Good advice from Reason Magazine:

Courts are expanding rights but cops are cracking down. Find out how to keep your footage, and yourself, out of trouble.

Steve Silverman | April 5, 2012

Last week the City of Boston agreed to pay Simon Glik $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his 2007 felony arrest for videotaping police roughing up a suspect. Prior to the settlement, the First Circuit Court of Appeals unanimously ruled that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The Boston Police Department now explicitly instructs its officers not to arrest citizens openly recording them in public.

Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you’re an aspiring cop watcher you must be uniquely prepared to deal with hostile cops.

If you choose to record the police you can reduce the risk of terrible legal consequences and video loss by understanding your state’s laws and carefully adhering to the following rules.

Rule #1: Know the Law (Wherever You Are)

Conceived at a time when pocket-sized recording devices were available only to James Bond types, most eavesdropping laws were originally intended to protect people against snoops, spies, and peeping Toms. Now with this technology in the hands of average citizens, police and prosecutors are abusing these outdated laws to punish citizens merely attempting to document on-duty police.

The law in 38 states plainly allows citizens to record police, as long as you don’t physically interfere with their work. Police might still unfairly harass you, detain you, or confiscate your camera. They might even arrest you for some catchall misdemeanor such as obstruction of justice or disorderly conduct. But you will not be charged for illegally recording police.

Twelve states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—require the consent of all parties for you to record a conversation.

However, all but 2 of these states—Massachusetts and Illinois—have an “expectation of privacy provision” to their all-party laws that courts have ruled does not apply to on-duty police (or anyone in public). In other words, it’s technically legal in those 48 states to openly record on-duty police.

 

Rule #2 Don’t Secretly Record Police

In most states it’s almost always illegal to record a conversation in which you’re not a party and don’t have consent to record. Massachusetts is the only state to uphold a conviction for recording on-duty police, but that conviction was for a secret recording where the defendant failed to inform police he was recording. (As in the Glik case, Massachusetts courts have ruled that openly recording police is legal, but secretly recording them isn’t.)

Fortunately, judges and juries are soundly rejecting these laws. Illinois, the state with the most notorious anti-recording laws in the land, expressly forbids you from recording on-duty police. Early last month an Illinois judge declared that law unconstitutional, ruling in favor of Chris Drew, a Chicago artist charged with felony eavesdropping for secretly recording his own arrest. Last August a jury acquitted Tiawanda Moore of secretly recording two Chicago Police Internal Affairs investigators who encouraged her to drop a sexual harassment complaint against another officer. (A juror described the case to a reporter as “a waste of time.”) In September, an Illinois state judge dropped felony charges against Michael Allison. After running afoul of local zoning ordinances, he faced up to 75 years in prison for secretly recording police and attempting to tape his own trial.

The lesson for you is this: If you want to limit your legal exposure and present a strong legal case, record police openly if possible. But if you videotape on-duty police from a distance, such an announcement might not be possible or appropriate unless police approach you.

Rule #3: Respond to “Shit Cops Say” 

When it comes to police encounters, you don’t get to choose whom you’re dealing with. You might get Officer Friendly, or you might get Officer Psycho. You’ll likely get officers between these extremes. But when you “watch the watchmen,” you must be ready to think on your feet.

In most circumstances, officers will not immediately bull rush you for filming them. But if they aren’t properly trained, they might feel like their authority is being challenged. And all too often police are simply ignorant of the law. Part of your task will be to convince them that you’re not a threat while also standing your ground.

“What are you doing?”

Police aren’t celebrities, so they’re not always used to being photographed in public. So even if you’re recording at a safe distance, they might approach and ask what you are doing. Avoid saying things like “I’m recording you to make sure you’re doing your job right” or “I don’t trust you.”

Instead, say something like “Officer, I’m not interfering. I’m asserting my First Amendment rights. You’re being documented and recorded offsite.”

Saying this while remaining calm and cool will likely put police on their best behavior. They might follow up by asking, “Who do you work for?” You may, for example, tell them you’re an independent filmmaker or a citizen journalist with a popular website/blog/YouTube show. Whatever you say, don’t lie—but don’t let police trick you into thinking that the First Amendment only applies to mainstream media journalists. It doesn’t.

“Let me see your ID.”

In the United States there’s no law requiring you to carry a government ID. But in 24 states police may require you to identify yourself if they have reasonable suspicion that you’re involved in criminal activity.

But how can you tell if an officer asking for ID has reasonable suspicion? Police need reasonable suspicion to detain you, so one way to tell if they have reasonable suspicion is to determine if you’re free to go. You can do this by saying “Officer, are you detaining me, or am I free to go?”

If the officer says you’re free to go or you’re not being detained, it’s your choice whether to stay or go. But if you’re detained, you might say something like, “I’m not required to show you ID, but my name is [your full name].” It’s up to you if you want to provide your address and date of birth if asked for it, but I’d stop short of giving them your Social Security number.

“Please stop recording me. It’s against the law.”

Rarely is it advisable to educate officers about the law. But in a tense recording situation where the law is clearly on your side, it might help your case to politely present your knowledge of state law.

For example, if an insecure cop tries to tell you that you’re violating his civil liberties, you might respond by saying “Officer, with all due respect, state law only requires permission from one party in a conversation. I don’t need your permission to record so long as I’m not interfering with your work.”

If you live in one of the 12 all party record states, you might say something like “Officer, I’m familiar with the law, but the courts have ruled that it doesn’t apply to recording on-duty police.”

If protective service officers harass you while filming on federal property, you may remind them of a recently issued directive informing them that there’s no prohibition against public photography at federal buildings.

“Stand back.”

If you’re approaching the scene of an investigation or an accident, police will likely order you to move back. Depending on the circumstances, you might become involved in an intense negotiation to determine the “appropriate” distance you need to stand back to avoid “interfering” with their work.

If you feel you’re already standing at a reasonable distance, you may say something like, “Officer, I have a right to be here. I’m filming for documentation purposes and not interfering with your work.” It’s then up to you to decide how far back you’re willing to stand to avoid arrest.

Rule #4: Don’t Share Your Video with Police
If you capture video of police misconduct or brutality, but otherwise avoid being identified yourself, you can anonymously upload it to YouTube. This seems to be the safest legal option. For example, a Massachusetts woman who videotaped a cop beating a motorist with a flashlight posted the video to the Internet. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her. (As usual, the charges against her were later dropped.)

On the other hand, an anonymous videographer uploaded footage of an NYPD officer body-slamming a man on a bicycle to YouTube. Although the videographer was never revealed, the video went viral. Consequently, the manufactured assault charges against the bicyclist were dropped, the officer was fired, and the bicyclist eventually sued the city and won a $65,000 settlement.

Rule #5: Prepare to be Arrested

Keene, New Hampshire resident Dave Ridley is the avatar of the new breed of journalist/activist/filmmaker testing the limits of the First Amendment right to record police. Over the past few years he’s uploaded the most impressive collection of first-person police encounter videos I’ve ever seen.

Ridley’s calm demeanor and knowledge of the law paid off last August after he was arrested for trespassing at an event featuring Vice President Joe Biden. The arresting officers at his trial claimed he refused to leave when ordered to do so. But the judge acquitted him when his confiscated video proved otherwise.

With respect to the law Ridley declares, “If you’re rolling the camera, be very open and upfront about it. And look at it as a potential act of civil disobedience for which you could go to jail.” It’s indeed disturbing that citizens who are not breaking the law should prepare to be arrested, but in the current legal fog this is sage advice.

“Shut it off, or I’ll arrest you.”

At this point you are risking arrest in order to test the boundaries of free speech. So if police say they’ll arrest you, believe them. You may comply by saying something like “Okay, Officer. But I’m turning the camera off under protest.”

If you keep recording, brace yourself for arrest. Try your best not to drop your camera, but do not physically resist. As with any arrest, you have the right to remain silent until you speak with a lawyer. Use it.

Remember that the camera might still be recording. So keep calm and act like you’re being judged by a jury of millions of your YouTube peers, because one day you might be.

Rule #6: Master Your Technology

Smartphone owners now outnumber users of more basic phones. At any moment there are more than 100 million Americans in reach of a device that can capture police misconduct and share it with the world in seconds.

If you’re one of them, you should consider installing a streaming video recording and sharing app such as Qik or Bambuser. Both apps are free and easy to use.

Always Passcode Protect Your Smartphone

The magic of both apps is that they can instantly store your video offsite. This is essential for preserving video in case police illegally destroy or confiscate your camera. But even with these apps installed, you’ll want to make sure that your device is always passcode protected. If a cop snatches your camera, this will make it extremely difficult for her to simply delete your videos. (If a cop tries to trick you into revealing your passcode, never, never, never give it up!)

Keep in mind that Qik and Bambuser’s offsite upload feature might be slow or nonexistent in places without Wi-Fi or a strong 3G/4G signal. Regardless, your captured video will be saved locally on your device until you’ve got a good enough signal to upload offsite.

Set Videos to “Private”

Both apps allow you to set your account to automatically upload videos as “private” (only you can see them) or “public” (everyone can see them). But until police are no longer free to raid the homes of citizens who capture and upload YouTube videos of them going berserk, it’s probably wise to keep your default setting to “private.”

With a little bit of practice you should be able to pull your smartphone from your pocket or purse, turn it on, enter your passcode, open the app, and hit record within 10 seconds. Keep your preferred app easily accessible on your home screen to save precious seconds. But don’t try to shave milliseconds off your time by disabling your passcode.

Both apps share an important feature that allows your video to be saved if your phone is turned off—even if you’re still recording. So if you anticipate that a cop is about to grab your phone, quickly turn it off. Without your passcode, police won’t be able to delete your videos or personal information even if they confiscate or destroy your phone.

With the iPhone 4 and Samsung Galaxy Android devices I tested, when the phone is turned off the Qik app immediately stops recording and uploads the video offsite. But if the phone is turned off while Bambuser records, the recording continues after the screen goes black.

This Bambuser “black out” feature is a double-edged sword. While it could easily trick cops into thinking you’re not recording them, using it could push you into more dangerous legal territory. As previously mentioned, courts have shown a willingness to convict citizens for secretly recording police. So if you’re somehow caught using this feature it might be easier for a prosecutor to convince a judge or jury that you’ve broken the law. It’s up to you to decide if the increased legal risk is worth the potential to capture incriminating police footage.

Other Recording Options

Cameras lacking offsite recording capability are a less desirable option. As mentioned earlier, if cops delete or destroy your footage—which happens way too often—you might lose your only hope of challenging their version of events in court. But if you can hold on to your camera, there are some good options.

Carlos Miller is a Miami-based photojournalism activist and writer of the popular Photography is Not a Crime blog. While he carries a professional-end Canon XA10 in the field, he says “I never leave home without a Flip camera on a belt pouch. It’s a very decent camera that’s easier to carry around.”

The top-of-the-line Flip UltraHD starts at $178, but earlier models are available for $60 on Amazon. All flip models have one-button recording, which allows you to pull it out of your pocket and shoot within seconds. The built-in USB then lets you upload video to YouTube or other sharing sites through your PC.

Small businessman and “radical technology” educator Justin Holmes recommends the Canon S-series line of cameras. In 2008, his camera captured a police encounter he had while rollerblading in Port Dickenson, New York. His footage provides an outstanding real-life example of how a calm camera-toting citizen can intelligently flex their rights.

“I typically carry a Canon S5-IS,” Holmes says. “But if I was going to buy one new, I’d go for the SX40-HS. If I were on a budget and buying one used, I’d go for S2-IS or S3-IS.” The features he regards as essential include one-touch video, high-quality stereo condenser microphones, fast zoom during video, and 180×270 variable angle LCD. But the last feature he regards as “absolutely essential.” With it the user can glance at the viewfinder while the camera is below or above eye level.

CONTINUE READING…

Watch the the following three videos to see how some police officers ply their trade. There was a time when the norm was the existence of “peace officers” who helped keep the peace. Now, the norm is “law enforcers” who seek to build their resumes with busts and generate revenue for their departments by enforcing any one of the numerous, victimless laws that are on the books.

How do you protect yourself?

Arm yourself and your friends with cameras and record every encounter. Know in advance how you are going to conduct yourself. After watching the videos below make sure to read the “Nine Things That Happen When You Film Police Encounters”:

Nine Things That Happen When You Film Police Encounters

by Austin White

Anyone who has ever filmed a police encounter and put it on YouTube has received some, or a lot, of negative comments for their actions. This is mostly due to a lack of understanding among the general public as to why someone would want to film police as they are detaining or arresting someone.

To explain, here are nine things that are achieved by filming police:

1. You’re exercising your right to film police.  You do have the right to film cops.  This right is codified in the Constitution under the First Amendment.  In the past year, New England’s highest Federal court ruled that filming cops is protected by the First Amendment.  You don’t need any special reason for doing so.  You don’t need permission from any bureaucrat.  You don’t have to work for a big media outlet.  Get a camera and a YouTube channel and you are officially media.  Congratulations and film away.  If you don’t exercise your rights, they atrophy.  Exercise them.

2. In the case where you are recording someone else’s police encounter, like a neighbor or friend, you are significantly reducing their chances of being the victim of police misconduct.  Police will be less likely to perform unwarranted searches, plant drugs, beat the person, rape the person, murder the person, or arrest them on trumped up charges if they know there are cameras around recording their every move.  You’re reducing the extent to which the predatory armed enforcers are likely to harass their prey.  Police-accountability activist Antonio Buehler was possibly facing years in prison for allegedly assaulting an officer until he later obtained video evidence from bystanders that refuted the claims of the cop.

3. In the case where you are recording your own police encounter, you could be saving yourself from a potentially life-destroying event.  You could be preventing yourself from going to prison.  Anyone who thinks they are not at risk of being arrested is quite oblivious to the number of “laws” on the books, as well as the vagueness of those laws and the ability of the state to interpret those laws however they want in order to put you in a cage.  Every American is now at a palpable risk of being arrested and jailed at some point — unless you’re a cop.

My friend Tj was pulled over by police a year and half ago over a malfunctioning tag light.  Immediately the gang of cops went into overkill mode and began ordering him out of the vehicle, were pulling on his door handle, and suspiciously claiming he dropped something out of the car window.  Eventually the police began threatening to pull TJ out of the vehicle and claiming that he might be a danger to the officers (cop language for “get out or we can kill you”) — all over a tag light.  You can see the video for yourself to see how Tj recording the encounter with his cell phone quickly deterred the cops from perpetrating further harassment.

4. You inspire others to stand up to cops and demand accountability.  Standing up to cops is scary.  They can quite literally kill you and get away with it, as well as everything below killing.  When you film cops and deter them from engaging in misconduct you become a beacon of peaceful resistance to the police-state for other people to emulate.

5. You remind the cops (allow me to put on my minarchist hat) that they are our servants and we are their masters.  We pay the police with our tax dollars to provide security and protect our rights.  We are the employers and the police are the employees.  We have every right to monitor our employees to make sure they’re doing their job right.  This is especially essential now that police have become routine rights violators and are far more likely to violate people’s rights than private criminals are.

The state watches us, reads our emails, listens in our phone conversations, and is putting more and more cameras around to surveil us in public places — is it really that unreasonable for us to watch the watchers a little bit, especially when they are actively looking for ways to put anyone they can into cages?

6. You are exercising the only real check we have on the police-state besides civil disobedience (which is becoming more appealing everyday) and armed rebellion.

Police investigate themselves and are the arbiters of disputes involving themselves.  How does the average person stand a chance against that?  Bad cops are very rarely found guilty for their crimes and when they are found guilty the punishment they often receive is a modicum of what the average American would receive.

In the fall of 2010, Orlando Copwatch did a lengthy investigation of an incident where OPD officer Travis Lamont body-slammed an 84-year-old man onto pavement and broke his neck — simply because the old man committed the heinous crime of touching Lamont’s shoulder.  Despite the fact that numerous witnesses called the police station in outrage and spoke to the media about the horrific behavior of Lamont, Orlando Police Chief Val Demings and six other senior officials cleared Lamont of any wrong doing and he lurks the streets of Orlando to this day.

The only effective method we have for dealing with bad cops is filming them in the act and putting it on YouTube so they can receive the shame and ostracism they deserve.  If someone had been able to capture footage of Officer Lamont’s actions that night and put in on YouTube for it to go viral Lamont may have ended up in prison where he truly belongs.

7. You are preparing cops to get used to being filmed.  Every year the price of cameras goes down, the quality goes up, the size of cameras goes down, the ability to conceal cameras increases,   we now have the ability to upload live footage to websites like Qik.com, and there is a growing movement of people happily willing to use these tools to keep police accountable.  There is nothing the cops can do about it.  The bureaucrats can write whatever laws they want to stop us, but the market will help us get around them.  When you get out there and start filming cops you’re giving police a friendly reminder that soon every cop’s every move will be monitored by the tax payers and that they better start acting more civilized.  You’re stimulating a feeling among police that they are being watched.

8. You’re standing up for your rights and your fellow citizen’s rights and will feel damn good about it.  You’ll be able to look back and know that you didn’t submit to the police-state like some slave.  The preservation of your dignity and spirit is worth the risks of filming cops.

9. You are reducing the amount of tyranny that your kids will live under.

Yes, filming police is dangerous, but day-to-day life in the totalitarian Amerika that will develop as a result of our apathy will be far more dangerous.  Now is the time to film cops; not later.  The police-state will only get more severe if we don’t act now, which means it will only get harder to keep police accountable if we back down.(source)