1 / 30

CRIMINALIZATION OF COPWATCHING PANEL

CRIMINALIZATION OF COPWATCHING PANEL. Mario Cerame righttorecord.org, Inc. mario@righttorecord.org Annie Paradise Berkeley Copwatch. ABOUT ME. Student at Quinnipiac University School of Law Forthcoming article on the right to record police in Quinnipiac Law Review

quinta
Download Presentation

CRIMINALIZATION OF COPWATCHING PANEL

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. CRIMINALIZATION OF COPWATCHING PANEL Mario Cerame righttorecord.org, Inc. mario@righttorecord.org Annie ParadiseBerkeley Copwatch

  2. ABOUT ME Student at Quinnipiac University School of Law Forthcoming article on the right to record police in Quinnipiac Law Review Starting up righttorecord.org Work with ACLU of Connecticut Constitutional Studies Intern for the Cato Institute Helping on several lawsuits

  3. IMPORTANT This is not legal advice I am not a lawyer I am not representing you Before taking any legal actions you need to talk to a real attorney I mean it--this is not just a wink and a nod

  4. SMALL NOTE This presentation will be available at www.righttorecord.org within a few days.

  5. GOALS FOR TODAY Understand concerns of police and civilian recorders Understand the legal mechanisms authorities in the U.S. use to intimidate, deter, criminalize recording police Understand the basic legal challenges to vindicate the right

  6. OFFICERS’ SIDE Safety Efficiency Offense

  7. OFFICERS’ SIDE: SAFETY • Dangerous person may create an advantage to hurt an officer or someone else • Too close • Oblique angles or from behind • Increases stress, and possibly stress related mistakes • Using a cell-phone to bring more people onto a scene

  8. OFFICERS’ SIDE: EFFICIENCY Limited point of view may skew an investigation or prosecution; hinder the truth from coming out Recorder may alter the recording A witness or suspect may not want to be recorded; may delay an investigation Police may need subterfuge for duties Recorder is distracted, may need to answer questions Requires training of officers: money

  9. OFFICERS’ SIDE: OFFENSE A presumption that officer is doing something wrong Recording without consent exerts power over a person, offense, disrespect Taken out of context, limited perspective No one wants to be the next YouTube or Facebook joke

  10. RECORDERS’ SIDE Provides valuable evidence Helps deter misconduct Direct civic participation Improve police legitimacy

  11. RECORDERS’ SIDE: VALUABLE EVIDENCE Aid to memory More points of view, not fewer, will offer a better perspective of what happened Protects police and civilians Combats “blue code” and “testilying” Supports credibility of civilians in the courtroom

  12. RECORDERS’ SIDE: DETER MISCONDUCT Just knowing that they are being watched incentivizes police to be on their best behavior

  13. RECORDERS’ SIDE: CIVIC PARTICIPATION Watchdog groups expose police wrongdoing to the public Part of collective identity Facilitates discussion of public affairs

  14. RECORDERS’ SIDE:POLICE LEGITIMACY Always looks bad for police to punish civilian recorders Seems fundamentally unfair People feel that it’s retaliation “What are you hiding” sense

  15. REVIEW • Police Side: • Safety • Efficiency • Offense • Recorders’ Side: • Provides valuable evidence • Helps deter misconduct • Direct civic participation • Improves police legitimacy

  16. CRIMINLIZING COPWATCHING:THE TWO MAJOR SCHEMES Wiretapping statutes “Catch-all” criminal statutes

  17. WIRETAPPING STATUTES • Tend to be less common • Usually a felony charge • Penalties are severe and can make headlines • Mainly Illinois, Massachusetts • Defeated in Maryland, Florida, Pennsylvania • Still charged sometimes in Florida, Pennsylvania, other states • Officers get away with it due to “Qualifies Immunity” • May extend to other states in future

  18. “CATCH-ALL” STATUTES TWO “FAMILIES” • Breach of Peace type statutes • Obstruction of Justice type statutes • Very widespread • Tend to be misdemeanors, or even less • Penalties tend to be small • Defendants tend to plea to lesser charges • Less likely to make headlines unless the facts are egregious or the news cycle is slow

  19. BREACH OF PEACE TYPE • Supposedly the recorder is interfering with “enjoyment” of public property • Traditionally, breaking the king’s peace • Examples: • Disorderly conduct • Creating a public disturbance • Blocking a public way • Refusing to “move on” • Public nuisance • Harassment

  20. OBSTRUCTON OF JUSTICE TYPE • Supposedly the recorder is hindering an officer from doing his or her job properly • Examples • Obstruction of justice • Obstruction of government administration • Interfering with an investigation • Interfering with a peace officer

  21. RANDOM TURTLE

  22. LEGAL CHALLENGES (U.S.) Argue statutes don’t apply Argue constitution supersedes the statute

  23. STATUTES DON’T APPLY • Look closely at mental element: • specific intent, • knowingly, • purposefully • Physical element: results • Any terms defined in other statutes? • Any “judicial gloss” from previous cases?

  24. CONSTITUTIONAL CHALLENGES Free speech and press Statutes are void for vagueness, overbroad Equal Protection Assembly Petition Right to present a defense Independent state grounds

  25. FREE SPEECH AND PRESS Two Step: • Is the right protected? • Pure speech • Ancillary to speech • Institutional press argument • Can Police infringe on the right anyhow? • Prior restraint or criminalizing publication • Three part analysis: • Content neutral • Content-based • Viewpoint-based

  26. VOID FOR VAGUENESS Only available at criminal stage to defendants No reasonable person would understand that the statute criminalized recording police Statute has a chilling effect “as-applied” Statute has a chilling effect on its face Results can be powerful and sweeping

  27. THE LONG SHOTS • Equal Protection • Treating a class of people differently for arbitrary or malicious reasons • Assembly • People can gather in the public space to express a perspective • Petition • Expressing grievances to a government official • Right to present a defense • The government cannot deny defendants access to evidence that could help them

  28. DOUBLE EDGED SWORD • The Carrot: 42 U.S.C. § 1988: attorneys’ fees • The Stick: Qualified Immunity • Is this “clearly established” law? • would a reasonable officer know that he violated someone’s civil right? • Big, big hurdle

  29. HOT SPOTS FOR LITIGATION • Illinois, ACLU v. Alvarez • Massachusetts, Glik • Pennsylvania • Florida • Maryland, Graber • (soon to add New York, Connecticut, New Jersey, D.C) • Trouble Spots: • New Hampshire, Oregon, Georgia

  30. MARIO CERAME www.righttorecord.org mario@righttorecord.org righttorecord.org, Inc. This PowerPoint presentation will be available on the blog within a few days. Also presenting Sunday in 2M72 at 9:00:How U.S. Civil Rights Litigation Works And How It Doesn’t

More Related