Obama Administration Supports Journalist Arrested For Recording Cops 238
New submitter SplatMan_DK writes "Ars Technica reports that the Obama Administration has filed a brief in support of a Maryland photojournalist who says he was arrested and beaten after he took photographs of the police arresting two other men. The brief by the Justice Department argues that the U.S. Constitution protects the right to photograph the actions of police officers in public places and prohibits police officers from arresting journalists for exercising those rights. Context: 'Garcia says that when Officer Christopher Malouf approached him, Garcia identified himself as a member of the press and held up his hands to show he was only holding a camera. But Malouf "placed Mr. Garcia in a choke hold and dragged him across the street to his police cruiser," where he "subjected him to verbal and physical abuse." According to Garcia's complaint, Malouf "forcibly dragged Mr. Garcia across the street, throwing him to the ground along the way, inflicting significant injuries." Garcia says Malouf "kicked his right foot out from under him, causing Mr. Garcia to hit his head on the police cruiser while falling to the ground." Garcia claims that Malouf took the video card from Garcia's camera and put it in his pocket. The card was never returned. Garcia was charged with disorderly conduct. In December 2011, a judge found Garcia not guilty.'"
It's better, it's not just "journalists" (Score:5, Interesting)
The brief explicitly says "the First Amendment right to record police officers performing public duties extends to both the public and members of the media, and the Court should not make a distinction between the publicâ(TM)s and the mediaâ(TM)s rights to record here".
This is all very strange. Hang on, is it Opposite Day?
Re:prohibits arresting just journalists? (Score:3, Interesting)
In Lovell v. City of Griffin, Chief Justice Hughes defined the press as, "every sort of publication which affords a vehicle of information and opinion."
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=303&invol=444 [findlaw.com]
Re:Google Glass (Score:4, Interesting)
That's one problem Google Glass will sort out - none of this `you can't film here` crap. I'll film wherever the hell I like, officer.
So your theory is that cops who are willing to beat you up and take your camera will be unwilling to beat you up and take your geek glasses?
Re:A sudden attack of reason (Score:3, Interesting)
Just as Gen. Hayden made the Bush administration position on the 4th amendment quite clear:
Gen. Michael Hayden refused to answer question about spying on political enemies at National Press Club. At a public appearance, Bush's point man in the Office of National Intelligence was asked if the NSA was wiretapping Bush's political enemies. When Hayden dodged the question, the questioner repeated, "No, I asked, are you targeting us and people who politically oppose the Bush government, the Bush administration? Not a fishing net, but are you targeting specifically political opponents of the Bush administration?" Hayden looked at the questioner, and after a silence called on a different questioner. (Hayden National Press Club remarks, 1/23/06)
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Landay: "...the Fourth Amendment of the United States Constitution specifies that you must have probable cause to violate an American's right against unreasonable searches and seizures..."
Gen. Hayden: "No, actually - the Fourth Amendment actually protects all of us against unreasonable search and seizure."
Landay: "But the --"
Gen. Hayden: "That's what it says."
Landay: "The legal measure is probable cause, it says."
Gen. Hayden: "The Amendment says: unreasonable search and seizure."
Landay: "But does it not say 'probable cause'?"
Gen. Hayden [exasperated, scowling]: "No! The Amendment says unreasonable search and seizure."
Landay: "The legal standard is probable cause, General -- "
Gen. Hayden [indignant]: "Just to be very clear ... mmkay... and believe me, if there's any Amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. Alright? And it is a reasonableness standard in the Fourth Amendment. The constitutional standard is 'reasonable'" ( h/t Dale)
-- Knight-Ridder's Jonathan Landay questioned Gen. Michael Hayden at the National Press Club in January.
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(4th Amendment for those who are confused...)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
" Statutes authorizing unreasonable searches were the core concern of the framers of the 4th Amendment."
"It is a measure of the framers' fear that a passing majority might find it expedient to compromise 4th Amendment values that these values were embodied in the Constitution itself."
--- Justice Sandra Day O'Conner, the first woman on the Supreme Court of the United States of America. 1981-2005 (resigned)
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Re:Enough is enough! (Score:4, Interesting)
Well, since the DOJ is involved, I'd make it a Federal Civil rights abuse case as well against the officers. The police in this nation have become more like paramilitary thugs in most places. Here's just a recent more pointed example. [huffingtonpost.com] They do have a difficult job to do and yes, there's nearly a 100% chance that every time they arrest somebody or go about conducting their business, they'll be recorded by a phone or some other device. They just need to get used to it and do their job and stop abusing the public!
Re:A sudden attack of reason (Score:4, Interesting)
I agree with a lot of what you say, but I do take issue with this:
If someone has declared them intentions and is clearly in collusion with a terrorist cell, then they have forfeited their rights as a citizen, and have declared themselves an enemy of the state.
I think in many situations, such as where someone is colluding with a terrorist cell but hasn't declared their intentions, that they deserve a trial. The problem is that the government is likely to claim that particular actions function as a declaration of intent. Here's a ridiculous but not entirely implausible situation:
Say an American pyromaniac moves to Pakistan. He doesn't align himself to any terrorist cause, he's just obsessed with blowing things up and his freedom in the U.S. could be jeopardized by such actions. He buys several explosives from a terrorist cell and this action is observed by a CIA spook who doesn't realize the guy is just a pyromaniac who intends to harmlessly detonate these devices in the middle of the desert. Our pyromaniac takes his explosives to his little desert shanty only to be blown away by a drone attack while he's setting up his new toys.
Let's say the guy's family finds out about it and they're outraged. They all know he was just a pyromaniac, they know he wasn't allied with terrorists. But the government is likely to claim that 1) his actions and associations with terrorists warranted treating him like a terrorist and 2) by buying items from terrorists he was in effect funding them, which makes him an enemy of the state.
The problem with allowing some government agency, agent, official, or whatever decide what constitutes a 'declaration of intent' or 'clear collusion' is that it could be abused. Say a hacker who, although he loves the U.S.A., is disgusted by the unconstitutional activities of certain agencies, decides to move to Iran. He moves to Iran so he can protest in the form of attacking the computer systems of these agencies and he's fairly certain the Iranians won't extradite him for such activity. While this is certainly a criminal act, does it make him a terrorist? Does it make him an enemy of the state?
Or one last hypothetical. Say Bradley Manning was informed that he was ratted out by the filthy rat Adrian Lamo before getting arrested. And somehow Bradley smuggled himself out of the country and was granted amnesty by. . .let's go with Syria. More than one politician has declared Manning to be an enemy of the state, to be guilty of treason, to be guilty of aiding and abetting the enemy. Are we to let the president send that drone after Manning? To leave it up to the president's discretion?
I think Rand Paul approached an important issue, and hopefully his stunt made people consider the moral repercussions of drones, the way our government deals with terrorism, the rights of the citizen, and warfare in general; but it appears to me that, like you said, Rand was just politicizing an issue and drawing attention to himself. Maybe his little filibuster will draw attention to the important issues but I doubt that was his intent - his intent was to spew FUD.
Re:A sudden attack of reason (Score:4, Interesting)
While it is true that an idiot with a camera can manipulate footage for his own gain http://articles.latimes.com/2013/mar/07/local/la-me-0308-acorn-20130308 [latimes.com] it's also true that lawyers know how to investigate criminal incidents and can often expose the manipulation. For example, a defense lawyer who deals with that stuff all the time said, the first thing you do is look at the whole unedited tape. If the Obama administration had done that with James O'Keefe's attack on ACORN, O'Keefe wouldn't have been able to get away with his lies. Under US law, BTW, if there is an investigation into a crime, a judge can subpoena the entire video. That applies even to journalists, as well as to fake journalists like O'Keefe, and to bystanders who record it on cellphones.
After an assault or a police confrontation, when different witnesses tell different stories, it's hard to reconstruct the facts. If you have a video of the incident, even part of the incident, that gives you some objective, reliable information to work with. Everybody knows that the video is just part of the story. The video doesn't testify by itself in court. Lawyers have to interview the photographer, consider the circumstances of the recording, and treat the video like any other piece of evidence. If you show a video of the cops beating up a suspect, the cops' lawyers have the right to give their version of what went on before that.
The more evidence you have, the more likely you are to figure out the truth.
When I look at the history of videos of police encounters in the last few years, I see a lot of incidents where the cops blatantly violated the law, committed assaults against innocent people, and committed perjury to cover it up. The videos at least got the false charges thrown out (although very seldom were the cops fired or prosecuted). Overall, the effect of videos has been good.
Everybody who dealt with the cops knew for years that this was going on. Videos are making it easier to prove it. Cities are going to get hit with $500,000 lawsuits like Manny Garcia is bringing. The experience has been that they just settle, don't punish the cops, and don't reform their practices. But maybe if they lose a few millions of dollars in lawsuits, and their taxpayers find their real estate taxes are doubling to pay for it, they'll start to pay attention.