Federal Jury Says Cops Can't Arrest People for Recording Police Encounters
Jacob Sullum | January 30, 2012
Last week a federal jury in Oregon awarded damages to an environmental activist who sued the city of Eugene after a police officer seized his video camera and arrested him for wiretapping. In March 2009, Josh Schlossberg was distributing leaflets outside Umpqua Bank in downtown Eugene when Sgt. Bill Solesbee told him to move along. Schlossberg replied that his lawyer had advised him he was not breaking any laws. Solesbee then entered the bank and came back out. When he approached Schlossberg again, Schlossberg took out his camera and announced that he was recording the encounter. The Oregonian describes what happened next:
Solesbee told Schlossberg he needed a permit to set up a table in front of the bank and accused him of blocking pedestrian traffic. Then he asked, "Are you taping me?"
As the two men argued over whether Schlossberg had notified him he was shooting video, the sergeant pointed at the camera and said, "Gimme that. That's evidence."
Schlossberg's lawyer [Lauren Regan] said the sergeant then charged the activist, roughly grabbed for his camera and wrenched his arm behind his back. Schlossberg was thrown to the ground, where his head struck the pavement, and felt the sergeant's knee on his neck, Regan said.
Solesbee seized Schlossberg's camera and arrested him. He was jailed for five hours on charges of resisting arrest and intercepting communications. Prosecutors later dismissed the charges.
As Simon Glik did after he was arrested for recording an arrest in Boston, Schlossberg complained to the police department, which said Solesbee had not done anything unconstitutional or contrary to policy. Like Glik, Schlossberg filed a federal lawsuit to vindicate his constitutional rights when the police department was unresponsive. In a pretrial hearing U.S. Magistrate Judge Thomas Coffin ruled that Solesbee had violated the Fourth Amendment by examining the contents of Schlossberg's camera without a warrant. As a result of last week's verdict, in which an eight-person jury concluded that Solesbee arrested Schlossberg without probable cause and used excessive force, the city is supposed to pay Schlossberg $4,083 for injuries, $1,500 for pain and suffering, and $200,000 for legal fees.
Regarding the verdict's broader significance, Regan tells The Oregonian, "Across the country right now, legal scholars and lawyers are just eating it up, because it's actually a solid statement of the right to privacy in the age of technology." The outcome also reaffirms that photography is not a crime. In both the Glik and Schlossberg cases, courts found that trumped-up wiretapping charges against people recording public events are unconstitutional. Eugene Police Chief Pete Kerns says the department has changed its policy in light of court rulings since 2009 and now discourages such arrests.
Radley Balko covered "The War on Cameras" in the January 2011 issue of Reason. Reason.tv on the same theme:
Who will watch the watchers? In a world of ubiquitous, hand-held digital cameras, that's not an abstract philosophical question. Police everywhere are cracking down on citizens using cameras to capture breaking news and law enforcement in action.
In 2009, police arrested blogger and freelance photographer Antonio Musumeci on the steps of a New York federal courthouse. His alleged crime? Unauthorized photography on federal property.
Police cuffed and arrested Musumeci, ultimately issuing him a citation. With the help of the New York Civil Liberties Union, he forced a settlement in which the federal government agreed to issue a memo acknowledging that it is totally legal to film or photograph on federal property.
Although the legal right to film on federal property now seems to be firmly established, many other questions about public photography still remain and place journalists and citizens in harm's way. Can you record a police encounter? Can you film on city or state property? What are a photographer's rights in so-called public spaces?
These questions will remain unanswered until a case reaches the Supreme Court, says UCLA Law Professor Eugene Volokh, founder of the popular law blog The Volokh Conspiracy. Until then, it's up to people to know their rights and test the limits of free speech, even at the risk of harassment and arrest.
Who will watch the watchers? All of us, it turns out, but only if we're willing to fight for our rights.
Produced by Hawk Jensen and Zach Weissmueller. Camera by Jim Epstein and Jensen. About 7.30 minutes.
Go to http://reason.com/blog/2011/05/26/reasontv-the-governments-war for links and more articles, including Reason magazine's January 2011 cover story, "The War on Cameras" and the companion piece "How to Record the Cops."
Go to http://reason.tv for downloadable versions of the video and subscribe to Reason.tv's YouTube channel to receive automatic notification when new material goes live.
How to Stop a Police Search (Texas Style)
Submitted by Steve Silverman
We just added this gem to our growing Success Stories page...
I recently got pulled over by the Texas Highway Patrol for an expired registration.
The cops double-teamed me -- one at the passenger-side window and one at the driver's side window, both talking to me at the same time, trying to confuse me. Each took turns sticking their heads as far as they could inside the car, looking around, and inhaling deeply.
After about five minutes of continuous sniffing, I finally asked one of the officers if everything was okay. "Just making sure you don't have any weapons. It's a safety thing. You mind if we take a look around?"
Of course, I knew the response. "I know you're just doing your job, but I don't consent to any searches."
About ten minutes into the encounter, one of the cops excitedly pointed at my cup holder. "Sir! What's that white residue on your cup holder? I need to be sure that's not something dangerous!"
I explained that the white residue was dust -- dead skins cells and detritus that you normally see in a dirty-ass car like mine.
Anyway, I kept cool, asserted my rights in a calm manner, didn't consent, and drove away without being searched. Not that I had anything to hide, but it felt good to assert my rights. Thanks for helping me do that.
-- Paul from Texas
Case Study in How to Assert Your Rights to Police