Forgot your password?
typodupeerror
The Courts

$57,000 Payout For Woman Charged With Wiretapping After Filming Cops 216

Posted by Soulskill
from the let-me-tell-you-what-a-wire-is dept.
mpicpp sends this news from Ars: 'A local New Hampshire police department agreed Thursday to pay a woman who was arrested and charged with wiretapping $57,000 to settle her civil rights lawsuit. The deal comes a week after a federal appeals court ruled that the public has a "First Amendment" right to film cops. The plaintiff in the case, Carla Gericke, was arrested on wiretapping allegations in 2010 for filming her friend being pulled over by the Weare Police Department during a late-night traffic stop. Although Gericke was never brought to trial, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights. The department, without admitting wrongdoing, settled Thursday in a move that the woman's attorney speculated would deter future police "retaliation." ... The First US Circuit Court of Appeals ruled (PDF) in Gericke's case last week that she was "exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area."
This discussion has been archived. No new comments can be posted.

$57,000 Payout For Woman Charged With Wiretapping After Filming Cops

Comments Filter:
  • by dr_canak (593415) on Saturday June 07, 2014 @09:36AM (#47185901)

    " settled Thursday in a move that the woman's attorney speculated would deter future police "retaliation." ... "

    But then this:

    "...that she was "exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area."

    Seems to imply that if the police had ordered her to stop filming or leave the area, then she could have been arrested had she continued.

    So really, doesn't this just mean that Police will now simply order people to stop filming or leave the area in order to end the filming?

    • by sribe (304414) on Saturday June 07, 2014 @09:43AM (#47185923)

      Seems to imply that if the police had ordered her to stop filming or leave the area, then she could have been arrested had she continued.

      No, this is a court ruling, when the court does not look at speculative circumstances of theoretical cases not brought before it. So what it actually means is that the ruling simply has nothing at all to say about a circumstance where the police give such an order, because so such circumstance was part of this case.

      • by jythie (914043) on Saturday June 07, 2014 @09:57AM (#47185961)
        However, carving out that bit of scope was deliberate. Even though it was not part of the case they explicitly mentioned that it would not be covered, so implicitly they are indeed saying that if an officer had asked her to stop it would not be a 1st amendment violation.
        • by CanEHdian (1098955) on Saturday June 07, 2014 @10:27AM (#47186065)

          Exactly. You see that more often that hints are being given about circumstances that would have lead to a different outcome. Even in copyright trolling cases. Just the phrase "(hint, hint!)" is missing. So for instance it wouldn't be "Denied because it is unclear if the subscriber is the perpetrator" it becomes instead "Denied because no secondary evidence was presented where -for instance being the only adult male in the household- it could be presumed that the subscriber is the only one likely to have been the perpetrator, which would be enough evidence to grant the subpoena". As I said, only the "(hint, hint)" is missing.

          If the police orders you to "stop filming" even IF YOU HAVE A RIGHT TO DO SO, you are still not following their orders. This ALSO applies to flight attendants. It doesn't matter ONE LITTLE BIT if the order was proper, you ARE guilty of not following it.

          The CURRENT "proper way" of doing this is to follow their orders and then file a complaint at the station about the infringement on your rights. And yes, you won't have your videotaped evidence. And yes, police will likely retaliate. And no, the officer won't be immediately fired with cause. You lose.

          • No (Score:3, Informative)

            by Anonymous Coward

            No. Just No. Good judges are precise. He was very specific about the circumstances for the ruling. He did not "carve out an exception" at all. He was specifying in discreet detail his ruling, so that the context was extremely clear. He was specifically not ruling on a case where the cops ordered someone to depart or stop filiming, so that this case would not be misused as precedent.

          • by radiumsoup (741987) on Saturday June 07, 2014 @11:58AM (#47186403)

            in order for a police order to be enforceable, it must be a lawful order. A cop cannot order you to stop filming them performing their public duties, because doing so has already been established to be an individual right. It's practically identical to how a police officer cannot order you to answer their questions while you are being detained. They can lie to you about it (whole other argument there), but you do not have to speak at all during questioning. The only exception I know of is identifying yourself when ordered - but if you fail to identify yourself in a jurisdiction that requires it, you don't get arrested for refusing to obey a lawful order - you're arrested for failing to identify, a specifically and highly limited exemption to the 5th Amendment. If a cop arrests you for filming after he tells you to stop, consider yourself lucky - you were just handed a decent payday.

            Now, it's not OK to shove a camera in his face, mind you - stay 50 feet away if you can (unless you're the subject of the original police action and are filming for your own safety) so they can't claim that they felt threatened or that it was a matter of the blanket excuse of "officer safety". As long as a reasonable person in the same situation would not feel their safety was threatened by your filming, then you're good to go.

            oh, and IANAL.

            • Keep in Mind (Score:4, Insightful)

              by Etherwalk (681268) on Saturday June 07, 2014 @12:49PM (#47186603)

              Keep in mind that this was in the First Circuit. (Liberal circuit, includes Boston, case law there based on cops trying to stop someone from filming *on Boston Common*). If you try this in Alabama, Nevada, or LA you are more likely to get the shit kicked out of you by the cops and then for them to arrest you.

            • by triclipse (702209) <<cc.walsbmoc> <ta> <todhsals>> on Saturday June 07, 2014 @04:36PM (#47187399) Homepage
              You may not be a lawyer, but you are correct. From the ruling:

              The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure -- for example, a command that bystanders disperse -- that would incidentally impact an individual's exercise of the First Amendment right to film. Such an order, even when directed at a person who is filming, may be appropriate for legitimate safety reasons. However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.

          • by hduff (570443) <hoytduff@NoSPAM.gmail.com> on Saturday June 07, 2014 @01:10PM (#47186673) Homepage Journal

            If the police orders you to "stop filming" even IF YOU HAVE A RIGHT TO DO SO, you are still not following their orders. This ALSO applies to flight attendants. It doesn't matter ONE LITTLE BIT if the order was proper, you ARE guilty of not following it.

            The CURRENT "proper way" of doing this is to follow their orders and then file a complaint at the station about the infringement on your rights. And yes, you won't have your videotaped evidence. And yes, police will likely retaliate. And no, the officer won't be immediately fired with cause. You lose.

            It is not illegal to refuse to obey an order that violates the law ("Kill that innocent bystander by order of the police!"), especially one that violates your clearly established Constitutional rights ("Surrender your Constitutional rights or face arrest!").

            Yes, you will be arrested and face retaliation, but you should prevail in court. If you don't want the hassle, obey the unlawful order.

            That said, there's a time and place for everything.

          • Is that the case? Over here in NL, you have the right to film the police, however you do not have the right to publish that material. You also do not have the right to interfere with police business, and you do have to follow orders related to public safety. And if your camera is actually inciting violent behaviour in others, the cops can rightfully order you to move on. It's not always a 100% clear cut case, and both the filmer and the police have to make judgment calls. And the police frequently make
          • by meerling (1487879)
            This has already come up in court in a couple of cases. The end result was that recording a public servant in public is legal, no matter what the cops say. Arresting you for it is illegal and unconstitutional. Doesn't mean they still won't try, and that if they do, you won't have years of heartache and harassment in court, but you are allowed to do it.

            As to leaving the area, that is dependent on where everything is occurring. Somebody coming up to the cops is probably going to lose. On the other hand, the
          • by jafiwam (310805)

            The proper way to do it is use a camera that is hidden, so the order to cease recording never occurs. They are getting very good and very inexpensive now. A person could carry three or four and not really be noticed.

            Though, it would be hard to argue that someone as a passenger in a vehicle pulled over had a choice about where and when they were when they filmed. The police after all, bring a car mounted camera, and sometimes a body mounted camera. THOSE recordings do not interfere with the traffic stop,

        • Except you've got a video tape of them up until that point and TFS mentions "for health and safety reasons"

          What if you are in the middle of a riot, videotaping, and the police tell the rioters (and you) to disperse? Do you get to sue the cops?

          The law tends to have caveats for a reason. If you look at the PDF, they talk about an officer at a traffic stop in a public place not having the right to expect privacy. The judgement she got is the best she could have hoped for, and the judge should be applauded.

    • The police will more than likely create a training scenario for their officers that goes something like this:

      "...then, inform the person with the recording device that he or she resembles a robbery suspect..."

      Unrelated Carnac Moment: Someone will post that Don't Talk to the Police link on this thread.

      • I've personally sat through a case where a bystander's filming was manipulated and only pieces of it brought to court. Without the full context, the film was a lie. That sent a good police officer to prison. The laws are far behind these double edged swords... whatever happened to "the full truth"?

        • by lagomorpha2 (1376475) on Saturday June 07, 2014 @10:02AM (#47185975)

          I've personally sat through a case where a bystander's filming was manipulated and only pieces of it brought to court. Without the full context, the film was a lie. That sent a good police officer to prison. The laws are far behind these double edged swords... whatever happened to "the full truth"?

          If the bystander had the full tape then manipulating it is evidence tampering and laws already exist to deal with this.

          Although I am not familiar with the particular case I'm skeptical that a 'good police officer' exists and if that officer had ever done the common police tactic of deleting inconvenient police car video recorder evidence then prison seems poetic justice.

          • by Type44Q (1233630)

            I'm skeptical that a 'good police officer' exists

            What the fuck are you smoking?? Good cops get railroaded out of departments all the time.

        • by hawguy (1600213) on Saturday June 07, 2014 @10:29AM (#47186077)

          I've personally sat through a case where a bystander's filming was manipulated and only pieces of it brought to court. Without the full context, the film was a lie. That sent a good police officer to prison. The laws are far behind these double edged swords... whatever happened to "the full truth"?

          It's too bad that the police don't have access to the same advanced technology that normal citizens use to make recordings.

          There is no excuse for police not having body-cams and dash-cams that signs and dates all recordings and are unalterable by the officers. (and they should have enough recording space/battery life to stay on during an entire shift so you don't end up with a situation like "Oh gee, we shot someone by mistake, but none of us remembered to turn on our cameras [sfgate.com])

          Then when a citizen's camera shows the police in a bad light, the police can counter with their own camera footage.

        • by Attila Dimedici (1036002) on Saturday June 07, 2014 @10:36AM (#47186107)
          Then the police officer's lawyer did a bad job of defending him. If exculpatory evidence existed on the original recording, the lawyer should have requested it. If that portion of the recording no longer existed, the lawyer should have objected to the evidence being admitted AND made sure to make the jury aware that significant sections were not being presented. There are ways to mount a defense against such manipulation.
        • That's odd because by normal procedures the bystander's entire video should have been made available to the police officer's defense attorney during discovery.

          So either he had a spectacularly bad defense attorney or else the entire film wouldn't improve the officers position.

          I advocate comprehensive, server uploaded filming by police officers while they are on duty. It's the best protection for the officers and the citizens.

        • by Immerman (2627577)

          So then why wasn't the cop recording the encounter? That covers a good cop's ass, and if you deny them the ability to *stop* recording, severely curtails the abuses of a bad cop, even if there are no conveniently civic-minded bystanders.

        • I've personally sat through a case where a bystander's filming was manipulated and only pieces of it brought to court. Without the full context, the film was a lie. That sent a good police officer to prison. The laws are far behind these double edged swords... whatever happened to "the full truth"?

          I'm also skeptical of your story without a source. Cops shoot innocent people and at worst get administrative leave, it's rare that dirty cops get sent to prison much less a "good police officer".

        • by richlv (778496)

          link to the case and video, please.

        • by Lehk228 (705449)
          the last good cop got chased into a cabin and burned alive
    • Re: (Score:3, Informative)

      by Anonymous Coward

      So really, doesn't this just mean that Police will now simply order people to stop filming or leave the area in order to end the filming?

      Nope. The second TFA explains thusly:

      "Last month, the 1st Circuit Court of Appeals said citizens may videotape police officers performing their duties unless an officer orders them to disperse or stop recording for legitimate safety reasons . In its unanimous ruling, the court rejected arguments by Weare officers that they should be immune from liability, under a theory t

  • by NoNonAlphaCharsHere (2201864) on Saturday June 07, 2014 @09:36AM (#47185903)

    "exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area."

    So a simple "stop filming" or "go away" from the police, and THEN they can arrest you.

    • by ledow (319597) on Saturday June 07, 2014 @09:39AM (#47185915) Homepage

      "But could you explain, officer, why you requested the woman to stop filming for apparently no reason, shortly before she alleges that you beat her?"

      And I think the requirements are a bit higher than "asked you to", more along the lines of officially ordering you to, for a given purpose, because you're creating a nuisance or otherwise interfering.

      It's not to say that they can't still stop you filming, but it all becomes a lot more suspicious when you use a police ability normally reserved for acts of horror or where you could tip a suicidal person over the edge to stop you filming what they claim is just a legitimate traffic stop.

    • by drinkypoo (153816)

      So a simple "stop filming" or "go away" from the police, and THEN they can arrest you.

      No, that's not what happened here. The cops aren't technically allowed to tell you to go away if you're not breaking any laws (although a lot of cities have unconstitutional loitering laws which prevent peaceable assembly, and although a lot of cops in fact don't give two shits about the law) and the judge is just avoiding giving people a free pass to break laws in order to film the cops.

  • "exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area."

    Now the cops will simply say "move along" before arresting you.
    • Re:right... (Score:5, Informative)

      by rockout (1039072) on Saturday June 07, 2014 @09:46AM (#47185929)

      There's more responsibility than that placed upon the police, which you would've seen if you'd done a 5-second search instead of just read a shitty slashdot summary:

      "However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties."

      You can read even more (imagine that! read to educate yourself!) here: http://www.washingtonpost.com/... [washingtonpost.com]

      • Unfortunately, "interfering" is subject to the individual officer's opinion, just like "resisting arrest" and a thousand other subjective offenses. In court, it's your word against his. Guess who the judge will side with?
        • Well, in this case, the judge sided with the citizen, right?

          Don't lose all hope in the justice system.

          Judiciary is a separate branch from the police.

          • Judiciary is a separate branch from the police.

            in theory, yes.

            in practice, NO!

            judges will trust the cops 99 times out of 100, over you.

            they are ALL bad and ALL crooked.

            we need justice 2.0 since 1.x is broken by design in this country.

  • by Type44Q (1233630) on Saturday June 07, 2014 @09:43AM (#47185925)

    Did it come out of the fucking pockets of the individuals responsible? Because if it didn't, it's definitely not going to send the needed message...

    • by rockout (1039072) on Saturday June 07, 2014 @09:48AM (#47185935)
      Maybe not directly, but it's coming out of the pockets of the town, which employs the police. So if you're the mayor or councilman or whatever, and you want to make sure chunks of your budget aren't flying into the hands of people being harassed by the police, you're damn sure going to tell the chief to tell his cops he's not arresting people anymore for filming cops. I have a feeling they'll get the message.
    • The people responsible should be brought to justice.
    • by dbc (135354)

      That requires a Section 1983 lawsuit, "Denial of civil rights under color of authority." Then you can pierce immunity and go after the personal assets of the goverment official. Getting a ruling like this one, where a federal court has stated quite clearly that people have a 1A right to film police is a key step. Now that it is clearly established that people have a 1A right to film, the *next* cop to get sued over this is wide open for a 1983.

  • If the government can claim that it's okay to record people in "public" (pun intended) without any concern for their privacy, so why is it not okay for this woman to record a cop? Such refusal to be video taped insinuates that something fishy was going on. If that cop didn't have anything to hide what's the problem with recording the incident.

    Last month, the 1st Circuit Court of Appeals said citizens may videotape police officers performing their duties unless an officer orders them to disperse or stop rec

    • by Type44Q (1233630)

      would the same immunity be granted to me (an unwashed, private citizen)

      Dunno but a shower would certainly eliminate part of that problem. ;)

    • by Solandri (704621)

      If the government can claim that it's okay to record people in "public" (pun intended) without any concern for their privacy, so why is it not okay for this woman to record a cop? Such refusal to be video taped insinuates that something fishy was going on. If that cop didn't have anything to hide what's the problem with recording the incident.

      While I completely agree that the public has the right to record the police doing their work, the police's motivation for not wanting to be recorded is not completely

  • by Applehu Akbar (2968043) on Saturday June 07, 2014 @09:59AM (#47185967)

    With awards coming directly out of the police budget for that year - no fobbing off the penalty on the taxpayers.

    • by characterZer0 (138196) on Saturday June 07, 2014 @10:16AM (#47186027)

      It is the taxpayers' money to begin with.

      Where do you think the shortfall is going to come from? Either reduced services to taxpayers or higher fees (e.g. speed traps, bogus parking tickets, etc.).

      • If police malpractice awards come out of the police budget rather than the city council appropriating additional money, they are much more likely to change police behavior.

        • by hduff (570443)

          If police malpractice awards come out of the police budget rather than the city council appropriating additional money, they are much more likely to change police behavior.

          "Mr. Mayor, we need additional funding to defend our valiant officers or we will be unable to hire enough officers to adequately ensure the public safety; our hands will be tied by you. Will you be the elected official who sacrificed public safety for a few dollars? I thought not." - Police Chief

      • by AmiMoJo (196126) *

        The officers involved should be made to pay restitution.

        • by hduff (570443)

          The officers involved should be made to pay restitution.

          Blood. Turnip. Do the math.

    • With awards coming directly out of the police budget for that year - no fobbing off the penalty on the taxpayers.

      And who do you think funds the taxpayer budgets?

      Under your scenario police departments will disband / lay off officers leaving an unprotected populace.

      IMHO a bigger stick needs to be used to stop these sorts of abuses, but you're smoking crack if you think large awards out of department budgets are the answer

      • In these videotaping cases, police departments spend money dragging citizens though the courts on junk charges. Damages coming out of their budget would force them to prioritize, going after real crime first.

  • by erroneus (253617) on Saturday June 07, 2014 @10:20AM (#47186045) Homepage

    While I agree there should definitely be some compensation to victims of government, I like to remind people that it's OUR MONEY! They get it from taxes we pay. Instead, we simply need other punitive measures. I am more inclined to fine the police actors directly. Having a fine placed on them would quickly resolve the problem and prevent MANY police from behaving badly. Additionally, in the event that there is police department cooperation and collaboration, actual criminal charges should be filed.

    I just don't believe government should have THAT much more power than the average person on the street and should only be as equally armed.

    • Agreed that police misconduct is criminal. However, we have only ourselves to blame. A Grand Jury could indict misbehaving police as easily as any ham sandwich. Smeone just needs to take a complaint to them (write the foreman), they will investigate (subpoenae) as they see fit. But they uniformly decline.

      Why is a good question -- I believe our population is very heavily propagandized. And not only by the obvious commercial interests. The local TV news focus on violence ("if it bleeds, it leads") cond

      • by bussdriver (620565) on Saturday June 07, 2014 @12:46PM (#47186593)

        The society is way more authoritarian than it was generations ago. Not that it ever was likely in the center.... except maybe at the beginning.

        See http://politicalcompass.org/ [politicalcompass.org] for yourself. Now it could be the "ideal" is not in the middle or is a bit authoritarian but that is a side issue, the point is that the culture is authoritarian which is why the public is goosestepping along.

        Our schools are raising kids to love the boot of authority... or at least to be used to it. Schools are more like prisons in many ways and the traditional amount of anarchy and chaos in school is being beaten down; even in the art,music,gym classrooms and for some schools the playground is even being put into "order" (if not completely eliminating recess all together which has been done where I am for elementary kids... then we wonder why so many are being called ADD and given drugs to keep them in their seats... while still giving them tons of sugar and caffeine...)

        Look at peaceable assembly. That right is almost dead. We just think "order" is more important than our rights and even "peace" has alternate meanings now... You can't peacefully protest if you make noise or fill up public space (while still allowing others to transit that space) because that isn't "peaceful" enough! You have to be invisible and THEN it is ok... completely ineffective and even then 1st chance they have they will find an excuse to invoke "order" and do anything they wish to terrorize the population into never wanting to join in a protest again. Vote every few years (if you are white and not a college student) and shut up and lick boots in between. Only lobbyists should be getting attention between elections. etc.

    • by drinkypoo (153816)

      Police are protected from that sort of thing, and with good reason. The problem is, there's no equal and opposite protection for the people. Every town should have a Citizen's Police Review Board, and it should be equipped with teeth — namely, the ability to fire cops.

      • Teeth is referring them to a grand jury after firing them with cause. Skipping the politically motivated DA's office.

    • by pubwvj (1045960)

      "I like to remind people that it's OUR MONEY!"

      Then tell YOUR police to stop abusing people. It's YOUR fault this happens.

      • by erroneus (253617)

        That's pure delision. There is a pretty obvious separation between police/government and 'the people.' Some ridiculously unpupolar laws are being written and passed without anyone noticing. Recently a law was passed which requires a private (no parents) discussion with every minor patient who visits a doctor. Scary sounding? What parent agreed to that law?

    • by skywire (469351)

      If you believe that money which has been taken from you by threat of violence somehow remains "your" money, you are pathetically delusional.

  • Organize some crowd-sourcing and buy one way tickets to North Korea for all police and government security forces.
    They will be happy there: censorship, live ammunition and full regime.
    Leave American people alone, "protect and serve" Kim Jong-Un instead.

  • by laughingcoyote (762272) <barghesthowl.excite@com> on Saturday June 07, 2014 @02:05PM (#47186899) Journal

    While switching trains, I once saw the police arresting someone at the train stop. They were becoming very aggressive and seemed about to become violent with the man they were arresting, despite the fact that he was not threatening them in any way.

    I took out my cell phone and began filming. Very shortly after, one of the officers pointed at me and said something (not audible, he was too far away), but all of a sudden, their behavior became very professional, and the arrest proceeded without incident.

    If I were in the same situation, I hope someone would do the same. There is no reason police should not be accountable for their behavior while performing their duties. After all, isn't it they who so often say "If there's nothing to hide, you've nothing to fear"? What would be wrong with a video of police officers doing their job properly? If anything, that would protect them if they were later accused of doing something wrong. The only ones with anything to fear from a video recording are those who intend on doing something wrong, and that's the exact time we need them being taped.

  • In typical deference to the police, the court has technically ruled against them whilst explicitly communicating to them what will be accepted as a workaround: "a police order to stop filming or leave the area."

Some people have a great ambition: to build something that will last, at least until they've finished building it.

Working...