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Straight Talk: Videotaping Police

Last month, Brian Kelly of Carlisle, Pa., was riding with a friend when the car he was in was pulled over by a local police officer. Kelly, an amateur videographer, had his video camera with him and decided to record the traffic stop.

The officer who pulled over the vehicle saw the camera and demanded Kelly hand it over. Kelly obliged. Soon after, six more police officers pulled up. They arrested Kelly on charges of violating an outdated Pennsylvania wiretapping law that forbids audio recordings of any second party without their permission. In this case, that party was the police officer.

Kelly was charged with a felony, spent 26 hours in jail, and faces up to 10 years in prison. All for merely recording a police officer, a public servant, while he was on the job.

There's been a rash of arrests of late for videotaping police, and it's a disturbing development. Last year, Massachusetts Attorney General Tom Reilly threatened Internet activist Mary T. Jean with arrest and felony prosecution for posting a video to her website of state police swarming a home and arresting a man without a warrant.

Michael Gannon of New Hampshire was also arrested on felony wiretapping charges last year after recording a police officer who was being verbally abusive on his
doorstep. Photojournalist Carlos Miller was arrested in February of this year after taking pictures of on-duty police officers in Miami.

And Philadelphia student Neftaly Cruz was arrested last year after he took pictures of a drug bust with his cell phone.

As noted, police are public servants, paid with taxpayer dollars. Not only that, but they're given extraordinary power and authority we don't give to other public servants: They're armed; they can make arrests; they're allowed to break the very laws they're paid to enforce; they can use lethal force for reasons other than self-defense; and, of course, the police are permitted to videotape us
without our consent.

It's critical that we retain the right to record, videotape or photograph the police while they're on duty. Not only for symbolic reasons (when agents of the state can confiscate evidence of their own wrongdoing, you're treading on seriously perilous ground), but as an important check on police excesses. In the age of YouTube, video of police misconduct captured
by private citizens can have an enormous impact.

Consider Eugene Siler. In 2005, the Campbell County, Tenn., man was confronted by five sheriff's deputies who (they say) suspected him of drug activity. Siler's wife surreptitiously switched on a tape recorder when the police officers came inside. Over the next hour, Siler was
mercilessly beaten and tortured by the officers, who were demanding he confess to drug activity. Siler was poor, illiterate and had a nonviolent criminal record. Without that recording, it's unlikely
anyone would have believed his account of the torture over the word of five sheriff's deputies.

Earlier this year, Iraq war veteran Elio Carrion was shot three times at near-point-blank range by San Bernardino, Calif., deputy Ivory Webb. Carrion was lying on the ground and was unarmed. Video of the arrest and shooting, however, was captured by bystander Jose Louis Valdez. Webb since has been fired from the police department and is on trial on charges of attempted voluntary manslaughter and assault with a firearm. The video is the key piece of evidence in his trial.

While it's possible that police and prosecutors would have believed Carrion's version of events over Webb's even without the video, it seems unlikely. Webb is the first officer to be indicted in the history of the San Bernardino Police Department.

These are merely recent examples. There are more.

Many police departments across the country recently have added roof-mounted cameras to patrol cars that record traffic all stops.

This is a positive development, and protects not just citizens from rogue cops, but cops from citizens who make frivolous complaints. I've argued in the past that other police activities should be recorded, particularly SWAT-style raids that involve forced entry into private homes.

But it shouldn't end there. Legislators need to repeal laws explicitly forbidding the recording, photographing or videotaping of police officers. And to the extent that more generalized wiretapping laws meant for the general public also apply to the police, they should be amended to allow private citizens to record officers while they're on duty.

This isn't to say police don't have the same privacy rights as everyone else. They do — when they aren't on duty, in possession of a sidearm and carrying with them the authority that
comes with enforcing the law of the state.

But while they're on duty, they serve the public. And the public, their employer, should have
every right to keep them accountable.

Radley Balko is a senior editor with Reason magazine. He publishes the weblog, TheAgitator.com.

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