The police fear of being recorded

There are a lot of ways police can legally screw people over.

It’s called civil asset forfeiture. You probably already have heard of something like this, where the police get to seize the car and house of some drug kingpin and stick the money in the department’s budget (that’s criminal forfeiture).

But then there’s this loophole where the police can seize anything they suspect has been used in a crime, even if it doesn’t belong to the criminal, and even if there hasn’t been a conviction.

Then if you, as the actual owner of the goods, try to challenge it, the burden of proof is on you to prove you didn’t know it was going to be used in a crime. That’s civil forfeiture.

For the police, there is no legal requirement to prove “beyond reasonable doubt” that, say, your TV set was once used by a ring of Dutch pedophiles to view kiddie porn. They can simply take it, without ever giving it back, even if they never formally charge anyone for a crime.

This is obviously bullshit. The police do not deserve this much power. Ever. The average citizens needs all the tools available at his disposal to fight this legal abuse. Unfortunately, police have the ability to take away at least one of those tools.

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 [Illinois, Massachusetts, and Maryland], it is now illegal to record any on-duty police officer.

Police are routinely convicted thanks to video evidence. They’re human. They make errors, stupid decisions, and can be just as criminal as anyone else. They are not special. To take away the ability to catch them when they royally fuck up poses a serious danger to society.

A recent arrest in Maryland is both typical and disturbing.

On March 5, 24-year-old Anthony John Graber III’s motorcycle was pulled over for speeding. He is currently facing criminal charges for a video he recorded on his helmet-mounted camera during the traffic stop.

The case is disturbing because:

1) Graber was not arrested immediately. Ten days after the encounter, he posted some of he material to YouTube, and it embarrassed Trooper J. D. Uhler. The trooper, who was in plainclothes and an unmarked car, jumped out waving a gun and screaming. Only later did Uhler identify himself as a police officer. When the YouTube video was discovered the police got a warrant against Graber, searched his parents’ house (where he presumably lives), seized equipment, and charged him with a violation of wiretapping law.

2) Baltimore criminal defense attorney Steven D. Silverman said he had never heard of the Maryland wiretap law being used in this manner. In other words, Maryland has joined the expanding trend of criminalizing the act of recording police abuse. Silverman surmises, “It’s more [about] ‘contempt of cop’ than the violation of the wiretapping law.”

3) Police spokesman Gregory M. Shipley is defending the pursuit of charges against Graber, denying that it is “some capricious retribution” and citing as justification the particularly egregious nature of Graber’s traffic offenses. Oddly, however, the offenses were not so egregious as to cause his arrest before the video appeared.

Take a look at the video. Graber was horribly speeding and acting entirely irresponsible on the road, but that’s all he was doing. He deserves a severe ticket and probably a temporary suspension of his license. Nothing more.

The cop, J.D. Uhler, ought to receive a reprimand for pulling his gun like an utter toolbag right after the charges are dismissed against Graber. I don’t foresee such justice.

But it isn’t all bad news.

Happily, even as the practice of arresting “shooters” expands, there are signs of effective backlash. At least one Pennsylvania jurisdiction has reaffirmed the right to video in public places. As part of a settlement with ACLU attorneys who represented an arrested “shooter,” the police in Spring City and East Vincent Township adopted a written policy allowing the recording of on-duty policemen.

As journalist Radley Balko declares, “State legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials.”

I hope these laws and interpretations of existing laws make their way to the Supreme Court. Scalia would probably make his usual political ruling in favor of police, but there’s hope enough justices would see just how wrong this all is.

Be sure to check out Photography is Not a Crime for more.

Harvey Pekar

Harvey Pekar was awesome. Now he is dead.

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