Friday, June 4, 2010

Filming Police Abuse: A Crime or an Obligation?

Three states have made it illegal to film a police officer, and more appear to be starting to follow suit:
In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

The legal justification for arresting the "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.

While there are exceptions to the law, they are not being used in practice. Some of these may risk the public safety in various ways.

First, the denial of the ability to mount a defense by denying someone the ability to videotape their defense may well lead to the release of actual criminals who pose a threat to the public by simply creating the loophole. Constitutional rights trump people's desire not to be videotaped in a public place.

Second, given the times that abuse of people have been caught on videotape leading to the prosecution of police, and the deterrent for abuse that it creates, these "protections" for police officers may well give police officers greater license to use force. Especially given the presumption of innocence juries seem to carry for police, and the presumption of guilt juries seem to carry for the accused.

The idea that people cannot record and preserve evidence of a potential crime being committed in a public place ought to outrage both liberals wanting to protect civil liberties and conservatives wanting to protect freedoms of individuals against overbearing governments. The question is, why aren't these politicians living up to their core political beliefs?

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