Arrest for recording police seems wrong
Published: Wednesday, March 14, 2012 at 1:00 a.m.
It started as a routine traffic stop in North Port. It ended with the harassment and arrest of a bystander whose only "crime" was to record the police activity on his cellphone.
For refusing to stop recording, he was handcuffed, thrown in jail and accused of breaking a felony law designed to prevent illegal wiretapping. This is hardly good police work.
To those who admire civil disobedience, computer technician Steve Horrigan, 57, may be a new hero. He knew his rights, and he stood his ground when those rights were challenged. Now, if the charges stick, we'll have a court ruling to see whose side wins.
The smart money is on Horrigan. He was on a public street with other bystanders. All he did was record the sights and sounds that anyone could have experienced if they were there on the evening of Jan. 25.
In a free society, Horrigan's actions were not a crime.
None of us can expect total privacy when we're in public. That's what "in public" means. Someone can take pictures of us or record our movements at any time. There's nothing we can do about it, unless it reaches the point of stalking. The same goes for the police.
Now that cell phone innovations have placed de facto video cameras in the hands of more people more of the time, we've seen an increase in the recording of law enforcement action, from the mundane to the spectacular.
Admittedly, this injects a new element into what are often tense situations, but it does not interfere with police business any more than filming a basketball game interferes with a player's foul shot.
Surely the North Port Police Department does not intend to start arresting everyone who records their activities at a crime scene. It would create a whole new class of criminals, "cam artists" to go with scam artists, if you will.
It seems a little training might help officers ignore the cameras and go about their business of arresting the real criminals. Citizen videos could even help exonerate police officers falsely accused of manipulating scenes or using undue force.
Unfortunately, speaking of training, that could be what led to the North Port incident. Apparently the police department has been relying on a January 2010 legal bulletin issued by the general counsel of the Palm Beach County Sheriff's Office for guidance.
In an email to Herald-Tribune reporter Billy Cox, Capt. Robert Estrada said, "The attachment is a legal guideline that our officers have read and discussed during roll call."
In dealing with third-party videotaping, portions of the bulletin seem to support an interpretation with which most of us would agree. For instance, "to claim a statutory violation there must be a reasonable expectation that the conversation is private. A police-citizen contact that occurs on a public street, loud enough for a bystander to hear away from the action, will not support such a claim," it says.
That makes sense. But the bulletin also emphasizes, "It is the audio portion of the videotaping that constitutes a felony." Not surprisingly, North Port police are hanging their charges on the audiotape element.
And, under the title of "Lessons Learned," the bulletin advises a camera-shy officer how to set up the felony charge: "Directly and clearly communicate that the individual does not have your consent to record your oral communications (thereby asserting your privacy rights), and give the individual the opportunity to stop recording."
That's nonsense, says Mickey Osterreicher, general counsel for the National Press Photographers Association. "In public you may not, by a mere statement, create a privacy right," he says. "There is no reasonable expectation of privacy for a police officer performing his public duty in a public place and no statement can create that right."
Common sense, common law and the First Amendment seem to fall on Horrigan's side. That didn't stop him from spending a night in jail before a judge released him.
No matter how the case plays out, his arrest doesn't feel right, and that's usually a good indication of its merits. It may be Horrigan this time, but if we don't speak out on his behalf, it could be any of us the next time around.
Eric Ernst's column runs Wednesdays, Fridays and Sundays. Contact him at firstname.lastname@example.org or (941) 486-3073.
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