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Thread: First circuit decision on recording police

  1. #1
    Regular Member Rich B's Avatar
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    First circuit decision on recording police

    From Mass. of all places:

    Quote Originally Posted by http://www.baz.com/quark/2011/08/first-circuit-reiterates-recording-police-isnt-a-crime.html

    1. You have a First Amendment right to record public officials in public while performing their duties.

    The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [First Amendment protections].

    2. That right does not just extend to some sort of "professional" press corps - we all have it.

    It is of no significance that the present case...involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press.

    3. Officers who are arresting people today for "wiretapping" violations while exercising their First Amendment rights are on notice that they may be held personally liable for these illegal arrests.

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    Awesome
    Last edited by customcreationllc; 08-31-2011 at 08:29 AM.

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    Regular Member KIX's Avatar
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    Good to note.

    However, it is very much like open carry in the respect that we have officers around the country confiscating evidence against them and destroying it. Such is the case in Florida where the cops open fired on a suspect in a vehicle and then went around grabbing all the cell phone video they could. Took one individual to pluck his SD card and stick it in his mouth to get it out of there (how his saliva didn't kill the card is beyond me!).

    The ONLY way to make this "stick" here in CT is to make video and sue if the video is confiscated. Without the lawsuits, they will still do what they want to do.

    Good news, either way.

    Jonathan
    www.ctpistolpermitissues.com - tracking all the local issuing authority, DPS and other insanity with permit issues
    www.ctgunsafety.com - my blog and growing list of links useful to gun owners (especially in Connecticut).

    Rich B: My favorite argument against OC being legal in CT is "I have never seen someone OC in CT".
    I have never seen a person drink tea from a coke bottle while standing on their head, that doesn't mean it is illegal.

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    Regular Member Rich B's Avatar
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    Quote Originally Posted by KIX View Post
    The ONLY way to make this "stick" here in CT is to make video and sue if the video is confiscated. Without the lawsuits, they will still do what they want to do.
    That is true of any law, that is not the point of this article though. The point is that the 1st circuit has established that there is first amendment protections for recording the police in public places. This is will be used throughout the land in many cases. The legal landscape in MA especially has just changed.

    Police (like anyone else) never have to abide by the law. Even with many successful lawsuits, there will always be bad apples in every bunch.

    Case law will be established for many things in CT, but it never takes away the fact that you may be arrested anytime, anywhere and for anything. The only thing that matters is if you are right or wrong when you get to court.

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    While this is a promising development, remember that decisions by the First Circuit are not binding in CT. Our state's appellate jurisdiction is the 2nd Circuit Court of Appeals. The First Circuit's decision would be merely persuassive -- not binding. That is not always a bad thing either. See, e.g., the first circuit's decision in the 2009 case Schubert v. City of Springfield, 589 F.3d 496.

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    Regular Member KIX's Avatar
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    . . . The fact remains, however, that the officer saw a man carrying a gun in a high-crime area, walking toward an important public building.

    Schubert contends that his clothing, his age, and the fact that he was carrying a briefcase are factors that should undercut the reasonableness of Stern's suspicion. We are not persuaded. A Terry stop is intended for just such a situation, where the officer has a reasonable concern about potential criminal activity based on his "on-the-spot observations," and where immediate action is required to ensure that any criminal activity is stopped or prevented. Terry, 392 U.S. at 20. We need not outline in detail the obvious and potentially horrific events that could have transpired had an officer noted a man walking toward the courthouse with a gun and chosen not to intervene.
    ???

    This seems to affirm Terry, I probably missed something entirely here since I don't have a paid legal service to get copies of rulings (unless you know a good, free site?).

    Jonathan
    www.ctpistolpermitissues.com - tracking all the local issuing authority, DPS and other insanity with permit issues
    www.ctgunsafety.com - my blog and growing list of links useful to gun owners (especially in Connecticut).

    Rich B: My favorite argument against OC being legal in CT is "I have never seen someone OC in CT".
    I have never seen a person drink tea from a coke bottle while standing on their head, that doesn't mean it is illegal.

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    Quote Originally Posted by KIX View Post
    This seems to affirm Terry . . .
    I don't want to jack the thread so I'll just respond quickly. I actually think that Schubert perverts the holding of Terry by saying that an officer has RAS to stop, detain, and confiscate property simply because someone is carrying a pistol in a location where a police officer does not want that person to do so. You can find the case here: http://www.ca1.uscourts.gov/pdf.opin...-1370P-01A.pdf

    The relevant facts were:

    On July 21, 2006, Officer Stern, seated in his patrol car near the Springfield courthouse, observed Schubert walking toward the courthouse. The location is considered a high-crime area. Schubert was dressed in a suit with an unbuttoned jacket and was carrying a briefcase. Stern noted that Schubert was also carrying a handgun in a holster. Despite the very hot weather that day, Schubert was wearing his suit jacket, apparently in order to conceal the handgun; however, he had the jacket unbuttoned, which allowed the officer to see the weapon.
    The officer's response to this observation:

    On Schubert's account of the events, once Stern noticed Schubert's partially concealed weapon, the officer leaped from his cruiser in a "dynamic and explosive" manner, with his gun unholstered. Stern then pointed his weapon at Schubert's face. The officer ordered Schubert to stop and put his hands in the air.

    * * *

    Shortly thereafter Stern escorted Schubert into the back of the cruiser.

    * * *

    Stern told Schubert that he was free to go, but that Schubert would have to retrieve his gun and gun license from the Springfield police department.
    The plaintiff Schubert argued:
    Schubert primarily contends that Stern lacked reasonable suspicion to stop him and that the scope of the stop was not reasonably related to the officer's original purpose.

    * * *

    Schubert argues that Stern was unjustified in stopping him initially because Stern did not have an articulable suspicion, based on the totality of the circumstances, to detain Schubert.
    The court stated:

    We disagree. Stern had an articulable, objective basis for his reasonable suspicion that Schubert may have been engaged in criminal activity: the officer observed Schubert walking toward the Springfield courthouse carrying a gun. This simple, undisputed fact provided a sufficient basis for Stern's concern that Schubert may have been about to commit a serious criminal act, or, at the very least, was openly carrying a firearm without a license to do so.
    (emphasis added by me)

    So the First Circuit held that a Terry stop (and confiscation of a carried weapon) is justified if an officer sees you carrying because there is a basis to believe that you may be openly carrying a firearm without a license. It creates a defacto "papers please" situation for all who carry firearms. Terry turned on its head.

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    Regular Member Rich B's Avatar
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    He was not openly carrying, he was attempting to conceal.

    I have said it before, concealing and failing is not the same as open carrying and from what I have seen, it brings a different scrutiny.

    I don't believe it should, but there are other cases out there along these lines. The guys in Georgia have seen this before as well since their permit is much like ours.



    The easiest way to sum up the thinking behind the difference is that criminals are known to conceal, not to carry in the open. Concealing a firearm demonstrates a certain lack of trust and honesty that is not present in open carry.

    I may not agree with it, but that is what I am seeing so far.

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    Regular Member brk913's Avatar
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    Maybe this one will make it to SCOTUS for a nationwide ruling although I am guessing he will be found not guilty by a jury so it won't get that far...

    http://www.infowars.com/man-faces-li...ording-police/

    Man Faces Life In Jail For Recording Police

    Every other case involving people arrested for filming cops has been thrown out of court, but media promulgates hoax that recording police is illegal

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    Regular Member KIX's Avatar
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    Thanx for the reply gun toting, food for more research.

    *****

    There was an insane case in New Hampshire (which shocked me) where they actually confiscated the homeowners recorded video from cameras on his own property. Don't know what ever happened to that one, but that shocked the hell outta me.

    Jonathan
    www.ctpistolpermitissues.com - tracking all the local issuing authority, DPS and other insanity with permit issues
    www.ctgunsafety.com - my blog and growing list of links useful to gun owners (especially in Connecticut).

    Rich B: My favorite argument against OC being legal in CT is "I have never seen someone OC in CT".
    I have never seen a person drink tea from a coke bottle while standing on their head, that doesn't mean it is illegal.

  11. #11
    Regular Member oldbanger's Avatar
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    In summary, though not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.

    We thus conclude, on the facts of the complaint, that Glik's recording was not "secret" within the meaning of Massachusetts's wiretap statute, and therefore the officers lacked probable cause to arrest him. Accordingly, the complaint makes out a violation of Glik's Fourth Amendment rights.

    http://news.brevardtimes.com/2011/08...ng-police.html

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    Don't forget about using Qik.com's free recorder for most smart phones.

    It immediately moves the video up to the cloud. So even if the officers take the phone and destroy it, the video is safe up in the cloud.

    Don

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    Regular Member DDoutel's Avatar
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    Quote Originally Posted by dcmdon View Post
    Don't forget about using Qik.com's free recorder for most smart phones.

    It immediately moves the video up to the cloud. So even if the officers take the phone and destroy it, the video is safe up in the cloud.

    Don
    It's probably worth mentioning here that I've tried this application. It should be noted that at least on the Blackberry Bold 9650, this app is extremely flakey. Every time I've tried to use it, I've had to pull the battery to get out of a locked up interface. Your mileage may vary!

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    I've never had trouble with it on either a BB or an iPhone. Of course it can get good or bad with every update. When I get an indication that there is a new version of any app on my iphone, I wait until there are a couple of weeks of reviews. Sometimes the developer releases a buggy mess with a lot of new features. Other updates are mainly bug fix releases. You don't know unless you install it. So I always wait until there is feedback posted.

    I've been a beta tester. Its fine if you like that kind of thing.

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    Regular Member Rich B's Avatar
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    I like the idea of storing the data in the 'cloud', but I don't see the utility in a recorder that you need to turn on.

    If you don't have a recorder that can run all the time, there is little point to it IMO.

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    Rich,

    You walk around with your audio recording on all the time?? That thing must eat batteries. But I understand the concept. At the end of the day, if nothing happens, you delete the recording.

    However, you have a phone with you anyway. So there is nothing to prevent you from having a voice recorder on you, and a video recorder that is available for use.

    don

  17. #17
    Regular Member Rich B's Avatar
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    Quote Originally Posted by dcmdon View Post
    You walk around with your audio recording on all the time?? That thing must eat batteries. But I understand the concept. At the end of the day, if nothing happens, you delete the recording.
    Yes, I do. It eats approximately one AAA per 24 hours of recording.

    Well worth it. I would have never caught the New Haven incident without it.

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