Short and Sweet Blog

Every good cop in this country should be happy about what happened on August 26, 2011!!! Why? On that day the United States Court of Appeals for the First Circuit (Northeastern U.S.) handed down an opinion strongly protecting the rights of we the people to record the police while they do their jobs in public. In Glik v. The City of Boston, et al., the Court decides that it is already “clearly established” that an individual has a first amendment right to record video of police while on duty in public and a fourth amendment right against being arrested for doing so notwithstanding the Massachusetts wire-tap statute. The Court goes so far as to call this first amendment right “virtually self-evident.” The right identified by the First Circuit is predicated upon Supreme Court precedent that generally the government may not limit the “stock of information” available to the public. This right, the Court holds, extends to members of the public who are not “reporter[s] gathering information about public officials.” It is also important to the Court that the filming was in public, that it was done from a “remove” and that Glik neither spoke to nor molested the officers in any way.

The result in this case is good news for everyone, but especially so for cops given the public display of video recordings of police apparently threatening arrest and prosecution of citizens lawfully exercising their first amendment rights. This decision removes from argument, within the territorial boundaries of the U.S. First Circuit Court of Appeals anyway, the proposition that such recordings are unprotected and subject to state infringement. All police should be happy about this since it sounds the death knell for such reports as this one which place the police in a very bad light indeed.

Law enforcement for centuries has gotten the benefit of the doubt in court. Convictions must be based upon evidence of guilt beyond all reasonable doubt. Many such convictions have been obtained based nearly solely upon police court testimony. This “presumption” is both wise and understandable. It is wise since police are hired to serve the law abiding community and to arrest law breakers thus they are empowered to do on our behalf what we would otherwise have to do for ourselves. It is also understandable because cops, as the representatives of the rest of us, are presumed to have no reason to lie about what they have seen and heard. They are generally perceived by juries as being unbiased truth tellers. Obviously what is true in most communities is not true in all a la O.J. Simpson and downtown Los Angeles.

The proliferation of video recording equipment in society should have been welcome news to the good police officer who expects to be filmed doing his job well and justly. But now, in view of the many videos and even more reports of police attempting to intimidate private citizens into not filming their activities, every thinking head will have a question. When numerous police are captured actually turning their power against those whose only crime is video recording, is it fair to wonder whether they have something to hide? That perception has the potential to make the job of the policing effectively impossible. If the police aren’t given the benefit of the doubt in court, how can our laws ever be enforced. Will a change in perception with the attendant reduction of convictions cause the frustrated police to take enforcement matters into their own hands since they will no longer be able to “trust” the public? That would be truly corrupt. Even if it doesn’t go that far it has the potential of creating a dangerous downward spiral.

Part of the problem is that, like in every profession, there are bad people who are police. There are those who simply relish control and power. They push things up to and over the line when they can. They like the adrenalin rush. And they feel protected in the current system because it’s their word against that of the ordinary citizens and “who you gonna believe?” Of course, a problem will arise when they take the case to court and the prosecution has to say, “who you gonna believe, me or your lying eyes?” The potentially worse problem arises when a significant number of jurors ask themselves what would this policeman be saying if there had been a camera, this could wreck the entire system of prosecutions?

So why are police concerned about video recordings anyway? There are at least three reasons that occur to me. 1. Everybody, even police, can have a bad day and a bad day recorded on video may get very bad for them. 2. They are concerned that being recorded “doing their job” may interfere with their ability to do their jobs in the future by disclosing “police procedures” which are not already generally known; by public dissemination of their identities which will be received by members of the public who they would rather be invisible to; and, 3. The traditional police model of “it’s us against them” forces police in general to protect even the bad apples among them and this can be very difficult when the bad apple in blue has made an appearance on a recorded video acting disgracefully.

Why then would good cops, and the rest of us, be happy with the protection provided by this First Circuit ruling of the right to unobtrusively record video of police in public? Because it takes the police out of the box they which they are in. They can’t just say to themselves, it’s us against them. They will themselves now have to discriminate between good cops and bad cops, because they can no longer afford to protect the bad ones. Harboring and remaining silent about bad police endangers all of them. They no longer have any choice. They will now have to discriminate in their support between those “good cops” having a bad day and those bad cops who can’t be trusted with power and who ought to be shown the door. It forces the police to hold themselves and their “brothers in blue” to a higher standard. They cannot hide from the camera being wielded by someone with first amendment rights. So if they insist on “protecting their own” and they protect the bad among them as well as the good, then they’ll lose the benefit of the doubt. This result is one which, neither they nor we, can afford.

This entry was posted on September 2, 2011 at 10:12 pm and is filed under Law, The US Constitution. You can subscribe via RSS 2.0 feed to this post's comments.

Tags: Boston, First Amendment, First Circuit Court of Appeals, Fourth Amendment, Good Police, Los Angeles, Massachusetts, Police Acting Badly, Police Intimidation, Video Recording, Wire Tap law