Officers Cite Nonexistent Law In Attempt To Prevent Citizen From Filming Them During A Traffic Stop

from the cf:-some-shit-we-made-up-at-that-other-stop dept

Fortunately for law enforcement officers (but not so much for lowly citizens), courts have routinely affirmed that officers don't need to know the laws they're enforcing to stay in the law enforcement business. No one expects cops to be legal scholars, but the least they could do is get a second opinion when they're faced with a situation where applicable laws may -- or just as frequently, may not -- exist.

We've seen nonexistent laws abused before. Most of the time, a perceived moving violation acts as the groundwork for a fishing expedition. This is fine, sayeth the courts. Other times, nonexistent laws are cited to shut down photographers or harass people otherwise minding their own business.

Texas law enforcement officers are notorious for this. They frequently -- and possibly willfully in some cases -- misread the state's failure to identify statute as meaning they're allowed to demand identification from anyone at any time. They could not possibly be more wrong.

The perfect storm of law enforcement beclownery occurs when they interact with someone who actually knows the law. The bluffing commences in a real-time display of "our word against yours," with officers assisting each other in collective ignorance because, if might makes right, then a united citation of nonexistent statutes by armed men is the rightest thing of all.

Too bad these officers pulled over a defense lawyer. In the officers' defense, they couldn't have possibly known this fact ahead of time. (h/t Adam Steinbaugh)

A Wilmington police sergeant is shown on video instructing a citizen who was pulled over for a traffic stop that he is not allowed to record the interaction due to a new state law prohibiting the recording of police interactions.

Shortly after that, a New Hanover County Sheriff's deputy agrees with the officer that there is a new state law. There is no such law in North Carolina.

The citizen was defense attorney Jesse Bright, who drives for Uber in his spare time. The cops arrested his passenger, then cited a nonexistent law in hopes of preventing him from recording the encounter.

The entire stop lasted more than 20 minutes, culminating in a drug dog sniff of the vehicle (in which the drug dog may or may not have alerted -- officers refused to tell Bright what this dog's alert looked like). The dog apparently gave the officers permission to search Bright's car. Nothing illegal was found. And the only people being evasive or disingenuous were the police officers, who answered Bright's direct questions vaguely or not at all.

Fortunately for Bright -- who will presumably be filing a civil rights lawsuit -- the entire dog-and-jackass show was recorded on his camera. Sure, some of the responding officers were wearing body cams, but it usually takes litigation (or the threat thereof) to liberate this footage. And, in many cases, what's turned over is incomplete, either due to redaction or mysteriously-malfunctioning/unactivated recording devices.

There are two raw recordings at WECT's site. The first is the Q&A session in which Bright is told he's violating a nonexistent recording law. The second shows the K-9 sniff and subsequent vehicle search.

On the bright side, the officers' employer isn't defending their actions.

Chief Ralph Evangelous issued the following statement Wednesday in response to the videos:

“Taking photographs and videos of people that are in plain sight including the police is your legal right. As a matter of fact we invite citizens to do so when they believe it is necessary. We believe that public videos help to protect the police as well as our citizens and provide critical information during police and citizen interaction.”

The WPD stated that each officer will be given this statement to read as well.

A sheriff's deputy was also on hand for the mini-debacle, but he has already been cleared by his agency. However, the sheriff's department also made it clear there is no law against recording officers.

Sheriff McMahon has viewed the Uber driver’s video and believes it is clear that Officers were incorrect in stating that it was illegal to record the encounter. Not only does the Sheriff agree that it is legal to record encounters, he invites citizens to do so. As a result, the Deputy involved has been counseled.

Additionally, in keeping with Sheriff McMahon’s practice of openness and transparency with the citizens that we serve, he has instructed his Staff to ensure that each Deputy has been provided with information about the citizen’s right to record encounters with law enforcement officers.

But for video, as they say. Bright's video of the encounter wasn't held up by red tape, angry union officials, poorly-written public records laws, department stonewalling or a plain old [FILE NOT FOUND] error. His was self-released expeditiously, providing an indisputable account of the events. This possibly explains the lack of law enforcement dissembling or statements insisting everyone should just wait until all the [favorable] facts are in.


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  • icon
    Ninja (profile), 13 Mar 2017 @ 7:55am

    Gotta love when they get high profile people without noticing it. Then it's all apologies and actions and no after-truth favorable facts later. But get your lowly average citizen arse in such encounters and that phone might have been broken right in the beginning. Bonus points if you are black, hispanic, poor or from some minority.

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 13 Mar 2017 @ 9:42am

    Ah, the Judge Dredd approach.

    Kinda surprised that officer avoided saying something to the effect of "I know the law because I am the law".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Mar 2017 @ 9:52am

    So what. The chief addressed the very easy "lied about the law" part of the outrage, big deal. He didn't seem to address the "civil rights? What is this 'civil rights' thing you're nattering on about?" problem. The police had no cause for a search other than Bright damaged their fragile masculinity because he got "uppity" and needed to be taught a lesson in obedience/humility/shutup.

    He's an Uber driver because he is paying off his student loan. I hope he does file a suit and it pays off those loans, it would be fitting.

    reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 13 Mar 2017 @ 9:54am

    This is what happens when the mall cop becomes a 'real' cop.

    reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 13 Mar 2017 @ 10:03am

    WPD/NHCS 404 error: Law not found.

    Unfortunately, we usually suffer from the preemptive and more egregious (and frequently unfixable) Rights Not Found error.

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 13 Mar 2017 @ 10:06am

    Is there any conesquences?

    Okay, sure, the officers might get a slap on the wrist or a write-up from the supervisor, but that's not punishment.
    And sure, the guy might sue, but the lawsuit will be covered by the police union. If the guy wins, the payment will be covered by tax-payer money.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Mar 2017 @ 11:22am

      Re: Is there any conesquences?

      When this wasn't even one of the more embarrassing cases of "officers don't need to know the law", what consequences were there to be?
      The article starts by linking stories where courts have said it's fine if officers don't know the law. This one didn't even make it to court, yet!

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 13 Mar 2017 @ 1:26pm

      Re: Is there any conesquences?

      People who either sue police departments or are highly critical of them tend to become targets of what we could call “blue vengeance”. A “one-off” embarassment such as this can be swept under the rug. An ongoing campaign of criticism or a lawsuit detailing deeper incompetency? Not so much.

      reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 13 Mar 2017 @ 10:18am

    "The WPD stated that each officer will be given this statement to read as well."

    It should be taped to the dashboard of every cruiser.

    reply to this | link to this | view in chronology ]

  • identicon
    Chris Brand, 13 Mar 2017 @ 11:21am

    Bizarre

    I still don't see how a court justified the idea that it's ok for cops not to know the law. I mean obviously they aren't lawyers, but what do we pay them for ? To enforce the law.

    It's like having parking enforcement people who don't know the meanings of road signs or parking meters. "Yes, you were legally parked, but you can't really expect Bob here to know that, now, can you ?"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Mar 2017 @ 11:41am

      Re: Bizarre

      Does not matter if they know the law or not because they are allowed to lie...

      If the don't know the law and just make shit up they are just telling a lie, which is perfectly fine...

      It is what is needed to keep you safe and because they have such a hard job...

      reply to this | link to this | view in chronology ]

    • icon
      sigalrm (profile), 13 Mar 2017 @ 11:43am

      Re: Bizarre

      "I still don't see how a court justified the idea that it's ok for cops not to know the law."

      Frankly? Because the law is too complex for any single person to understand.

      from http://apps.leg.wa.gov/rcw/ :

      Revised Code of Washington (RCW)
      The Revised Code of Washington (RCW) is the compilation of all permanent laws now in force. It is a collection of Session Laws (enacted by the Legislature, and signed by the Governor, or enacted via the initiative process), arranged by topic, with amendments added and repealed laws removed. It does not include temporary laws such as appropriations acts. The official version of the RCW is published by the Statute Law Committee and the Code Reviser.

      The RCW Index document - just the index - as of December 2016, is a 748 page PDF. It is single-spaced, uses a small (10 point)? font, and runs 3 columns per page. There are no blank pages that I noticed flipping through it.

      Those are just the state laws. Now, add in all of the County, City, and Tribal laws that a typical local LEO is expected to enforce, and you've built a system where officers can legitimately assume that anyone they're interacting with is breaking _some_ law.

      reply to this | link to this | view in chronology ]

      • icon
        sigalrm (profile), 13 Mar 2017 @ 12:02pm

        Re: Re: Bizarre

        Also, for everyone who's going to jump on the "but citizens don't get this benefit" diatribe:

        True. Citizens don't. Reality can suck at times. Society has to figure out how to deal with this, and it's not going to be easy.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 13 Mar 2017 @ 2:33pm

          Re: Re: Re: Bizarre

          True. Citizens don't. Reality can suck at times. Society has to figure out how to deal with this, and it's not going to be easy.

          Which immediately nullifies the excuse by highlighting a massive double-standard. If those tasked with enforcing the laws aren't expected to be able to know them, and are in fact better off the less they know, then holding the general public to a higher standard is beyond absurd.

          Glaring hypocrisy is not the sort of thing you want to base a legal system on, at least not if you want people to hold any respect whatsoever for it.

          reply to this | link to this | view in chronology ]

          • icon
            sigalrm (profile), 13 Mar 2017 @ 3:07pm

            Re: Re: Re: Re: Bizarre

            The double standard _should_ nullify it, yes, but in practice it doesn't.

            Again, assuming it's even possible to fix at this point, it won't be easy, or quick.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 13 Mar 2017 @ 3:27pm

              Re: Re: Re: Re: Re: Bizarre

              One idea to lessen the impact at least would be to toss out any charges or related charges based upon a non-existent law, while imposing a penalty against the one bringing it up, ranging from 'Take this course that covers what the law actually says' all the way up to fines or even firing for a particularly absurd case where there's real, demonstrable harm.

              It's not perfect, the accused still has to deal with the problems associated with being treated as though they'd broken a law, but it would provide incentive for the police to know what the law actually says before bringing it against someone, and at least stop the accused from suffering further harm.

              reply to this | link to this | view in chronology ]

              • icon
                sigalrm (profile), 13 Mar 2017 @ 3:53pm

                Re: Re: Re: Re: Re: Re: Bizarre

                That would be a reaonsable start.

                Also, removing clear-cut conflicts of interest on the governmental side (civil asset forfeiture, for-profit incarceration, re-election). If we want to throw people in prison, fine, but it's on society to pay for it, so maybe we should think about how many of our tax dollars we want going towards keeping each class of offender incarcerated.

                Something else that might be worth considering is requiring a jury trial, and disallowing plea-bargains (with an actual, funded guarantee of competent defense). Possibly throw in outright dismissal of charges with financial reparations to the defendant for certain classes of crime if the trial cannot be completed in X amount of time if the delays are on the State side.

                There are lots of things that could change, but none of them are workable in an era where an "honest politician" can be most readily defined as "one that stays bought".

                reply to this | link to this | view in chronology ]

          • icon
            mhajicek (profile), 14 Mar 2017 @ 8:39am

            Re: Re: Re: Re: Bizarre

            In this day and age, all officers should have instant access to the full body of the law. While the current state of the body of law prohibits anyone from knowing or understanding any significant portion of it, if an officer suspects that an act violates a law, the officer should be able to look it up in the cruiser or on an issued tablet to be certain. An officer should be allowed to hold a person just long enough to look up the law before selecting a specific statute that the officer is claiming the suspect violated. Expanding on this, it should be required that at least one specific statute be selected on the officer's computer before a ticket or fine can be issued or a person's condition be changed from "detained" to "arrested".

            reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 13 Mar 2017 @ 1:37pm

        Re: Re: Bizarre

        This is one of the reasons I promote sun-setting all laws, every 7 years.

        It will take the first 7 years to figure out which laws to keep.

        It will take the next 7 years to fix all the errors created in the first go through.

        It will take the next 7 years to make the laws comprehensive and sufficiently condensed to that they might get on to new business once in a while, since most of their time up to this point will be working on existing law, and passing budgets.

        After 21 years, along with the changes in the various legislatures, things will be in a position that is fairly stable, and requiring all law enforcement personnel to know all the laws they enforce will not be so burdensome.

        We probably need to get rid of political parties and paid lobbying along with the sunset laws in order for this to work.

        reply to this | link to this | view in chronology ]

        • icon
          mhajicek (profile), 14 Mar 2017 @ 8:42am

          Re: Re: Re: Bizarre

          I really do like that idea. Consider however that in around 21 years or so we'll be on the cusp of the technological singularity.

          reply to this | link to this | view in chronology ]

    • icon
      Eldakka (profile), 14 Mar 2017 @ 12:05am

      Re: Bizarre

      I still don't see how a court justified the idea that it's ok for cops not to know the law.

      That's not quite what the judgement said, it's a bit more nuanced than that.

      I had a bit of a read of it a while back after some links from here and with respect to another judgement (also noted here on TD) where a court didn't accept that the cops didn't know the law as an excuse. This apparent conflict got me reading a bit.

      This latter situation was to do with a stop in some state where the excuse for the stop was because the car didn't have a passenger-side side mirror. The states laws required cars to have a passenger-side mirror, however, the law explicitly stated that that regulation only applied to vehicles that were registered in that state and did not apply to out-of-state registered vehicles, such as the target of the stop. The cops said it was an honest mistake and they didn't know that. However the judge (may have been appeals) still tossed it out, and the results of the searches due to the stop, with reference to the Supreme Court decision that people say stated that "cops don't need to know the law" noting that that case did not apply.

      The gist of the discussion and ruling was that the Supreme Court case related to where an ambiguity can exist in the language of a statute and that ambiguity has been clarified or narrowed by common-law decisions in court. The cops aren't expected to be aware of all the subtle rulings, clarifications, precedents and so on that can alter or narrow the effect of a statute.

      However in the example case, there was no dependency on those sorts of rulings/situations, as the statute was plain and straightforward, no ambiguity, no precedent's to refer to.

      So "cops don't need to know the law" is too simplistic a summation of that Supreme Court case.

      In this incident being reported, the cops merely said it was illegal and made threats based on that, they didn't actually take any physical action - no arrest, no confiscation - to prevent the filming. It was used as intimidation, rather than as an excuse to arrest.

      And there are other precedents (probably more nuanced than I'm using here) that say that the police are allowed to lie to suspects. They can say "hey, what you just did is illegal and the minimum sentence for that is 3 years, but we'll forget about it if you tell us...". So them saying it is illegal to film them (when it isn't) in itself isn't illegal - although it should be.

      IMO deliberately misstating the law by a law officer or other officer of the court while acting in an official capacity should be illegal.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Mar 2017 @ 9:11am

      Re: Bizarre

      I still don't see how a court justified the idea that it's ok for cops not to know the law. I mean obviously they aren't lawyers, but what do we pay them for ? To enforce the law.

      Moreover, "ignorance of the law is no excuse" for the average person on the street. Only for cops.

      reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 13 Mar 2017 @ 11:56am

    Phantom Dog Alert - Old tech to be

    In the future, you will be pulled over because they will say that one of their drones smelled the odor of pot coming from your vehicle.

    Defense: Client had just encountered a skunk. Drone is not reliable informant.

    SCOTUS years later: We believe the drone, there is no evidence defendant ever encountered a skunk.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Mar 2017 @ 1:41pm

    K9 Alert Percent

    I think that the percent of K9 alerts vs actual items found NEEDS to be tracked and if the percentage for a dog is below a particular threshold, then the dog needs to be sent back for re-training. Then, if it is sent back for training too many times then it will have to be removed from service.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 13 Mar 2017 @ 1:42pm

    love THE IDEA THAT cops

    Its interesting in the past, that Justification of Police recording ANYTHING anywhere...Public or Private has been Held legal.

    But as a Citizen, its NOT legal..

    Public places are PUBLIC, recording as needed/wanted. Except for profit.
    Private recording is your OWN property..(generally)
    Even the Mall, and corps can RECORD anything happening on THEIR property.
    Must be WHY cops dont arrest people much at the Mall or in Corp offices..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Mar 2017 @ 11:32pm

    Did Jesse Bright ever file a civil lawsuit? I saw his video about the stop and he seemed to be defending the police and even said there are good reasons for them to lie if they need to catch a bad guy.

    So if in the end, if they had found something on someone else unrelated to the stop... it seems like Bright might be OK with that?

    reply to this | link to this | view in chronology ]


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