Blue Byline

A cop's perspective of the news and South Sound matters

Pitts’ video rant requires a rethink

Post by Brian O'Neill on Nov. 30, 2011 at 10:06 pm with 24 Comments »
December 1, 2011 7:28 am

As much as I admire him, my relationship with Leonard Pitts is…complex.

Leonard Pitts, Jr/ The News Tribune

Pitts, a Pulitzer Prize-winning columnist whose syndicated column appears regularly in the Trib, is a master of the short essay and a champion of many righteous causes.

That doesn’t mean I agree with everything he writes, of course. Our relationship–if you call forking over money to hear him speak at UPS a relationship–has more to do with craft and less to do with ideology.

In last Sunday’s column (11/27), Pitts denounced the infamous police pepper-spraying incident at UC Davis. Others, including myself, have likewise nibbled at that tempting bait. For opinionators such as us, these images were the visual wellsprings from which a fountain of discussion flowed (though Pitts would have used a better metaphor and charged by the word).

But Pitts didn’t stop there. The main thrust of this piece was that police officers shoud stop confiscating video devices of citizens, and citizens should take a lot more video. His evident distrust of police has been an oft revisited theme in his columns, and this one shows a similar slant: “Police after all, are prone to the same instinct to close ranks and cover nether regions as anyone else.”

Though I take exception to Pitts’ comment, my disagreement does not end there.

On many occasions I have watched bystanders at traumatic scenes yank out their phones and start recording the action. Believe it or not, most of my colleagues aren’t concerned about turning on the news after work and seeing their faces on the screen.  Remaining objective is the key to a long career, a fact we are told when hired and reminded of during every training scenario.

So the professional issue is, as even Pitts admits, rather moot.

There are problems, however. For one, Washington state requires two party consent to recordings. This is the reason for an advisement, “You’re being audio and video recorded” when a person is contacted by a police officer with a car camera. The camera is there for evidentiary reasons, to be sure, but it does not help the cop who oversteps his or her boundaries.

Video also has the nasty habit of not telling the entire story. It is extremely important for police officers to recognize the shortcomings in our visual input. Two video clips come to mind. The first shows a group of people tossing a ball and the viewer is asked to count the number of tosses. After counting, the video is replayed in slow motion and the result is that only one or two people out of ten noticed a man in a gorilla suit walk through the group.

The second video shows a short clip of a subject being assaulted. After a brief discussion of this apparent crime, the video is aired at length, and new camera angles are added. The end result? The unexplainable, horrendous action compiled into a five second video burst was suddenly an easily justifiable and plausible outcome.

None of this is meant to discredit video, which can be an excellent tool in many situations. Professional sports has already placed a great deal of trust, not to mention capital, into video replays. But in Pitts’ scenarios, there are rarely any high definition cameras, operated by technical professionals, grabbing all the action from multiple angles. Instead, the videos involved in most of the widely viewed scenes involving protesters, street crime or police activity involve hand held phones. This amounts to one camera angle, one viewpoint and an unspecific time frame.

Without a fair and reasoned approach, it is far too easy to manipulate public perception with video, whether from the camera of a patrol car or the cellphone of a protester. At its best it can provide an undeniable insight to one component of an event, while at worst it may provide an unfair portrayal of everyone involved. This idea is lost in the heady rush of Pitts’ eloquent and passionate appeal.

But for those who heed Pitts’ call to keep the video pressure on police, just use some common sense. Be sensitive to barriers and respectful of others. That is the moral to this story.

Leave a comment Comments → 24
  1. UnbiasedReporter says:

    Citizens Have Right to Videotape Police Arrests, 1st Circuit Rules

    As stories have surfaced detailing arrests based solely on the recording of law enforcement, there has been some concern over whether or not it is legal to videotape police.

    Though a number of states (FL, IL, MA, MD, NH) have used wiretapping and eavesdropping statutes to answer this question in the negative, last week’s decision by the First Circuit in Glik v. Cunniffe came to a different conclusion.

    Honing in on a group of cases throughout the varying circuits, the court found that there is a “constitutionally protected right to videotape police carrying out their duties in public.”

    This case was brought by attorney Simon Glik, who was charged with illegal wiretapping after he stood 10 feet away and used a cell phone to record Boston police officers beating a suspect.

    Denying the officers’ request for immunity, the court pointed out that videotaping police falls squarely within the First Amendment’s interest in “protecting and promoting the free discussion of governmental affairs.”

    A significant amount of prior jurisprudence recognizes both the right to gather news via legal means and to film officials and matters of public interest.

    However, it must be noted that the right to videotape police is not absolute.

    As with all protected First Amendment rights, persons filming law enforcement are subject to reasonable time, place and manner restrictions.

    On a basic level, this means that, in the First Circuit, it is legal to videotape police so long as one does not interfere with the carrying out official duties or engage in harassment. So if you decide to film, exercise a little common sense and discretion.

    http://blogs.findlaw.com/decided/2011/08/citizens-have-right-to-videotape-police-arrests-1st-circuit-rules.html

  2. Brian O'Neill says:

    Thanks for the excellent input. This issue is a matter of trust for government officials, and does require sound judgment on the part of cops and citizens alike. Unfortunately, we have seen a few examples of the wrong response from both.

  3. I agree that recordings, just like any piece of “evidence,” can be misused out of context. However, if more people would videotape, then we would have different angles and less success in manipulating the results. So, therefore the advice by Pitts cuts both ways. It can help police show they acted in a professional manner if , in fact, they did.

    I am a huge supporter of the police. That is my general mindset. However, there is so much evidence of individual bad behavior that I for one do not want to get into a “he said, she said” discussion in court or if I presented a complaint about an inappropriate officer.

    I know this is not a legal forum, but a question and a comment about your statement and unbiasedReporter’s comment. The 1st Circuit ruling does not apply to anybody except people living in the 1st Circuit unless the Supreme Court gives it a blessing. If the law in Washington is as you state, Brian, then do you know of any legal test it has taken and the results?

    In one class I took in Washington State for newly-appointed state government officials, I was told that audio recordings must have consent, but video-only or still photography in a public space where confidentiality is not expected does not require consent.

    I have been on two juries in Tacoma where recordings were used. In court they didn’t show any permission being asked. In one case, the TV show COPS had done the filming, and it was used in court. They must have had permission of the police, but they certainly didn’t ask permission of the criminal (he was convicted) as he was running away and being apprehended. It was sound and video. (No theme music, however).

  4. tuddo, did the convicted criminal’s defense attorney actually bring up the legality of the videotape during the trial?

    Anyway, this might cover it:

    In Washington, you can satisfy the consent requirement by “announc[ing] to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted,” so long as this announcement is also recorded. Wash. Rev. Code § 9.73.030(3). In addition, an employee of a “regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full-time or contractual or part-time basis” can establish the consent of the party recorded even without an announcement if he or she uses a recording or transmitting device that is “readily apparent or obvious to the speakers.” Wash. Rev. Code § 9.73.030(4).

    Source: http://www.citmedialaw.org/legal-guide/washington/washington-recording-law

    Google is a mighty tool.

  5. Chippert says:

    “There are problems, however. For one, Washington state requires two party consent to recordings.”

    Well, yes and no… If it were that cut and dry then there would be no surveillance cameras in stores, no traffic cameras on our roads, no red-light and speed cameras taking our cash out of our wallets. There would be no journalists out there capturing “news” footage or taking still shots. There would be no professional photographers at races and other events taking photos to sell back to you while retaining the copyright.

    I personally think that citizens recording the actions of law enforcement actions is a VERY GOOD THING. If you, as an LEO, are doing something that you don’t want to face in court, on TV or wherever then maybe you should not be doing it. It is not a privacy thing. In your job as a PUBLIC official you should not have any expectation of privacy when you are in PUBLIC performing your duties.

  6. Chippert says:

    Oh, and regarding the pepper spray incident, according to Megyn Kelly of Fox News, pepper spray is a “food product essentially” so I guess the officer was just seasoning the crowd…

  7. Gandalf, yes, the video was an issue as well in a former trial of the same person that ended as a hung jury. COPS could only find the edited TV show version and the judge would not allow it. At this third trial, many years after the first two had hung juries, the prosecutor brought the case again precisely because COPS had found the unedited version so that both parties could view the entire thing. It was allowed over the defense objections. Of course, that background was not known to the jury until after the trial. It was also one of the first cases in Tacoma that a police dog found and apprehended a suspect. It was very interesting as a juror.

    The “press” provisions of the Washington statute are at the crux of a lot of legal disputes now that bloggers, independent journalists, free-lancers, etc all claim freedom of the press. I am a part-time independent journalist who sells photos and stories to various print and on-line publications. Am I covered by the protection if everyone can see my camera? Is a general citizen who sells a video to a bloggger covered? Such questions on vague laws make the fortunes of the lawyers.

  8. If you read further along in the link I provided, it does discuss your situation, or the blogosphere in general. Basically, I believe it said you’re not covered.

    Chippert, as far as store video cameras, traffic red light cameras, etc, please be aware the recording consent issue is AUDIO, not video. Video and still photography is not an issue in public, it’s the audio recorded conversation (wiretapping) that’s in question for consent. Camera footage that lack audio recording are perfectly legal.

  9. Gandalf, what you provided was a link that talked about recording private conversations, not public ones. Is a cop yelling to a group of people in a public place to be considered private? Or is is a private conversation when a cop is reading the rights to a suspect?

    I think Brian is misapplying that law, too, and that is why I asked if he knew of any court cases or legal decisions that supported his contentions about needing consent to photograph or audio record public actions.

    In regards to photography, there are no restrictions on anyone, press or not, taking photographs of anything and anybody in public places where privacy is not an issue. In bathrooms, no photos. In public places, people have no expectation of privacy. As an extreme example, State v. Glas, the Washington Supreme Court even held that the state’s photography laws could not prohibit taking up-skirt photographs in public places.

  10. Brian O'Neill says:

    Given past comments on this column, I am not surprised at the degree of knowledge regarding recorded conversations. I don’t see much reason to weigh in except to clarify a few points.

    First, I did not differentiate between video and audio recordings because the technology (cell phones, video cameras) typically put one together with the other.

    The second point is in reference to public vs. private conversations. The admissibility of recorded or witnessed statements in a criminal trial requires a special judicial process known as a 3.5 hearing. Some of the questions that a judge may consider include: did the speaker expect privacy? was the speaker addressing an individual or a crowd? was the speaker advised of his right to remain silent? was the speaker aware he was being recorded? From my perspective the bright line on these rulings is a bit fuzzy.

    And someone rightly mentioned that Washington is not covered by the First Circuit Court of Appeal’s decisions (Washington is part of the 9th Circuit out of San Francisco).

  11. UnbiasedReporter says:

    Date: 10-28-2004

    Case Style: Anthony L. Johnson v. W.J. Hawe, etc.

    Case Number: 03-35057

    Judge: Kim McLane Wardlaw,

    Court: United States Court of Appeals for the Ninth Circuit on appeal from the Western District of Washington

    The principles of Flora and its progeny were well established at the time of Johnson’s arrest. At the very least, these cases stand for the following two propositions: (1) “public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby [do not] enjoy a privacy interest which they may assert under the statute”; and (2) the Privacy Act may not be “transform[ed] . . . into a sword available for use against individuals by public officers acting in their official capacity.” Flora, 845 P.2d at 1357-58. Any reasonable officer should have understood these rules to preclude Johnson’s arrest under the circumstances. …

    http://www.morelaw.com/verdicts/case.asp?n=03-35057&s=WA&d=29071

  12. rivitman says:

    Hmm, a police officer that believes that case law established in one circuit court of appeals is invalid in another. So it goes to follow that absent a supreme court ruling, and decision rendered by any circuit court of appeal is invalid outside their territory.

    Interesting concept.

  13. rivitman, that’s the way our judicial system works.

    A lower court, or even an appeals court might cite a case from another district, or circuit as it is often called, as a persuasive argument, but it does not set a binding precedent for lower courts in any but the district where the ruling took place.

    In the same federal district as the appeals ruling, lower courts are required to abide by the appeals court ruling, even if they disagree. Lower courts in other districts don’t even have to pay attention to the other ruling.

    The Supreme Court sets binding precedent for all lower courts.

    For example, there is still a lot of confusion over the Bankruptcy law of 2005 because it is taking so long for cases to work their way through various appeals and the Supreme Court has not made many rulings that clarify issues. If you live in one part of the country a bankruptcy judge may be bound to make a totally different decision than in another part of the country because of appeal court decisions.

  14. smokey984 says:

    Gotta love an over-complex society where nobodys knows whats gonna happen next..

  15. BlaineCGarver says:

    I can’t imagine an expectation of privacy in a public setting.

  16. Brian O'Neill says:

    Then apparently you’ve never told a secret while standing on a street corner, Blaine. That would make you both discreet and unique.

  17. BlaineCGarver says:

    I certainly am both, Brian, but I digress. There are numerous situations in case law that people have No Expectation of privacy. Cops use that all the time to gather evidence. I’m pretty sure you knew what I meant.

  18. Earth_watch says:

    I’m late to this discussion so my thoughts may have already been expressed, but from just reading the column (not the comments, yet) here’s my initial response:

    I agree with some of what you say, Brian, except your conclusion isn’t logical.

    If one video tells one side of the story, then the best way to get the full story is to get as many videos from as many angles as possible. Just because one video only shows one perspective, it makes no sense to instead defer to a person’s statement (which are also only one-person’s viewpoint, after all, and even more subjective than video, at that).

    So, the facts you present for your argument seem to actually be supporting Pitt’s position.

    .

  19. Brian O'Neill says:

    Nowhere in this column, or in the subsequent comments, have I suggested that people should not videotape police officers on duty. To repeat myself, there are scenarios where that videotaping (with audio) may be a violation of our state law, just as there are scenarios where videotaping police activity may put one either in peril or in a position to obstruct that police activity. I have observed all of these, at one time or another. Aside from these concerns, I don’t find this exercise in our personal freedoms to be a major problem (annoying yes – problem, no).

    But one point was well made, Earthwatch. While one viewpoint may not tell the complete story (or even the true story), it may be a welcome addition to other versions added by other individuals. My main concern is that a five second video snippet–taken out of context from a poor angle–might be the only viewpoint to which the public has access. Given that, I have watched the uproar over easily justifiable incidents (some of which I witnessed first hand) explode into sensationalist excrement.

    Pitts’ column ignores this issue.

  20. In public is in public. In private is in private.
    Duh.

  21. Earth_watch says:

    What happened to the long comment which had posted just after my previous one? I saw it, but hadn’t had a chance to read it yet… came back to read it this morning, but now it’s gone…

  22. rivitman says:

    Earth_watch, my comment was deleted.

    Most cops are just fine with me. I like them, and tend to do as they instruct. But if I run into a bad one, and assert my rights, something bad is likely to happen. The presence of a camera is the only possible protection. We give police extraordinary power, but you don’t have to read between Brian’s words very much to get the overall thrust of his position which I interpret as, ‘take my picture at your own risk’.
    There is another post “awaiting moderation” posing several videos showing how police can react to being recorded. I will not re-post those links.

    Whoever modded me down can decide to let them go up, or not.

    In my workplace, there are surveillance cameras all over the place. Except the restrooms. It’s 100% legal, and should be no less for the police.

  23. Earth_watch says:

    Okay, Brian’s last post makes more sense, then, if it was replying to a comment which has since been removed.

    But, Brian, your latest comment says: “Nowhere in this column, or in the subsequent comments, have I suggested that people should not videotape police officers on duty.”

    Actually, that seems to be exactly what you were saying in your column, that you took “exception to” Pitt’s saying:
    “…that police officers should stop confiscating video devices of citizens, and citizens should take a lot more video…”

    If you’re now saying your “main concern is that a five-second video snippet (taken out of context from a poor angle) might be the only viewpoint to which the public has access” which may “explode into sensationalist excrement”… are you referring to the UCDavis clip that Pitt made mention of? I don’t think that pepper-spraying clip was edited creatively nor taken out of context. It simply showed what occurred.

    From having only skimmed the deleted comment, I believe the gist was that misinterpretation of laws is inappropriate as a columnist and inexcusable as a law enforcer… your suggesting we should dismiss and discourage video in favor of word statements may appear somewhat suspect…

    The gorilla example (used in the column) to discredit video actually instead support why video is a better tool for realistic replay. A person’s retelling of the scene would not include the gorilla, however the video replay would. No matter how many times the person was asked to retell their version, you can’t create a memory which isn’t there; however, that’s the beauty of unbiased video capturing a scene which can be then played back to show all the things a person may not have noticed in the actual moment. As the demonstration revealed, people didn’t see the gorilla in the first showing (and may have sworn under oath no gorilla was there… not that they’re lying, though, they truthfully didn’t see a gorilla) but the gorilla WAS there and a video replay proves it, and they see it the second time.

    So, it’s not that the video “didn’t tell the whole story”, it instead shows how limited a person is in recalling everything that happened right in front of them. Simply playing back the video (and this time pointing out the gorilla which had always been there) isn’t twisting the truth; that’s solidifying it. Even if a 5-second clip may not tell the whole story, a simple still-shot would still prove there was a gorilla in the scene whereas the person’s memory would not. Sure, some visual perspectives may be somewhat deceiving, but that’s where additional testimony, explanations and other video angles could assist.

    Regarding the audio aspect, you mentioned: “…did the speaker expect privacy?”

    As “UnBiasedReporter” and “Chippert” pointed out, police officers’ actions while on-duty in public are not private and they shouldn’t expect any defense as such. You’ve explained that police simply advise their suspects that they’re being recorded (but that’s not necessarily consent). The various rulings in the court cases mentioned are somewhat relevant, yet those ruling were for specific circumstances but weren’t de facto writing law, were they?

    So, I’m still not entirely clear about the law regarding recording audio in public, but (since we all agree that it’s legal to take photos and record video imagery in public) then it seems to everyone’s benefit to have as much imagery recorded as possible. So, turn the volume off, folks, but don’t be afraid to get out there and take photos and video. Maybe if everyone knew they were likely being photographed, things might just go a lot better…

    .

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