door kicked in by masked officers in the middle of the night. How would they like to get beaten until they confess to something? Or jailed without a fair trial? That’s right boys and girls, Ol’ Bullethead just hit a bunch of them—4th, 5th, 6th, 8th and the 14th amendments for good measure. My point: We must operate from within these laws. When we do, why wouldn’t we want it on video?

 

[sgtmac_46]

I agree completely. I don't mind one bit if someone wants to stand, at DISTANCE, and video tape an arrest. I'm probably videotaping it myself.

Where some folks cross the line, however, is that they WANT you to know they are videotaping you, and attempt to use it to interfer with the arrest, and that is not proper.

Stand at distance, observe, report. Interference is a crime.

I'm one of those officers, though, that if someone had a video camera out i'd walk up and talk to them. What i'd say would probably be off putting.

'Nice camera'

'I know my rights, it's legal for me to record'

'Sure......I don't care what you record.'

'You don't?'

'Nope......but I do need your name, address and phone number, because you're now a witness, and you'll be getting subpeonaed to court, so you'll also need to keep your video tape preserved, because we'll be subpeoning a copy of it..........but I do appreciate you keeping a video log of the incident for me'

 

[Sukerkin]

I actually think that is fair enough, Mac :tup:.

You know that I am not fond of police forces taking too much power unto themselves and trying to restrict public knowledge of excesses of zeal but I reckon you are right on the money with that approach. If a citizen is concerned enough with the maintenance of proper behaviour of their police that they will video them going about their duties then they should be concerned enough to follow that through up to and including appearing in court as a witness.

I don't presume to know that there would be downsides to that in terms of how they get treated by their police in future but I suspect that there would be, which is a shame. I don't have an answer to that side of things, sadly, as people will be people, whatever clothes they wear to work .

 

[sgtmac_46]

I actually think that is fair enough, Mac :tup:.

You know that I am not fond of police forces taking too much power unto themselves and trying to restrict public knowledge of excesses of zeal but I reckon you are right on the money with that approach. If a citizen is concerned enough with the maintenance of proper behaviour of their police that they will video them going about their duties then they should be concerned enough to follow that through up to and including appearing in court as a witness.

I don't presume to know that there would be downsides to that in terms of how they get treated by their police in future but I suspect that there would be, which is a shame. I don't have an answer to that side of things, sadly, as people will be people, whatever clothes they wear to work .

The way I see it is that we, as police, need to always keep in mind that we are policing a free society, and that we govern by consent of the governed.

That means dealing with some very annoying actions and complaints by the public, but if we remember our primary duty is to uphold and defend the Constitution in performance of upholding the law and maintaining peace we can keep the proper perspective to avoid some of these situations.

I also separate, in my mind, those who have issues with police and police powers from a principled perspective, and those who are simply criminals and criminal associates seeking to thwart lawful police actions. The former can sometimes be turned in to allies by dealing with them with respect. The later simply needs to be dealt with both intelligently and assertively.

 

[Balrog]

I agree completely. I don't mind one bit if someone wants to stand, at DISTANCE, and video tape an arrest. I'm probably videotaping it myself.

Where some folks cross the line, however, is that they WANT you to know they are videotaping you, and attempt to use it to interfer with the arrest, and that is not proper.

Stand at distance, observe, report. Interference is a crime.

I'm one of those officers, though, that if someone had a video camera out i'd walk up and talk to them. What i'd say would probably be off putting.

I LOVE IT!

The statement about the subpoena is perfect!

 

[Carol]

Where some folks cross the line, however, is that they WANT you to know they are videotaping you, and attempt to use it to interfer with the arrest, and that is not proper.

But in an all-party consent state, such as NH or MA, that's exactly the point. All parties to the conversation must know that they are being recorded.

Naturally, directly interfering with the arrest has nothing to do with party consent, not trying to go there.

 

[Hudson69]

I agree with SgtMac; I dont care that anyone records me as long as they are not trying to walk through a crime scene or get in the way of Officers doing their jobs; just because you are recording doesn't mean you have the right of way.

At the same time I have taken information down from someone who has video taped the incident and told them much the same thing about they are now witnesses and what they have is evidence. The few times this has come up I have asked them if they would like me to place their recording into evidence and tell them they would get it back after the trial is adjudicated completely (and any linked cases) or if they would be able to make a copy? I do tell them, after reviewing their recording (when they let me), that it cannot be altered in any way and to do so is as much a crime as interferring with Police in the course of their duties.

This hasn't happened (to me) enough to really even be an issue. I have never arrested anyone for video taping while I was working. I have made arrests when some j@ck-@$$ is just in my face or another Officer's when we are taking his friend/girlfriend/relative/other off to jail; that is a safety issue and I always give warnings for this and have even pulled someone off to the side to explain what is happening to their person of concern and that they cannot crowd us when we are working; this usually works other times (again, very few) it requires a little OC and a free ticket to see the judge.

In Colorado it seems to be a rare occurrence but it happens.

 

[sgtmac_46]

But in an all-party consent state, such as NH or MA, that's exactly the point. All parties to the conversation must know that they are being recorded.

Naturally, directly interfering with the arrest has nothing to do with party consent, not trying to go there.

That 'consent' issue only effects private conversations.

In a situation that is public, there is no requirement for consent........unless the news media gets a consent release from every individual in any football game, baseball game, or public incident that occurs in NH or MA.....

 

[sgtmac_46]

I agree with SgtMac; I dont care that anyone records me as long as they are not trying to walk through a crime scene or get in the way of Officers doing their jobs; just because you are recording doesn't mean you have the right of way.

At the same time I have taken information down from someone who has video taped the incident and told them much the same thing about they are now witnesses and what they have is evidence. The few times this has come up I have asked them if they would like me to place their recording into evidence and tell them they would get it back after the trial is adjudicated completely (and any linked cases) or if they would be able to make a copy? I do tell them, after reviewing their recording (when they let me), that it cannot be altered in any way and to do so is as much a crime as interferring with Police in the course of their duties.

This hasn't happened (to me) enough to really even be an issue. I have never arrested anyone for video taping while I was working. I have made arrests when some j@ck-@$$ is just in my face or another Officer's when we are taking his friend/girlfriend/relative/other off to jail; that is a safety issue and I always give warnings for this and have even pulled someone off to the side to explain what is happening to their person of concern and that they cannot crowd us when we are working; this usually works other times (again, very few) it requires a little OC and a free ticket to see the judge.

In Colorado it seems to be a rare occurrence but it happens.

Yep! You want to standby and be a recording witness with evidence? Fine! Have it your way......now you're part of the case.

 

[Archangel M]

"No, you are not under arrest...but that phone is now evidence. Heres your receipt, you can get it back when the case is concluded."

 

[Carol]

That 'consent' issue only effects private conversations.

In a situation that is public, there is no requirement for consent........unless the news media gets a consent release from every individual in any football game, baseball game, or public incident that occurs in NH or MA.....

Remember the legal definition of consent is not that the person gives permission to be recorded, it is simply that they be made aware that they are being recorded. Consent need not be written, ie "911, this call is recorded." or "Hey, can we get you on tape saying that?"

Here is a Boston Globe article that has addressed some of the issues:

http://www.boston.com/news/local/ma.../12/police_fight_cellphone_recordings/?page=1

Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three police officers struggling to extract a plastic bag from a teenager’s mouth. Thinking their force seemed excessive for a drug arrest, Glik pulled out his cellphone and began recording.

Within minutes, Glik said, he was in handcuffs.


“One of the officers asked me whether my phone had audio recording capabilities,’’ Glik, 33, said recently of the incident, which took place in October 2007. Glik acknowledged that it did, and then, he said, “my phone was seized, and I was arrested.’’



The charge? Illegal electronic surveillance.

The charges were later dropped, but Glik should not have been arrested to begin with. Glik did not need the officers' permission for the recording, he only needed the officers to be aware of the recording.




People in public events that speak in front of cameras or in to a professional microphone generally know they are being recorded, and are generally told in advance. There have been some famous gaffs ("We begin bombing in 5 minutes"), to be sure. But people that go to ballgames likely know that there's a chance a parabolic might catch a single voice yelling "Go Sox" or maybe something more colorful. I don't think anyone goes to games believing that Fox Sports New England is recording every single word you're saying to the person next to you for the entire time. This is also the reason why security cameras generally do not capture audio.

From the same article, the Mass. Supreme Judicial Court upheld, 4-2, the conviction of who citizen was clandestinely recording a police encounter in 1998.

Michael Hyde, a 31-year-old musician, began secretly recording police after he was stopped in Abington in late 1998 and the encounter turned testy. He then used the recording as the basis for a harassment complaint. The police, in turn, charged Hyde with illegal wiretapping. Focusing on the secret nature of the recording, the SJC upheld the conviction in 2001.

Here's the writeup of Commonwealth v. Hyde, 750 N.E.2d 963 on CaseLaw

http://caselaw.findlaw.com/ma-supreme-judicial-court/1330122.html


Which goes back to my statement that it is exactly the point. All parties to the conversation must know they are being recorded.

 

[Cryozombie]

"No, you are not under arrest...but that phone is now evidence. Heres your receipt, you can get it back when the case is concluded."

That's exactly the kind of blatant ******** the Article the OP posted rallied against... Jack Booted thugs STEALING private property because they have sand in their vagina over the fact they might be held accountable for their behavior.

It's not "Evidence" of Jack or **** unless I actually recorded the crime, AND if you are gonna subpoena me in just to be an *** because I taped you and don't actually need me, you can damn well bet I'm gonna do/say everything in my power to **** your case and help the other guy.

And you are gonna go just that much further into driving a wedge between the cops and public opinion. And like it or not the People fund your departments, and can easily vote for people that will give their tax dollars to schools instead of the PD.

Enjoy.

 

[Archangel M]

If you record me fighting with someone that damn well is evidence of a crime because I will be charging resisting arrest. Of course you jump to the ******* cop who is trying to cover up wrongdoing. Well I can tell as many stories of ******* citizens who are sticking their cameras into perfectly legal and justified police actions and making distractions of themselves while INDEED recording something that could help prove my case.

 

[Archangel M]

And BTW STEALING means taking with intent to permanently deprive for personal gain. Deprive meaning:
(a) to withhold
it or cause it to be withheld from him permanently or for so extended a
period or under such circumstances that the major portion of its
economic value or benefit is lost to him, or (b) to dispose of the
property in such manner or under such circumstances as to render it
unlikely that an owner will recover such property.

If a bystander did indeed record something associated with a charge I am filing...thats evidence.

 

[Cryozombie]

Yeah yeah, keep justifying.

 

[jks9199]

Guys, you're coming from rather set viewpoints.

Let's agree that there is a middle ground, OK? I doubt Archangel is going to seize every camera he sees as possible evidence, and I'm sure that Cryo understands that there can be times when a person filming or taking pictures at a crime scene or during police actions can both be a distraction or capture evidence.

When any item is seized as possible evidence, it is a temporary seizure, and the item will be returned after trial -- or sooner if it's found not to be evidentiary in nature. I personally would probably simply record the photographer's name and ask them to voluntarily let me take the camera. I can seize it long enough to get a search warrant; I can easily articulate that digital images in a camera can easily be destroyed or erased. If no warrant is issued, I have to release it back to the owner.

 

[Carol]

That also means that until the trial happens, the subscriber doesn't have his phone, doesn't have his phone number, and is likely contractually obligated to still pay for said phone.

I can understand why an individual would be upset with that.

 

[jks9199]

That also means that until the trial happens, the subscriber doesn't have his phone, doesn't have his phone number, and is likely contractually obligated to still pay for said phone.

I can understand why an individual would be upset with that.

Actually, it depends. For example, if the video is saved on a memory card, then that card may be all that is necessary.

 

[Carol]

Actually, it depends. For example, if the video is saved on a memory card, then that card may be all that is necessary.

Ahhhh...now that makes much more sense.