California Cops Seize Recordings Of Questionable Arrest, Claim They Have The 'Right' To Do So

from the some-evidence-we-keep,-others-we-delete dept

Photography Is Not A Crime again reports on police acting like they have the right to confiscate people’s cameras and phones in order to “secure” recordings of apparent police misconduct.

Police in Northern California beat and tased a mentally ill man before siccing a dog on him, then turning on citizens who recorded the incident, confiscating cell phones and in one case, ordering a witness to delete his footage.

But one video survived anyway, slightly longer than two minutes, where a cop from the Antioch Police Department can be heard saying he wants cameras confiscated right before the video stops.


The video is shot at a distance that makes it unclear as to how much damage is being done, although you can hear the meaty sound of someone being struck several times, as well as the nearly nonstop barking of the police dog and crackling bursts of Taser fire. Being filmed vertically doesn’t help, although I’m generally of the opinion that simply collecting footage that wouldn’t normally be captured is always useful and whatever makes the person filming most comfortable (seeing as it’s generally a very uncomfortable situation) is the method they should use. The recording also shows the arrival of more officers, as though the nearly invisible civilian at the bottom of the cop pile (which begins with 5 officers and a police dog) was on the verge of escaping the whole time.

Towards the end of a video, an officer pulls his squad car directly in front of the “scene” in an obvious attempt to limit the amount of onlookers with damning recordings. Shortly after that (and after the video ends), the cops started attempting to seize “evidence.”

A second witness ABC7 News spoke to says officers began confiscating cellphones from anyone who shot video of the incident. An officer asked for his cellphone after he shot video and the witness said, “Then he took my phone anyway because I didn’t want no problems. He emailed the incident to his phone.

The first witness said, “They didn’t take no for an answer apparently because they pulled one lady out of her vehicle to get it, and she wouldn’t give it up and they were about to arrest her and finally they let her go because I believe she gave it up.”

However, a third witness told ABC7 News he was ordered to erase his video. So he did. He said, “They were being kind of controlling, like demanding, ‘erase your phone’ and they were trying to take people’s phones away.”

No surprises here. Excessive force deployed, followed by a roundup of “witnesses,” which actually means recording equipment and not human beings. The police have no right to do this, but in far too many cases, they assume the public either doesn’t know this, or can easily be intimidated into complying with the unlawful request.

Here’s the absolute bullshit the police department handed over in defense of its ad hoc phone confiscation:

Antioch police told ABC7 News in a statement, “If a person is not willing to turn it over voluntarily, an officer can sometimes seize the device containing the video. The police would have to get a search warrant to retrieve the video from the device.”

As Carlos Miller points out, this is completely wrong and has been wrong for a few years now. Guidelines from the Department of Justice passed down in 2012 state the exact opposite. Police can ask for compliance, but they need to be extremely careful in how they ask.

A general order should provide officers with guidance on how to lawfully seek an individual’s consent to review photographs or recordings and the types of circumstances that do—and do not—provide exigent circumstances to seize recording devices, the permissible length of such a seizure, and the prohibition against warrantless searches once a device has been seized. Policies should include language to ensure that consent is not coerced, implicitly or explicitly…

[…]

Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.”

Cops tend to claim that footage of police misconduct is “evidence” in order to justify warrantless cellphone seizures. It may very well be, but it’s the sort of evidence they want to hide, rather than the sort of evidence they’d like to retain. Note that the above officers ordered people to “delete” recordings, something they wouldn’t do if the recordings held actual evidence of a crime (or at least, a crime not committed by uniformed officers). Either way, crime or no crime, the police can’t just start seizing phones as “evidence.” The DOJ guidelines go on to say:

The Supreme Court has afforded heightened protection to recordings containing material protected by the First Amendment. An individual’s recording may contain both footage of a crime relevant to a police investigation and evidence of police misconduct.The latter falls squarely within the protection of First Amendment. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”). The warrantless seizure of such material is a form of prior restraint, a long disfavored practice.

So, cops know — or should know — they can’t do this. And I firmly believe most of them know this. The problem is that they just don’t care. The quickest “fix” is swift seizures of recordings using baseless arrest threats and other forms of intimidation. It’s an instinctual closing of ranks. Once the requisite dozen or so officers needed to affect an arrest had been met, one of the officers originally in the one-sided melee stands back and says he wants “that cellphone and that cellphone.” Well, he can’t have them. Not legally. And yet, officers apparently got what they wanted — rather than what they could legally obtain — in the end.

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Comments on “California Cops Seize Recordings Of Questionable Arrest, Claim They Have The 'Right' To Do So”

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76 Comments
That One Guy (profile) says:

Their own arguments shoot each other to pieces.

If they’re going to claim that they need to seize the cameras because they hold ‘evidence’, and then delete the damning video/pictures, that sounds a lot like ‘destruction of evidence’ to me, and last I checked, that’s a criminal action(or is if anyone but a cop does it apparently). If the videos aren’t evidence on the other hand, they have no valid, legal excuse to demand them.

In the end though, cops will only stop doing stuff like this when they face actual punishments for doing so. No matter how many courts claim that videotaping police is legal, no matter how many officials instruct the cops under them that people recording them aren’t breaking the law, they will only care once those rulings and instructions come backed with punishments for failing to comply, and not a minute before.

Socrates says:

Re: Vigilante Justice

Martin Niemöller say hallo to every US citizen.

The US have concentration camps, secret laws, secret interpretations, and spy on friends and foe alike. The US pretends to be a democracy.

If actual punishments and impeachments isn’t coming soon enough from the government, Vigilante justice will happen. As the US is mindbogglingly corrupt there is no good way out of it.

1) They may defend the corrupt, and it will get worse
2) They may continue at the present level, and the vigilante justice will spread
3) They may suddenly fight corruption and vigilante will seam to be the only way to keep the regime at it.

No amount of death machines will be able to contain the situation. The regime will then be the enemy. More aggression will only cement the sentiment. To whom will the god cops choose to a be traitor? The regime, the citizens, their killer cop friends?

Citizens might stop believing that not fighting back is wise. Some already have. What if they start defending their loved ones or some other victim. It will escalate. A single “wrong” bullet is all it takes.

The US have managed improbable feats in the past. Perhaps democracy and true citizen rights will prevail. Perhaps Techdirt and the rest of us can make the difference. I hope so.

Socrates says:

Re: Re: Re: Vigilante Justice

USA is the most prominent gambler, not the only one.

If EU citizens understand that ISDS “courts” is intended to be above any and all elected and judicial control, the EU commission might get civil war at their hands. Members of the commission will likely be hunted and killed. More so if it is attempted to hide and implement it. After England starved to death Irish people 150 years ago, the rulers in England had to live in fear most of this time.

A secret ISDS might kill EU and some politicians, but Europa will survive as a civilized society. Attempts to scale back any above the democratically elected “laws and courts” to save EU, before EU directives become mute anyway, will likely happen. Europa without EU will mostly be the same as now.

This evil comes from USA. USA does not have an easy way to scale back this abomination, it is too ingrained. And if USA stops being united states, it isn’t USA anymore.

The same goes for lobbyists writing laws, lobbyists getting regulating positions, super PACs, gerrymandering, minus votes, statistical impossible election results, and so on. Many places in the world it is getting worse; in USA it probably can’t.

The same goes for the police. More heavily armed, more trigger happy, more agressive against the press and anyone filming, and unable to scale back without external supervision.

The same goes for injustice. Rape victims that get beaten up to such degree that an ambulance drives them to hospital, get one special treatment in USA, they get billed.

The same goes for protests. Occupy, arab spring and greek protests, mirror injustice, corruption and lack of power. The regime in USA does nothing to fix it, but prepares to attack the population instead. This is a gamble, and not a good one. It is a longest shot, and they go for broke.

Tom Stone (profile) says:

Re: charges?

Be very careful when taking pictures of the Police. The law doesn’t matter, they can and sometimes do beat the crap out of people or kill them and then lie about it successfully. If there are other people witness and/or take video of you being shot or beaten, you or your heirs might recieve a nice settlement in a few years.
You are still crippled or dead. These tactics are meant to keep the rabble in line through fear, and they work most of the time.And it is escalating.
“The purpose of Terror is to Terrorize”.

Anonymous Coward says:

Re: Re: charges?

This is why it is important not to stand near the police in standard firing pose holding out your phone. However, setting your phone to live-stream video to some online service while holding it up to your ear, with the camera just happening to be pointed at the police (which means you’re pointing your head away from them) should become standard practice for anyone encountering a police operation.

That way, they’re unlikely to find you confrontational, and if they decide to confiscate your phone just because it was there, the video is already somewhere else. You can even pretend to be on the phone while they approach you, which makes you even LESS threatening. Bonus points for having your headphones on/in, which implies that you can’t hear what they’re doing as well as not looking at what they’re doing (until later).

Uriel-238 (profile) says:

Re: Might Makes Right

In a feudal system that is the way it is. Bertrand Russel put it really well:

War does not determine who is right – only who is left

Originally, we founded this country on some precepts based on the notion that feudalism and all that comes with it, from might equating to right and the divine right of kings (I was born with tons of money, ergo I win.) really stank as rules on which to base a nation.

We also knew even then that rights and freedoms of the people deteriorate when power goes unchecked.

Anonymous Anonymous Coward says:

Dear DOJ:

How many actual terrorists around, right now?

How many cops are regularly violating peoples civil rights and disregarding your ‘guidelines’,right now?

How can you decide non-existent terrorists trump everything else?

NSA got dirt on you?

Or is it the military/industrial/espionage complex, with your next job?

FuhkThePohlis says:

Re: City Form Submission

Why do you think the “bulk” of police are good?

Has anyone in this department recovered the citizens’ phones, provided evidence against the perps or even spoken out?

Then they are co-conspirators to felony murder and violation of rights.

There are no good cops. There are only bad cops and worse cops. They are criminals with government sanction, nothing more.

Anonymous Coward says:

At what point does the various actions of police officers get all of them included in the FBI National Gang Threat Assessment?

A person with the same religion and regional origin as someone who crashed a plane into a building gets eyed as a possible terrorist, but a person wearing the same uniform as someone else who abuses their authority, beats the (sometimes living) shit out of someone, who may even have already been restrained, or just “accidentally” shoots them while they’re cuffed and lying on their stomach, isn’t considered a possible gang member?

jimb (profile) says:

seizing phones for video...

“Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.”

Well, there you go then. Clearly the police on the scene, having just been participants in a crime, abuse of authority at the least, are seizing the “evidence of [that] a crime” and are in the clear on this. After all, what’s the point of being a cop, abusing your authority, and not being able to deny the public the ability to review your conduct. The badge in these cases becomes more like an invisibility cloak, because if there’s no solid evidence some official abuse happened, its very near the same as if the event never happened. No proof, no case, and cops are very well aware of that fact.

Tionico says:

Re: seizing phones for video...

give the cop your contact info and let him know you will remain the lawful custocian of the “evidence”, which he can then subpoena into the court as asmissible evidence…. made the stronger by the presence and testimony of the maker of the recording. If he is unwilling, he cannot take your personal property without a warrant. Stand your ground. Until thousands of us do that, this abuse of police power will not stop.

Ferguson Missouri is in emergency status with a curfew imposed because the people are rioting, ostensibly because a kid got shot by a cop. Some evidence suggests the shooting was jurtified, as the huge kid was apparently attacking the cop, fearing for his own arrest for a burglary just committed. If Antioch cops persist in this sort of behaviour, it will be up to the people of Antioch to rein them in… forcing their city govermnment to take action, naming the abusive cops in formal complaints, lawsuits for unlawful seizure of personal property, etc. If they don’t govern themselves, things will degenerate…. sooner or later if they don’t get back behind their designated line of acceptability, they should not be too surprised when some of them begin to disappear, or are met with untoward consequences. One way or another, a free people WILL deal with this sort of abuse. The “detainment” is one issue, and their conduct whilst effecting that. But their actions against bystanders are every bit as egregious and unaceptable as the beating. People will not long endure tyranny. Tyrants should by now understand this.

nasch (profile) says:

Re: Re: seizing phones for video...

give the cop your contact info and let him know you will remain the lawful custocian of the “evidence”, which he can then subpoena into the court as asmissible evidence…. made the stronger by the presence and testimony of the maker of the recording. If he is unwilling, he cannot take your personal property without a warrant.

I won’t say you shouldn’t do this, but it’s no guarantee of success. The officer can cuff you, forcibly take the phone, and delete the video. Sure you can file a wrongful arrest lawsuit, but that won’t get the video back, and at most the officer may get some unpaid vacation.

Until thousands of us do that, this abuse of police power will not stop.

I hope that’s enough to stop it.

Anonymous Coward says:

Cops tend to claim that footage of police misconduct is “evidence” in order to justify warrantless cellphone seizures.

Officer: Gimme that phone, we need your vid for… evidence!

Citizen: You need the video? Cool. BTW, it’s 2014. I’ve got a thumb drive here, I’ll give you a copy. Or should I attach it to an e-mail? Maybe upload it via your PD’s website? It’ll take all of sixty seconds, you can watch me do it.

That One Guy (profile) says:

Re: Re: Re: 2A

Hmm, that actually gives me an idea, what about an app that made deleting things a two step process?

The first step would make it look like the video/picture had been deleted, but in reality all the initial ‘deletion’ did was toss it into the phone/tablet version of the Recycle Bin. To delete the file for real, you’d have to go through the (disguised) app itself, and delete it from there.

Then if a thug wanted you to delete incriminating evidence, you put up a mild objection to make it seem realistic, ‘delete’ it, and then simple ‘un-delete’ it once you’re safely away.

Anonymous Coward says:

I could MAYBE see a cop making an honest mistake on whether exigent circumstances exist and confiscating a phone for evidence. But even that’s a stretch. He’d have to believe that someone who just voluntarily took a video is going to delete that video before he can get a warrant.

But deleting the footage? That’s so obviously destruction of evidence that there’s no way to give him the benefit of the doubt. As the first posted pointed out, if he thinks there was a crime – even if he mistakenly thinks that the videotaping itself was a crime – then he thinks the video is evidence. If there was no crime, and the video is therefore not evidence, then there’s no reason to confiscate or delete the video.

There’s not any state of mind the cop could be in to excuse his actions even as simple ignorance. He’d have to be SO ignorant as to not realize that destroying evidence is bad, or not realize that destroying someone’s legally created video is bad. That’s just not plausible – and even if it was, such a person would be grossly unfit for the job and should not serve even one more day.

So I can only conclude that the officer knowingly deleted footage to cover up his actions. This needs to be prosecuted. It’s not justified by the law and it’s not even an honest mistake. It’s destruction of evidence and it’s robbery.

According to California law, “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Looks like the elements are met – personal property taken, check. In the possession of another, check. Taken directly from the person, check. Against their will, check. Force or fear, check.

“Robbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years.” Sounds good to me. I’m not asking for a life sentence. I’m just asking for serious consequences. 2-5 years should be a pretty good deterrent.

Name says:

"So, cops know -- or should know"

“So, cops know — or should know”

Funny, that. I got charged with posession of an open title (not signing the title) in Illinois because I did not sign the title to a vehicle I had just purchased and I got pulled over for a headlight being out(it was was intermitent). The sheriff claimed there was no excuse for ignorance of the law. The court fine was $1,000 dollars and was considerd a felony. After I got a lawyer they charged me with a Misdemeanor and he managed to get the fine reduced to $600.

If I should have known, or as they say, ignorence of the law (and who follows that by the way-I have better things to do then look up current laws) is no excuse for us, why are they so different?

nasch (profile) says:

Re: Re: Re:3 Re:

Given that Whatever’s made the exact kind of “blame the civilians” argument before, I think it’s probably him.

I don’t think so, he usually posts at least a couple of paragraphs, and would generally change topics after defending the police state (and then later say he wasn’t defending the police state). This is just the wrong style.

Uriel-238 (profile) says:

Re: Interfering with law enforcement

If you didn’t get in the way of the police then maybe this wouldn’t happen, but this is what happens when criminals feel entitled to interfere with law enforcement.

Not sure if Poe.

Interfering with law enforcement usually takes the form of getting between them and their lunch, or being in the wrong place at the wrong time. There’s little difference between “criminals” interfering with “law enforcement” and, say, The French interfering with the Gestapo in German-occupied France.

…or, for that matter, Germans interfering with Weimar Paramilitary in pre-Nazi Germany. All three cases come down to a martial upper caste feeling slighted by the presence of a civilian lower caste and retaliating by kicking the shit out of them.

It’s only recently become beyond doubt that law enforcement and agents of the DoJ in the United States are a separate caste to us ordinary shlubs.

Editor-In-Chief says:

Protective Clothing Alternatives

TASER proof clothing – the next addition to the arsenal of the coppers. I have seen on Hack-A-Day an example of TASER proofing jackets.

On the http://www.spartancops.com/thorshield-taser-proof/, the concept is that only “criminals” will use these techniques to protect themselves, as quoted:

While ThorShield is currently only available to law enforcement and military, I have already seen websites sharing the “secrets” of this technology to criminals.

Citizens are considered to be criminals in the basic mindset of coppers.

As has been noted elsewhere in the above responses, it will get to the stage where any policeman will become a target – targeted for death. And their families will likewise suffer. It is a natural progression from where we are now in response to the actions of bad coppers.

Once this starts happening, it will progress to those who control the police, politicians and business owners, etc.

The problem is that most of these are actually afraid to face people in a proper manner and this fear controls their actions. So to prove to themselves that they are not afraid, they lord it over those they are supposed to protect. Any insult (be it disobedience to any command or standing up for your own rights or pointing out that they are wrong in their actions) requires immediate forceful response to show themselves not afraid. What they don’t see is that their response demonstrates their fears even more openly.

David Oliver Graeme Samuel Offenbach

Anonymous Coward says:

Re: Re: Re:

This seems like it might even be a two-tiered case of CYA in action: there’s the immediate need to destroy evidence of this particular beating, and a secondary goal of bootstrapping their own legal defense for destroying the evidence in the first place.

From Cornell:

Qualified immunity … protects government officials …, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.

It seems like the more often cops across the nation illegally seize recordings, the easier it is to provide evidence that the average LEO simply doesn’t understand the complexities of laws regarding citizens recording the activities of law enforcement. Therefore, any “normal” hypothetical officer can’t be held accountable for this particular violation of civil rights.

The more often cops violate people’s rights, the easier it is to shield themselves from prosecution for those very same violations using qualified immunity.

Of course, this only works as long as judges/prosecutors keep agreeing that the First Amendment isn’t “clearly established.”

Anonymous Coward says:

Don't record locally, stream it and record remotely

Recording while streaming to Ustream, Qik, etc. they still can seize your phone and attempt to delete the evidence to cover their asses but seizing your recording on a remote server is going to be a lot harder or impossible is there are other people that copied it first.

And you can keep recording all the time while they try destroy the proof, so give them the rope to hang themselves.

donalds (profile) says:

police accountability

DoD study on random polygraphs for personnel. http://t.co/Tr7uafTd

“the polygraph is the single most effective tool for finding information people were

trying to hide.” – DIA, NSA.

CBP could require current employees to undergo polygraphs. http://t.co/MpPsmq2p

Make policy that polygraphs for senior hires expire every 2yrs.

http://shar.es/epfm2

Random drug, lie detector tests for Police Officers in Spain. http://www.trinidadexpress.com/news/Random-drug-lie-detector-tests-221734651.

LAPD body video cameras.

http://www.latimes.com/local/la-me-dodgers-lapd-20131002,0,4237783.story

The honest, brave officers with integrity deserve better.

And so does the public….

Wherever you are in the World, in your own jurisdictions, in your own capacity, you can

do something, anything, just one thing. And make a difference.

Break the code. Break the culture.

Supercop says:

Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime”

But they do contain evidence of a crime. The suspect is guilty of assaulting the officer’s nightstick with his cranium. But you assholes only care about the “rights” of violent thugs. You don’t give a fuck about the safety of innocent nightsticks that are just doing their job.

Jules says:

What we need

The only way to stop this is for the information to immediately go non-local, real time or near real time.

What we need is an app with a panic button that automatically streams the footage to the cloud as it’s recording. This will stop when every camera angle is already stored in the cloud before the police ever get around to trying to confiscate phones at the scene, and when police know that confiscating phones will do nothing but send a record to the cloud documenting the officer trying to confiscate the phone.

We should also have a bluetooth device people can wear hidden on their person that accepts a stream from the panic-button ap, so that if the phone is confiscated before it can get the whole stream out to the cloud, the “hidden on body” device has the clip. If the panic button is activated and the clip doesn’t immediately get from the phone to the cloud with a confirmation code returned, the bluetooth device should have sufficient “cheap burner phone” functionality to immediately send its file to central storage on its own.

People should have the app and should know to switch to recording officers trying to collect phones from others as soon as the officers start trying.

If the app could somehow have functionality that improves its ability to capture identifying information on the officer, that would be good. I’m not sure of the best way to do that. Ideally, as soon as information goes to the cloud from “panic button,” on the cloud end a secondary program should execute that begins using any identifying information from the video stream to “tag” the video with the officer’s identity.

A GPS tag from the phone gives the physical location of the incident. Facial recognition and otherwise “smart” software could use location to help weed possible matches, could tag with badge number, any unit insignia, could possibly analyze the video to make a close estimate of officer features like height, weight, hair and eye color, race. If a badge number or nametag is captured.

The idea being that if “panic button” has been triggered, the event is of sufficient concern to positively associate the officer’s identity with his actions.

If such a system had been in place in St. Louis, the family would be more likely to get justice. And I don’t mean the vigilante kind. I believe the community immediately knowing the officer’s identity, which is PUBLIC, not private, information, would have made it far more likely that charges would be brought against him and he’d face a jury to account for his actions.

Regardless of the officer’s innocence or guilt of crime in the St. Louis case, the family at bare minimum deserves that it be a jury, and not some faceless bureaucrat, who decides that innocence or guilt.

Uriel-238 (profile) says:

Copsblock apps

A friend of mine pointed me here for a number of apps that will record and send to the cloud very quickly (in one case to your hotbox account), which makes seizing the phone useless when it comes to seizing the footage.

I suppose if your phone is not encrypted they might be able to find the footage in your hotbox and delete it.

Anyway, they might be useful.

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