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Protecting the Right to Record Police Brutality

Those who have filmed such incidents say they are facing retribution from the cops. Activists say it's time for lawmakers to step in.

New York Daily News/Getty Images

More than two years after Staten Island police wrestled Eric Garner to the ground in a deadly chokehold, only one man involved in the incident is set to serve jail time: 24-year-old Ramsey Orta. He was the one who filmed the now notorious cell phone video in which Garner gasps, “I can’t breathe” moments before going limp in front of a neighborhood convenience store.

Since then, Orta has had several clashes with law enforcement in the New York City borough, including arrests for drug and weapons charges. He was also charged with interfering with an arrest by getting too close with his camera while recording, which he was doing as part of his work with CopWatch, a New York-based organization that aims to enforce police accountability. He agreed to a plea deal for a gun possession charge and a set of drug charges, fearing a lengthier sentence if he took his case to trial. He began a four-year prison sentence on Monday.

But Orta’s lawyer Andrew Plasse believes his client has been unduly punished in retribution for bringing the circumstances surrounding Garner’s death to light. “The message of the Richmond County District Attorney is this: Don’t expose the brutality of the Police in Richmond County because if you do, you will face more criminal charges than you can handle,” Plasse wrote in a September 26 letter to New York Attorney General Eric Schneiderman, referring to the county that encompasses Staten Island. “As it is, [Orta’s] First Amendment rights, and other Civil Rights were trampled on … because he had the courage to film and show the world the video he took of the homicide of Eric Garner.”

The killing of Eric Garner—and more recently, Keith Lamont Scott, Tamir Rice, Walter Scott, Alton Sterling, and Philando Castile—might never have attracted national scrutiny were it not for video recordings of their fatal interactions with police, posted online by civilian witnesses using camera phones. Yet even as Staten Island officers and their colleagues in law enforcement across the country have adopted body cameras in the interest of transparency, many have continued to push back on the public’s use of cellphones to record police encounters.

The recording of police encounters is stuck in a legal gray area. Federal appeals courts in Boston and Chicago have affirmed that civilians have a right to lawfully film the police under the First Amendment. But advocates point out that court precedent has not been enough to protect citizens in other parts of the country from being harassed, intimidated, or asked to hand over their recording devices by police. “Whether deliberately orchestrated or manifested in the frantic knee-jerk reactions of police departments, these actions reveal an intention to suppress footage, intimidate witnesses, control narratives, obscure brutality, and punish those who expose the mortal threat paid civil servants pose to black and brown civilians,” wrote members of the International Documentary Association, which promotes the interests of non-fiction filmmakers, in an August petition to the Justice Department.

In Orta’s case, the harassment spanned months, according to his lawyer. “Orta’s personal life was turned upside down as police constantly harassed him at his home without any justification,” Plasse told Schneiderman. He cited instances in which law enforcement shined lights into Orta’s windows at night, taunted him on the street, and arrested his family members. Plasse claimed Staten Island authorities prejudiced the jury in his case by illegally releasing to the media information about his convictions as a youthful offender, and kept him in jail despite the fact that he posted cash bail.

During one of Orta’s arrests, officers allegedly approached him with their phones out. When he asked why they were filming him, one officer replied, “Because you filmed us.” Plasse said Orta felt he had no choice but to move out of Staten Island, far from the reach of a police force he believed had turned against him.

A Staten Island grand jury in December 2014 decided not to indict any police officers in connection to the Eric Garner case. But Plasse thinks evidence of policing harassing Orta might at least be cause to re-introduce the Garner case to a grand jury—even if Orta’s own sentence cannot be shortened.

Orta is not the only shooting witness who claims to have been targeted by police. Chris LeDay, who recorded the Alton Sterling video in Baton Rouge, believes police arrested him unjustly in June as a retaliatory measure intended to threaten his job security. Abdullah Muflahi, the owner of the store where Sterling was killed, also filmed the shooting; he was arrested immediately and asked to hand over his cell phone and store surveillance footage. Diamond Reynolds, Philando Castile’s fiancée, was arrested in July while documenting the moments after a Minnesota police officer gunned down her significant other. And in April 2015, Kevin Moore was arrested after filming Baltimore officers assaulting Freddie Gray, who subsequently died of spinal injuries in a paddy wagon. Moore claims police have since ridden past his home with their phones out.

In response, there is a growing movement to codify the right to record in legislation and in law enforcement handbooks and training. The Black Lives Matter group Campaign Zero, led by activist DeRay McKesson, made protecting the right to record one of ten policy pillars that it submitted to the Obama administration’s Task Force on 21st Century Policing last year. Samuel Sinyangwe, the group’s policy analyst, told me that state politicians should introduce legislation explicitly giving citizens the right to sue the police for interfering with their right to record. He recommended that states subsidize those citizens’ attorney fees on top of whatever damages they may win in court. And he suggested that the president use the bully pulpit to clarify that police departments need to enforce the right to record, and that the Justice Department should cut funding for any department that fails to do so. “Awareness alone isn’t sufficient,” Sinyangwe said. “What we need is accountability.”

Sinyangwe cited Colorado and California as states that have made strides in protecting the right to record. In May 2015, Colorado passed legislation making it illegal to interfere with civilians lawfully recording the police, part of an 11-part package aimed at rebuilding trust between the police and the community. Three months later, California Governor Jerry Brown signed similar legislation, clarifying a First Amendment right to record the police, without fear of intimidation or arrest, while they are on duty in a public space. New York City followed suit this July with a “Right to Know” bill, which the NYPD assimilated internally. And in the wake of the September shooting of Keith Lamont Scott in Charlotte, the Congressional Black Caucus began pushing the Justice Department to investigate preventative measures against gun violence at the federal level, including clarifying citizens’ right to record.

Many police, however, continue to fight such reforms. The Colorado package faced heavy opposition in the state senate and, in the first year of implementation, there was “anxiety about legislators trying to tell officers how to do their job,” Denver state representative Angela Williams, who wrote the bill, told The New Republic. Additionally, cities or jurisdictions that employ police officers are reluctant to take on more liability as civilian recordings raise the stakes for police misconduct, said Jack Lerner, a law professor at the University of California, Irvine.

But Joel Porter—a lawyer for Abdullah Muflahi, the man who filmed Alton Sterling’s shooting—has little sympathy for police who feel increasingly beleaguered by public scrutiny. “Police officers are probably the most powerful people in our society,” Porter told me. “They can take your life and your liberty. With that kind of broad rights and powers, they should be held equally accountable.”