Department of Justice supports people's right to record the police

At the  2010 Preakness Stakes in Baltimore, Christopher Sharp of Howard County, Maryland, used his cellphone to record the police forcibly arresting a friend of his. They then forced him to surrender the cellphone and erased the recording (along with other personal recordings that Sharp had on his phone).

With assistance of the Maryland ACLU, Sharp sued in federal court for violations of his constitutional rights. The Civil Rights Division of the U.S. Department of Justice is now seeking to participate in the case, in support of people's right to record police actions that occur in public. This seems to be the first time that the Department of Justice has taken such a step. The Justice Department's court filing in the case, Sharp v. Baltimore City Police Department, is here.

It states:

"The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.....

"Federal courts have recognized that recording devices are a form of speech through which private citizens may gather and disseminate information of public concern, including the conduct of law enforcement officers. The First Circuit recently held in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that “[b]asic First Amendment principles” and federal case law “unambiguously” establish that private citizens possess “a constitutionally protected right to videotape police carrying out their duties.” Id. at 82. See Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing the “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct.”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing the “First Amendment right to film matters of public interest”); Robinson v. Fetterman, 378 F. Supp. 2d 534, 542 (E.D. Pa. 2005) (finding “no doubt that the free speech clause of the Constitution protected” plaintiff who videotaped officers because “[v]ideotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence”). The right to record police activity is limited only by “reasonable time, place, and manner restrictions.” Glik, 655 F.3d at 84; see Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (noting “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions,” and finding “insufficient case law to establish a right to videotape police officers during a traffic stop,” an “inherently dangerous situation[ ]”)......"

Furthermore:

"The Supreme Court has held that Fourth Amendment limitations on law enforcement officers’ authority to seize individuals’ property must be “scrupulously observed” when the item seized contains information protected by the First Amendment and “the basis for the seizure is disapproval of the message contained therein.” Walter v. United States, 447 U.S. 649, 655 (1980). This requirement that government officials closely adhere to the strictures of the warrant requirement when the item to be seized is protected by the First Amendment recognizes that the “[t]he Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Walter, 447 U.S. at 655 n.6; see also New York v. P.J. Video, Inc., 475 U.S. 868, 873 (1986) (“We have long recognized that the seizure of films or books on the basis of their content implicates First Amendment concerns not raised by other kinds of seizures.”).

"Indeed, the seizure of material protected by the First Amendment is a form of prior restraint – a long disfavored practice only permitted in limited circumstances not present here. The Supreme Court has recognized that “seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding.” Heller v. New York, 413 U.S. 483, 490 (1973). When material falls “arguably within First Amendment protection,” and officers’ warrantless seizure of that material “br[ings] to an abrupt halt an orderly and presumptively legitimate distribution or exhibition” of that material, the Fourth Amendment is violated. Roaden v. Kentucky, 413 U.S. 496, 503 (1973) (“Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.”). Such a seizure, which prohibits the dissemination of constitutionally protected information “presents essentially the same restraint on expression as the seizure of all the books in a bookstore.” Id. at 504. As described above, Defendants’ seizure and destruction of Mr. Sharp’s videos appears to have been based on the content of those videos and prevented their dissemination. These First Amendment concerns “require[] that the Fourth Amendment be applied with ‘scrupulous exactitude.’” Maryland v. Macon, 472 U.S. 463, 468 (1985)."

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Kudos to the Department of Justice for speaking up so forcefully in this instance on behalf of important individual rights.

More police violence against a photographer?

Per this account of Mannie Garcia, an experienced professional free-lance photographer, Montgomery County, Maryland police roughed him up, stole his camera's digital card, brought false charges against him, and lied against him court - just for trying to photograph their suspicious activity on the street. http://www.wusa9.com/news/article/185650/77/Mannie-Garcia-Of-Kensington-Md-Claims-He-Was-Roughed-Up-By-Montgomery-County-Police

It is clear that this a nation-wide phenomenon. In far too many places, police act in contempt of the Constitution, of the truth, and of basic concepts of justice. There needs to be accountability.

What may be most disturbing about Mr. Garcia's account is his description of a continuing pattern of harassment and intimidation by Montgomery County police, after he complained against them. This is rank police lawlessness. It is incompatible with life in a free society. This should not be happening in America.

Video recording police: First Circuit says it's a First Amendment right

Victory for the right to take videos of the police:  On August 26, 2011, the U.S. Court of Appeals for the First Circuit, in Boston, held that people have a clear First Amendment right to make video recordings of police making arrests in public places. The court's opinion (in .pdf format) is here. The website Gizmodo has an account of the dispute here.

The caption of the case is Glik v. Cunniffe.  Glik is himself a lawyer. According to his complaint, he saw three Boston police officers arresting a young man in the middle of Boston Common -- as public a public place as you can find. Glik thought that the police punched the man and were using excessive force. So, standing about 10 feet away, he began making a video and audio recording of the event with his cellphone. The police reacted by putting him in cuffs, too, and then pressing various charges including an alleged violation of a Massachusetts wiretapping statute.  All the charges were dismissed, and Glik then sued Cunniffe and the other arresting officers under federal civil rights law. The Court held that Glik was exercising his clearly established First Amendment rights in making the recording and that the arrest violated the Fourth Amendment.  On the basis of a number of Supreme Court decisions, the First Circuit found that the right to gather information by otherwise lawful means is  a clearly established the First Amendment right. The First Circuit itself and other federal courts had recognized this right in earlier cases involving the recording of public officials performing (or maybe misperforming) their duties in public. The First Circuit said:

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted, "[f]reedom of expression has particular significance with respect to government because '[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" First Nat'l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1035-36 (1991) (observing that "[t]he public has an interest in [the] responsible exercise" of the discretion granted police and prosecutors). Ensuring the public's right to gather information about their officials not only aids in the uncovering of abuses, see id. at 1034-35 (recognizing a core First Amendment interest in "the dissemination of information relating to alleged governmental misconduct"), but also may have a salutary effect on the functioning of government more generally, see Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986) (noting that "many governmental processes operate best under public scrutiny")."

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There are several other important points and wrinkles in the opinion. Some probably will interest only lawyers, but these, I think, should be important to everyone:  First, the court said that it did not matter that Glik was a private citizen and not a professional journalist. He still had this First Amendment right. In this connection, the court recognized that modern electronic devices can allow anyone to decide, even on the spur of the moment, to become a citizen-reporter on a blog or some other way.  (The court didn't specifically mention YouTube, but no doubt it was the sort of thing that they had in mind.) Second, the court made no distinction between audio and video recording (Glik had done both) but seemed to give equal First Amendment protection to each. The court also did note that the officers, on the facts alleged, could not have reasonably believed that Glik was violating the state wiretapping law, because it prohibited only "secret" recordings, and Glik was recording in plain view of the officers. That's why they arrested him.

In the routinely cautious way that courts almost always act, the First Circuit said that on other facts -- maybe when recording the police actually interfered with their work in some way beyond the mere fact of the recording itself -- the outcome might be different.

Police vs. photographers (still more)

A report in the Long Beach Post shows that the police there have photographers directly in their sights. If I read this correctly - and I think I do - then Long Beach police are instructed that it is now within their power to detain any photographer that they catch taking pictures in a public place, when the individual officer thinks that the pictures lack an "apparent esthetic value."

The mind boggles. Along with all their other weighty responsibilities, the Long Beach police now must serve as art critics? What training will they receive to perform this new function?  A semester-long course on the history of photography and its place in art history in general? And so that photographers have fair notice -- in order to avoid getting pinched for what the police think is bad art -- will the police then publish lists of what is acceptable and what is not?  Will representational photography in the romantic tradition be allowed? But anything edgier or more abstract prohibited?  So that anyone trying that kind of photography -- never mind the long list of celebrated photographers who have specialized in it over the years -- should expect an arrest? I expect legal challenges, sooner rather than later.

Police Chief Jim McDonnell was apparently trying to be helpful with this clarification, that photographers may be detained when they are observed "not engaging in 'regular tourist behavior.'" So it seems that Long Beach resident Sander Wolff, the individual subject of the article, got out of line -- his conduct diverged from "regular tourist behavior" -- when he took pictures of a refinery. The article shows one of Mr. Wolff's photos that got him in trouble. It's the kind of photograph of an industrial scene that amateur and professional photographers have been taking for over a century. It would be easy to find similar photographs at any major art gallery. Maybe a "regular tourist" would give the scene a pass, but so far as I know, this kind of photography never before has been treated as criminally suspicious. Not in the United States of America at any rate, the home of the free.

A Washington Post editorial of July 28, 2011, on the Justin Wolfe case:

A deserved rebuke in Prince William murder case

By Editorial, Published: July 28

PAUL B. EBERT has earned a reputation as a tough but fair prosecutor over his four- decade career as Prince William County commonwealth’s attorney. But something apparently went terribly wrong with Mr. Ebert’s handling of the case of Justin Michael Wolfe.
Mr. Wolfe is an admitted marijuana dealer in Northern Virginia who was sentenced to death in 2002 for ordering the murder of a drug associate. In a detailed, 57-page opinion handed down on July 12, Judge Raymond A. Jackson of the U.S. District Court for the Eastern District of Virginia excoriated Mr. Ebert and his office for multiple infractions that he says prevented Mr. Wolfe from refuting the murder charges.
Judge Jackson noted that Mr. Ebert and his office withheld from the defense information about others who may have had motive to target the victim. Mr. Ebert and his colleagues also brought together prosecution witnesses and allowed them to smooth over inconsistencies in their testimony. The prosecutors failed on multiple occasions to live up to their obligations to disclose to the defense that government witnesses had contradicted each other or had changed their stories.
These failures were discovered only after Mr. Wolfe’s lawyers from King & Spalding, the University of Virginia’s Innocence Project Clinic and the Virginia Capital Representation Resources Center persuaded a court to force Mr. Ebert and his office to turn over all of their files.
The actions by Mr. Ebert and his office were so egregious that Judge Jackson threw out the murder conviction and death sentence against Mr. Wolfe. And he concluded that Mr. Ebert and a top deputy, Richard A. Conway, violated Virginia legal ethics rules that require prosecutors to “make timely disclosure” of evidence “that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.”
During a hearing before Judge Jackson, Mr. Ebert was asked why his office did not have open-file discovery, which requires prosecutors to turn over to the defense all of the evidence gathered during an investigation. “I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided,” Mr. Ebert responded.
Fabricate? The judge in this instance rightly took Mr. Ebert to task. “Essentially, in an effort to ensure that no defense would be ‘fabricated,’ [Mr. Ebert and Mr. Conway’s] actions served to deprive [Mr. Wolfe] of any substantive defense in a case where his life would rest on the jury’s verdict,” Judge Jackson wrote. “The Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process.” The Virginia State Bar, which polices lawyers in the state, should determine whether Mr. Ebert and Mr. Conway committed violations that require disciplinary action.
Virginia plans to appeal Judge Jackson’s ruling. But rather than merely fight an adverse decision, Attorney General Ken Cuccinelli II should assess whether there is a problem with how Mr. Ebert and his office apply the legally mandated requirement to turn over exculpatory material.

Suppressed evidence (cont.)

Again on the Casey Anthony trial: I find this amazing and shocking, and I believe that it should be shocking, whatever one thinks of the outcome of the trial. Innocent or guilty, Anthony was entitled to a fair trial. She was entitled to have the prosecution follow the rules that are necessary for a fair trial.

Yet according to a software engineer who worked with the prosecution, it did not. Prosecutors tried to convince the jury that Anthony murdered her child with chloroform and in support of this theory presented evidence that she visited a website about chloroform 84 times. Yet the software engineer who so testified now says that he learned during the trial that his earlier conclusion was in error and that Anthony had visited that site only once (and also that it was an innocent-seeming site with historical information regarding chloroform in the 1800s). He says that he promptly notified the prosecutors and Florida law enforcement agents. Yet the jury was never informed of this potentially important information.

UPDATE: It's getting more confusing. That software engineer, John Bradley, now asserts that he never accused Florida authorities of any impropriety.   Yet he seems not to be retracting his factual assertion, which he had made on his own website, that he notified those authorities that Casey searched for "chloroform" just once, not 84 times as the jury was told. He has, however, taken the assertions off the website.

Suppressed evidence

You know a man can't help but feel bad
When he's doing time for someone else...

-- Lightnin' Hopkins, "Penitentiary Blues"

It has been the law of the land since the 1963 Supreme Court case of Brady v. Maryland that the prosecution in a criminal case must turn over to the defense evidence in the government's possession that is favorable to the defendant. (A 2004 report of the Federal Judicial Center provides an overview of the meaning of Brady as it has been interpreted over time as well as a survey of rules in federal and state courts across the U.S. regarding prosecutors' duties under Brady.)

Yet now, nearly half a century later, favorable evidence still is sometimes suppressed, even in the most serious cases when the defendant may be sentenced to death if he/she is convicted. It still happens, even years after a defendant's conviction at trial, that powerfully exculpatory evidence turns up -- which the government knew about all the time but never disclosed. Some of these discoveries occur by accident, by blind luck. Sometimes they happen only if determined lawyers and investigators can overcome stubborn, unyielding resistance by the prosecution. I think that you have to wonder:  How many defendants have been convicted despite powerfully exculpatory evidence that was never disclosed to them and that never sees the light of day?

No one who has looked seriously and honestly at the issue can doubt the fact that innocent people have been found guilty -- and some of them have been sentenced to die -- because of the government's suppression of evidence that could have shown that they were innocent.

I want to consider in a series of blog posts two recent, important cases regarding different aspects of Brady.  One is a case that the Supreme Court decided in its most recent term, in March 2011, Connick v. Thompson. John Thompson was convicted of murder and sentenced to die for a killing in New Orleans. He spent 18 years in prison, over a decade of that time in solitary conditions on death row, and came very close to execution. Then, by what seems like a fortuity -- an accident -- a piece of good luck -- an investigator working for Thompson and the lawyers then representing him discovered what had been hiding in the prosecutors' files for all those years, a mass of evidence, including blood evidence, that Thompson was innocent and that the principal witness that the prosecution had used to convict him was himself the murderer. Even after the uncovering of this evidence, New Orleans prosecutors brought him to trial again, but this time it took the jury little more than a half an hour to find Thompson not guilty.

Thompson then sued under federal civil rights law for damages for what amounted to the destruction of his life because of the violation of his constitutional rights. The case from the beginning to its end at the Supreme Court shows the tricky and complex ways that our civil rights laws work and, sometimes, fail to work.

The second case, Wolfe v. Clarke, involves Justin M. Wolfe, who like Thompson was convicted of murder and sentenced to die, in Virginia.  On July 12, 2011, a U.S. District Judge in Norfolk granted Wolfe's petition for a writ of habeas corpus.  The judge ruled that Wolfe's conviction and sentence were unconstitutional because the prosecutor had withheld favorable evidence, in violation of Brady, and also because the prosecution had knowingly presented false testimony against him in violation of the closely related doctrine that the Supreme Court established in a 1972 case, Giglio v. United States.

As in Thompson's first trial, when he was convicted of murder, the principal witness against Wolfe was himself the actual killer. The witness, Owen Barber, admitted this fact, but he then went on to testify that he committed the murder on Wolfe's instructions.

It turned out that there was substantial evidence, never revealed to the defense, that Barber was lying; that the police planted the suggestion to Barber that he had been working for Wolfe; that they threatened Barber with a death sentence unless he blamed Wolfe; that the prosecution had gone to great lengths to coordinate and shape the testimony of its witnesses in order to convict Wolfe; and that Barber in fact had admitted to killing the victim alone.

The case is noteworthy, as recounted in the judge's opinion, for the lengths to which the prosecution seems to have gone to sell a false story to the jury about the murder. It is also noteworthy for how the facts eventually got out.  Wolfe was fortunate in receiving very effective and determined lawyering from a team of attorneys from the firm of King & Spalding and the Virginia Capital Representation Resource Center. They obtained for Wolfe what is a rarity these days in federal habeas corpus cases challenging convictions in state court:  a fresh evidentiary hearing in federal court. At that hearing, Wolfe's attorneys were able to call and question witnesses in order to show how Wolfe's conviction had been obtained. It was that evidence that persuaded the federal judge that Wolfe had received a fundamentally unfair trial in state court.

Wolfe's case is not yet over. The prosecutors can and likely will appeal to the U.S. Court of Appeals for the Fourth Circuit.

Incidentally, for reasons that I do not know, the District Court's opinion was not available when I last checked on the court's website, as it should have been.  Wolfe's attorneys very kindly provided it to me.