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Filming police in public is not a crime, even if some cops think it is

On May 14, shortly after Gov. Jan Brewer signed SB 1070, Hugh Holub heard that a Mexican protest of the law called “A Day Without a Mexican” had left Nogales nearly vacant and the normally bustling port of entry there empty.

Holub, a lawyer and freelance writer who writes several blogs, including one for TucsonCitizen.com, and columns for newspapers in Green Valley and Nogales, grabbed his camera and headed for the border to document the effect of the protest.

Finding the reports accurate, he walked up to the mostly empty port and while standing in the public right of way attempted to take pictures.

Burly customs agents quickly surrounded him. They took his camera and deleted the photos, saying he was not allowed to take pictures of the port.

He didn’t protest but he was pretty sure they were wrong. He told Nogales International Editor Manuel Coppola about it and Coppola told him the same thing had happened to him. He had gone to the port earlier in the day and tried to take pictures from nearly the exact spot but a customs agent accosted him and prevented him from taking photos.

Coppola, according to a column about the incident Holub wrote for the International, stood his ground and demanded to talk to a supervisor. After a long wait, Coppola gave up and left without any photos.

Coppola protested to the customs pubic affairs office and, according to Holub’s column, was told by spokesman Brian Levin, “We don’t know who is taking photos of our operations and our employees, so we have to challenge people discovered taking photos/video to ensure there are no concerns.”

Levin’s statement should send a chill down the back of any liberty-loving American, especially those who believe the government exists to serve the people and it is we who should challenge them, not the other way around.

This grossly distorted view of public service, not to mention the brazen violation of the First Amendment, could be dismissed as just a few over-zealous customs agents in need of better training. But unfortunately this is a sign of a larger trend in which law enforcement agencies seek to wall themselves off from public scrutiny.

Consider the case of Anthony Graber, a knucklehead from Baltimore who was speeding on his motorcycle on Interstate 95 in March, popping wheelies and doing other dumb and reckless things, according to an editorial in the USA Today.

He’s facing 16 years in prison but not for reckless driving. No, the horrendous felony Baltimore cops and prosecutors want to imprison Graber for is a video of his arrest made via a helmet camera and posted on YouTube.

The video shows that after Graber stopped for traffic, a car pulls in front of him and man in a sweatshirt and jeans hops out brandishing a gun yelling at him to get off the bike. It’s not until after he tells him to get off the bike several times that he identifies himself as a state police officer.

As police tactics go, it’s clear from the video Trooper Joseph D. Uhler needs to go back to the academy and learn how to do a proper traffic stop, including how to do one when you’re in plain clothes and driving an unmarked vehicle (or perhaps off duty and driving his own car?).

Uhler’s  lucky Graber didn’t have his own weapon and try to defend himself against what appeared to be a nut with a gun bolting out of the car that just cut him off.

Graber got a ticket for speeding. Then a few days later he posted the video on YouTube. According to the Washington Post, after Graber posted the video of the incident on YouTube, police got a search warrant for his house and stormed it like he was some fiendish drug dealer, seizing computers and cameras.

Graber was charged with four counts of wiretapping for recording and posting the video without the Trooper’s consent. (I guess Uhler didn’t like looking like a fool on the world wide web.)

Maryland prosecutors are distorting the state’s wiretapping law (written before consumer video cameras were ubiquitous) to teach the public a lesson: Don’t film cops or else. We could brush that off as Maryland just being kooky, but Illinois and Massachusetts have similar wiretapping laws and 10 other states have “consent” laws that require anyone making a recording, even in public, get the consent of anyone in the recording.

How do people out in public have a right to privacy that prohibits their being recorded, including cops? How is that wiretapping?

Cops don’t want to be filmed arresting people because if they do something stupid, such as beating an unconscious University of Maryland student and then lying about, as this CNN video shows Maryland state cops doing in March, they don’t want video proving they used excessive force and lied about it in their reports of the incident (one of the cops who wrote up the incident said a police horse kicked the unconscious man as a way to explain all of the victim’s bruises. No horse is seen kicking the man in the video).

Interestingly, no one has been charged for wiretapping in this case.

Police and prosecutors in several states are using these privacy and wiretap laws, or other laws including disorderly conduct, to prevent the public they’re supposed to serve from filming them doing their public jobs on public streets.

Cops do a dangerous job and most people don’t know police tactics or training and therefore don’t understand why they act the way they do sometimes. But police who properly follow their training have nothing to fear from video. They should embrace public scrutiny to demonstrate how well they do their jobs. Moreover, law enforcement agencies should want to know if any officer has used excessive force, failed to follow his training or lied in his reporting so the agency can discipline and retrain the officer, rid itself of a bad cop, if necessary,  or file charges for any crimes committed.

Public scrutiny of the police is good, not bad. Nor is it a crime.

If the public doesn’t soon reassert its primacy in its relationship with law enforcement, we may find ourselves standing upon a slippery slope in which the bottom is a secret police force.

Anthony Graber likely deserves to be punished for endangering the public with his reckless driving. The penalty for that (which he wasn’t charged with) in Maryland is a $500 fine and six points on your license.

Filming his arrest neither harmed nor endangered anyone. If he goes to prison because of it, it harms us all.

Graber’s YouTube video:

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