First, to police officers far and wide, you have our sympathy.
Your job is one of the toughest society has to offer.
You deal day in and day out with people the rest of us go out of our way to avoid.
Sometimes you get hurt. Occasionally, as a state trooper in Pennsylvania did just last week, you sacrifice your life in the line of duty.
And now this: Whenever you step out of your cruiser to deal with a traffic stop, an arrest, or a disturbance of the peace, there’s a pretty good chance some bystander is going to record the whole thing on a cellphone camera.
Obnoxious? If the videos now piling up on YouTube are any indication, some of these citizen watchdogs are that and then some.
Irritating? Let’s just say that if someone pointed a video camera in my face whenever I did my job, I’d undoubtedly get a little testy from time to time.
Illegal? Much as some officers might claim it is, they’re wrong. And therein lies a problem for the Portland Police Department.
“As long as (police) get to carry guns, I feel like members of the public should get to carry cellphones,” said Zach Heiden, legal director of the American Civil Liberties Union of Maine, in an interview Wednesday.
Heiden is representing Jill Walker and Sabatino Scattoloni, both of Bar Harbor, in a lawsuit the couple filed this week against veteran Portland police Sgt. Benjamin Noyes.
They allege that Noyes unlawfully arrested them for obstructing government administration after they recorded portions of a late-night traffic stop in downtown Portland on May 25. In doing so, Walker and Scattoloni also claim, Noyes violated their First Amendment right to document the incident.
There’s plenty of he-said-they-said to sort out here when this civil case gets to trial – assuming it ever gets that far.
Noyes claims in his arrest report that a fellow officer told him Walker and Scattoloni “were cheering” while the woman he’d pulled over closed her window on the officer’s arm. The couple flat out deny it.
Noyes claims that Walker and Scattoloni refused his order to leave the area. Walker, in an interview Thursday, said Noyes didn’t give them time to even consider complying with his order before he slapped the handcuffs on them.
Noyes claims that Walker and Scattoloni “advised they did not subscribe to our form of government” as they were carted off to the Cumberland County Jail. The couple insist they never said such a thing – although even if they did, its relevance to their arrest would be nil.
The misdemeanor charges against Walker and Scattoloni, like so many that arise from similar circumstances, were eventually dropped. But the lawsuit, along with an internal investigation by the Portland Police Department, goes on.
Meanwhile, the case law continues to mount in support of the impromptu recording of police – even if they order the camera turned off.
“Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation,” wrote federal Judge Kermit Lipez of the 1st District Court of Appeals in a 2011 ruling involving a man who recorded police as they arrested another man on Boston Common. “In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.”
In another decision handed down last May – this one involving a woman who recorded a traffic stop in New Hampshire – Lipez went on to concede that police can order someone to turn off the camera and move on “for legitimate safety reasons.” However, Lipez ruled, such an order “may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.”
In the case of Walker and Scattoloni, there’s no evidence they were interfering with anything.
Walker said they first got out their cellphones and started recording from across the street after they noticed three police cruisers and five officers surrounding a woman in a vehicle not far from the Holiday Inn by the Bay, to which the couple were returning after an evening out in the Old Port.
Why the cellphones?
“Something didn’t feel right about it,” Walker said. “If that were me (in the car) and I was surrounded by five very intimidating officers, I would want somebody to witness that.”
Their already-low cellphone batteries eventually ran out, Walker recalled. But she and Scattoloni kept on watching – they say from a distance of about 25 feet; Noyes claims it was “within 12-15 feet.”
Other than to reply no when two other officers asked them if they knew the woman in the car, Walker said, “we didn’t say anything to each other, we didn’t say anything to them. We weren’t trying to create a stir. We were trying really just to witness what was going on.”
Enter Noyes, who reported that he approached the couple and “told them they had two seconds to move across the street or be arrested.”
“I said, ‘Why?’ And (Scattoloni) said, ‘We’re just standing here,'” Walker said. The next thing they knew, they were handcuffed and sitting in the backs of separate police cruisers en route to the Cumberland County Jail.
“It didn’t even feel like it was two seconds,” Walker said. “It was very fast.”
So was the dropping of all charges when the case went to court in June. (Curiously, the woman who was initially pulled over – police say she sideswiped an unmarked cruiser – was not prosecuted, either.)
Walker said her and Scattoloni’s lawsuit is about more than the $620 in bail fees and attorney costs that their first-ever arrest cost them. (They hired their own lawyer before the ACLU of Maine got involved.)
“It’s definitely a matter of principle,” she said. “We really would like more public awareness that this does happen and it’s very unfortunate when it does. It’s not lawful.”
At the same time, irksome as they may be to police, the cellphones and video cameras only multiply as they become cheaper, sharper and easier to operate.
“Changes in technology and society have made the lines between private citizen and journalists exceedingly difficult to draw,” Lipez wrote in his 2011 ruling. “The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cellphone or digital camera rather than a traditional film crew.”
Back in 1968, at the tumultuous Democratic National Convention in Chicago, a phalanx of network television cameras rolled as police beat anti-war protesters bloody with nightsticks and loaded them into paddy wagons. Well aware of the bright TV lights suddenly turned on them, the protesters made history with the chant, “The whole world is watching! The whole world is watching!”
Welcome to the 21st century, men and women in blue.
The whole world is recording.
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