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 Andrew Rosado Shaw

From: Andrew Rosado Shaw, Our Duty in Light of the Law's Irrelevance: Police Brutality and Civilian Recordings, 20 Georgetown Journal on Poverty Law and Policy 161 (Fall, 2012) (232 Footnotes Omitted) (Student Note)


In the 1960s, the Black Panther Party for Self-Defense sent armed and uniformed citizen patrols through the ghettos of Oakland, California. These brazen young men, belts of bullets across their chests and shotguns in hand, marched to end the brutal abuse of the poor and minorities by the Oakland police. The same call to action was heard across the nation. Civil rights activists protested police brutality throughout the United States, demanding an end to hundreds of years of police culture that had willfully ignored, and even encouraged, widespread abuse.

Despite these protests, police violence persists. Decades later, in August of 1997, Haitian immigrant Abner Louima was brutally beaten and sodomized in the restroom of a Brooklyn police station by officers of the NYPD. He was hospitalized with numerous injuries, including a punctured bladder and severed colon. Shortly afterward, the perpetrating officer paraded through the station with the blood- and feces-stained instrument of his abuse, bragging of how he “took a man down tonight.” In blatant disregard for these inhuman acts, fellow officers not only failed to report the incident for weeks afterward, but only eventually did so under the pressure of a highly publicized investigation.

Fortunately, a new weapon has emerged--over 280 million U.S. citizens now carry cell phones. Most of these mobile phones are capable of producing video at a moment's notice --video that has proven invaluable in prosecuting police misconduct. The report of the Independent Commission of the Los Angeles Police Department investigating the vicious beating of Rodney King in 1991 explicitly acknowledged, “Even if there had been an investigation, our case-by-case review of the handling of over 700 complaints indicates that without the Holliday videotape the complaint might have been adjudged to be ‘not sustained,’ because the officers' version conflicted with the account by King and his two passengers.” The officers' conflicting account was, of course, a lie. The disturbing truth is that falsification is perhaps the most common form of police corruption, and the link between perjury and misconduct may be inevitable.

The willingness of some police officers to completely disregard the law does not end with falsified reports. Even as courts recognize that video surveillance of on-duty officers is “unambiguously” protected by “basic first amendment principles,” police have continued blatant attempts to prevent, suppress, or destroy video evidence. Because officers who disregard the law have already evinced their willingness to engage in the most savage brutality, it should come as no surprise that those officers are willing to engage in violence to prevent citizens from recording police brutality.

This Note hopes to reframe the conversation regarding the recording of police misconduct from its traditional focus on courtroom battles to the reality of the situation on the ground. It will first detail the history and development of police brutality in the United States, including traditional citizen oversight and the more radical responses prompted by pervasive abuse. It will then examine the effect of recent technological developments on prosecution, the settling of current law regulating civilian recordings in favor of First Amendment rights, and the utter disregard of these laws displayed by some police officers. Finally, it will look to social science to identify and understand the clear disparity between the law on the books and the law as applied. Oppression of those who use video cameras to challenge the prevailing power structure is rampant. We must view surveillance as a necessary exercise in civil disobedience and be prepared to endure its consequences; moreover, we must encourage and enable others to join the fight.


I. POLICE BRUTALITY AND CITIZEN OVERSIGHT

To properly understand the sweeping developments in citizen oversight that have occurred in recent decades, it is useful to understand the storied history of police brutality that produced them. Police departments have been plagued by a culture which not only supports, but actively facilitates the inhumane treatment of suspects. The roots of police brutality in the United States span across centuries and have continually targeted poor and minority populations. Well-documented and rampant brutality throughout the 19th and 20th centuries eventually led to the emergence of citizen oversight in two forms: state-sanctioned complaint review boards and the considerably more radical approach of militant community organizations.


A. An Entrenched Culture

The depraved abuse of Abner Louima spotlighted a culture which government authority figures have refused to recognize. Nonetheless, police brutality has long remained a reality for the poor and minorities. The primary targets of police violence in nineteenth century New York City were “young, working-class citizens from poorer ethnic neighborhoods ... as they still are today.” An 1881 New York Times article, A Brute in Police Uniform, provides an account of an officer approaching John McDonald as he sat outside his home on a hot night. When McDonald understandably refused the officer's arbitrary order to return inside his home, he was brutally beaten with a heavy club. Like Rodney King and many other victims of police brutality, McDonald was subsequently arrested and incarcerated after enduring this injustice. The next day in court, McDonald's clothes were covered in blood and his face was “one mass of cuts and bruises.”

This incident was by no means isolated. The New York Times alone reported more than 270 cases of police brutality between 1865 and 1894. It apparently required very little to warrant a beating, as seventy-five percent or more of those cases involved misdemeanors, and numerous cases resulted in no charges at all. In fact, only three percent involved major felonies. Over ninety percent of these cases occurred in public, primarily in poor immigrant neighborhoods. Some of the brutality proved fatal; nine percent of victims died during or shortly after the incident. These statistics indicate that “physical violence was an accepted police practice that did not require an arrest or ‘cover charge’ to legitimize it. The public nature of most of these incidents likewise suggests that clubbing was a common and accepted tactic among police.”

This situation was largely the product of close ties between police and corrupt political administrations of the time. The relationship “tended to produce a self-perpetuating culture of violence.” Strong-arm tactics employed to combat rampant crime even won approval from some segments of the public, because they found considerable success in dispersing gangs by “beating senseless” every known gang member in the area. Further, New York's government did not appear to be an exception to the rule. Government officials from nearly every American city employed similar tactics, operating in conjunction with powerful neighborhood bosses to create state-sanctioned monopolies on violence.

Circumstances in the South were even worse. The Civil War left wide disparities between the landowning upper class and newly freed slaves. The Republican Party aligned itself with Black voters and relied on the occupying Union military to quell dissent. The Democratic Party fed on the negative sentiment this created and ingratiated itself with the old guard of the South, including disenfranchised Confederate soldiers, plantation owners, and other former slaveholders. This tendency lent political legitimacy to prevailing xenophobic sentiments, and, as a result, police in the southern U.S. became entwined with racist vigilante movements like the Ku Klux Klan. The line between state action and the actions of vigilante squads quickly blurred. Local police forces often sympathized, were complicit, or actively participated in the atrocities. Both the police and the Ku Klux Klan have deep roots in an entrenched Southern tradition, the slave patrol. In the Reconstruction era:

Southern whites were forced to adopt laws and policing methods that appeared racially unbiased, but [that] relied upon practices derived from slave patrols ... [T]he more random and ruthless aspects of slave patrolling passed into the hands of vigilante groups like the Klan ... [M]eanwhile, policemen in Southern towns continued to carry out those aspects of urban slave patrolling that appeared race-neutral.

Racial tensions mounted in northern cities as well. A series of riots, beginning with the Tenderloin riot in 1900, fanned the flames of racial prejudices between the primarily Irish police force and the rapidly expanding black community in New York City. Officers during this period openly assaulted black civilians; the police chief even “gave the men ‘a night off’ to ‘teach the niggers a lesson.”According to the chief, “[t]he men appreciate [d] it.” Other growing communities of racial minorities were targeted as well, including Jewish, Italian, and Chinese residents. Increased persecution gave rise to dissatisfaction with the police administration, and organizations like the Citizens' Protective League (CPL) sprang up in response. These organizations demanded that corrupt police officials be held accountable for their actions: “[a]ny attempt by the [politically]-dominated police department to investigate itself, [reformers] argued, was doomed to failure.” Although they were short-lived, these organizations laid the groundwork for permanent entities like the American Jewish Committee (AJC) and the National Association for the Advancement of Colored People (NAACP). The defense leagues found success in quelling the riots, but they failed to address the commonplace police brutality afflicting poor and minority civilians.



B. Traditional Citizen Oversight

Over the next several decades, progressive reformers fought corrupt political establishments like New York's Tammany Hall throughout the country. Nevertheless, police brutality remained a serious and pervasive problem. Officers continued to “freely beat citizens on the streets, knowing they would rarely if ever be punished for doing so.” In the 1920s, the seeds of change were sown when the idea of government-sanctioned citizen oversight of law enforcement took hold. It was initially a radical idea and found support only among a small group of civil liberties activists. Nonetheless, in 1948, the first official civilian review board sprang into existence in Washington, D.C.--the Complaint Review Board. Unfortunately, it was a weak and ineffective organization, more notable for its historical significance than for its accomplishments. It would be followed by the Police Advisory Board (PAB) in Philadelphia in 1958. Philadelphia's PAB was a more effective agency, but still handled few cases and had “minimal impact” on police-community relations.

The effort demanding citizen oversight did not gain real traction until the 1960s, during which it found an ideological home alongside the civil rights movement. Civil rights activists protested police misconduct in nearly every city in the United States, frequently demanding the hiring of more African-American officers and the creation of civilian review boards. The most significant response was generated in New York City in 1966, when the mayor of the city of New York added four non-officer members to the existing all-police Civilian Complaint Review Board (CCRB), giving the board a four to three civilian majority. Reaction from police rank-and-file was swift. They sponsored a referendum in November of that same year which abolished the CCRB entirely. Similar setbacks were experienced in Philadelphia, where the mayor allowed the PAB to lapse into nonexistence. Despite earlier fervent advocacy, citizen oversight was in dire straits by the end of the decade.

Civilian review boards experienced a resurgence in the 1970s, which saw the establishment of boards in Kansas City, Missouri; Berkeley, California; and Detroit, Michigan. By 1980, there were roughly thirteen agencies, and by 2000, there were over one hundred. Some of these boards were met with considerable hostility in their early years. For example, the San Francisco Office of Citizen Complaints was established in 1982, but “faced a combination of bitter opposition from the police union and indifferent support from the mayor's office for many years. It finally established an effective program of activities in the mid-1990s.” From the 1990s through the present day, citizen oversight has continued to rapidly develop. Numerous cities have established independent civilian review boards and police auditors, some of which are given broad license to investigate any and all aspects of police operations.


C. A Radical Approach

Despite these recent advances, many were not content with the slow progress of state-sanctioned citizen oversight. In the 1960s, as the cacophony of calls for traditional civilian review boards met with political intransigence, radical groups found a more immediate solution. One of the more famous, or perhaps infamous, of these groups is the Black Panther Party. The Black Panthers instituted a program in which armed and uniformed members took to the streets of Oakland, California to monitor police activities. Co-founder of the Black Panther Party, Huey Newton, explained, “We hoped that by raising encounters to a higher level, by patrolling the police with arms, we would see a change in their behavior.” The primary goal of these patrols was to counter police brutality in black communities through surveillance and confrontation. Bobby Seale, who co-founded the Black Panther Party with Newton, stated:

We have to defend ourselves against [the police] because they are breaking down our doors, shooting black brothers on the streets, and brutalizing sisters on the head [sic]. [They] are wearing guns mostly to intimidate the people from forming organizations to really get our basic political desires and needs answered. The power structures use the fascist police against people moving for freedom and liberation. It keeps our people divided, but the [armed patrol] program will be what we unite the people around and [use] to teach our people self-defense.

The Black Panthers were not alone in radical action. Militant Puerto Rican civil rights activists formed the Young Lords Party of East Harlem in New York City. This group was motivated by police brutality, dilapidated housing, and inequality of access and engaged in attention grabbing acts of protest throughout East Harlem. Active in the late 1960s and early 1970s, the Young Lords Party piled garbage across Third Avenue and set it on fire to block traffic. They occupied the First Spanish Methodist Church, established a free breakfast program, seized hospital equipment and transported it to impoverished areas, and traveled through neighborhoods testing for lead paint poisoning and tuberculosis.


Although both of these organizations have long since disbanded, in no small part due to internal discord fostered by the FBI program COINTELPRO, a comparable movement known as the Nation of Islam survives and continues similar practices to this day. The Nation of Islam is a controversial militant black Islamic group founded in 1930 and most famous for the thoughts and actions of its civil rights era leaders, Elijah Muhammad and Malcolm X. Under its current leader, Louis Farrakhan, the Nation dispatched hundreds of unarmed black men in suits and bow ties to quell gun violence on the streets of Chicago in July 2012. Ignoring Farrakhan's history of anti-Semitic remarks, Chicago's first Jewish mayor and former Chief of Staff to President Barack Obama, Rahm Emanuel, welcomed the actions of the Nation. Alderman Carrie Austin appealed to the organization to patrol her ward as well. The organization has been active in other cities too; street patrols by a group with close ties to the Nation of Islam were part of a 2008 crime-fighting initiative organized by the city of Miami. While these patrols are justified broadly as attempts to neutralize gun violence, an inspection of Farrakhan's recent speeches indicates the strong possibility that the targeted gun violence originates not only from civilians, but from police:

I want Black youth to hear this message, because police authorities are the same today as they were during slavery. In fact, this is how policing began. Police were formed to catch runaway slaves, bring them back to their masters and make examples of them to throw fear into other slaves. It's the same today. Police authorities are trained to kill, as well as to protect. But where Black people are concerned, police legitimize their mob attacks under the name of ‘back up.’ Police back up is often no different than the lynch mobs 100 years ago. The killing of our people, shooting them with many bullets when one would have done the job. And then, that deliberative body which is to discuss the brutal murder of our people by looking into the facts, comes away calling it ‘justifiable homicide.’


II. THROUGH THE MODERN DAY

The recent progress of technology has provided a means of protecting our communities that is much safer and arguably more effective than armed civilian patrols--the cell phone. We now have a tool that produces the strongest possible evidence of police brutality and is available at a moment's notice to the majority of the U.S. population. Some might expect that those most at risk of police brutality--the poor--cannot afford this modern convenience. However, studies have shown that households below the poverty line rely exclusively on cell phones at a much higher rate than their more wealthy counterparts. Cellular phones “have become more affordable. And the barrier to owning one is lower with pay-as-you-go plans.” In the face of video evidence, it is likely significantly more difficult for complaint review boards and juries to exonerate officers from meritorious claims. Unfortunately, as with the advent of complaint review boards, the backlash against this development has been strong and swift. Police departments have taken to arresting and charging citizen activists under clearly misapplied wiretapping statutes. Even in jurisdictions that unequivocally provide for legal surveillance of police, officers have displayed a willingness to prevent or destroy the resulting evidence and to arrest the civilians behind cameras on other frivolous charges. This has occurred even in violation of direct orders from superior officers.


A. Technological Advances

Technology has advanced at an exponential rate in recent years, and these advancements have had a substantial effect on the ability of the citizenry to effectively monitor and control the type of police misconduct protested by the Black Panthers, Young Lords, and Nation of Islam. There are now more than 280 million cell phone users in the United States, the majority of whom can use their phones to record video quickly and easily. This video evidence bolsters civilian ability to successfully prosecute police misconduct.

Consequently, the populations most vulnerable to police brutality have found themselves newly empowered. Even in countries in which individuals experience far greater levels of poverty than individuals in the U.S., cell phone use and technology as a whole has thrived. The Hmong villagers in Northwest Vietnam have access to internet cafes, but live in medieval farmhouses. Nearly thirty percent of Haitians own cell phones; reporters spoke with a farmer there whose list of possessions included a shack, a hard-dirt field, two mango trees, and a mobile phone. According to Amanda Girdner, program manager of a New York-based non-profit that helps to bring mobile phones to Africa's rural poor, “[y]ou can walk in the middle of a rural village in Rwanda and use a mobile phone to pay at a recharging station to recharge LED lights.” In the United States, a study by the National Center for Health Statistics found that adults living in poverty use cell phones at a roughly nineteen percent greater rate than those with higher incomes. In this new fight against police brutality, the poor find themselves, for once, well-armed.

Predictably, video sharing websites like YouTube now host tens of thousands of videos alleging police misconduct. Footage posted of excessive force by officers in response to the Occupy Wall Street protests has been reported on by numerous major news organizations including The Atlantic, The New York Times, CBS, CNN, and MSNBC. Although these videos are some of the most famous, they are far from the worst. A thirty-minute video emerged in 2011 showing the killing of Kelly Thomas, a homeless and mentally ill man suspected of breaking into cars. In the truly disturbing video, six officers threaten and then beat Thomas with fists, a baton, and the butt of a stun gun while he repeatedly apologizes, insists that he cannot breathe, and pleads for his absent father. Thomas subsequently died of a crushed windpipe. Spectators at trial left the courtroom in disgust and the judge paused the video to warn those who could not stomach its content to leave. The video formed the key evidence in charging one of the officers with second degree murder.

Another widely circulated video shows an NYPD officer, Patrick Pogan, violently shoving a bicyclist, Christopher Long, to the ground apparently without provocation during a Critical Mass bike ride in 2008. The incident is significant because Pogan was subsequently convicted of felony charges of filing a false criminal complaint against Long. The complaint included the assertion that Long knocked Officer Pogan to the ground by intentionally running into him with his bicycle, an assertion blatantly contradicted by the video. If Rodney King's beating can be considered instructive, legal recourse would have been nearly impossible in the absence of a bystander's video.

Due to the “he said, she said” nature of prosecuting police misconduct, video evidence can be dispositive in pursuing complaints. In Los Angeles, “[t]he Christopher Commission found that only forty-two of 2152 allegations of excessive force [against the LAPD] were sustained between 1986 and 1990, or less than two percent.” Without corroborating evidence, juries heavily favor police testimony over that of a suspected criminal. This truth is unfortunate for the prospective plaintiff because, as exemplified by the charges filed against Officer Pogan, some officers are quite willing to lie to cover their illegal actions, even under oath and penalty of criminal sanctions. Regarding the unrecorded February 2012 shooting of teenager Trayvon Martin by neighborhood watch volunteer George Zimmerman, local police chief Billy Lee stated that there is “no evidence to contradict Zimmerman's claim of self-defense.” In the absence of video, he is likely correct. Fortunately for the disaffected, cases against law enforcement officers for use of excessive force or other tactics which violate civil rights have increased twenty-five percent between 2001 and 2007, compared to the preceding seven years. During the same time period, the Department of Justice has won fifty-three percent more convictions. These statistics correlate with an increase of over 100 million cell phone subscribers, a fact which is likely not coincidental. The phenomenon has not gone unnoticed by police; a number of departments have requested that Google remove videos alleging police brutality from its website YouTube.


B. The Misuse of Wiretapping Statutes

Wiretapping statutes, often called eavesdropping or surveillance statutes, have erroneously been used in some states to prosecute those who record police officers, resulting in felony charges carrying potential prison sentences of over a decade. Essentially, the existing divide between states boils down to whether all parties or only one party to a conversation must consent to being recorded for it to be permitted by law. Worse yet, surreptitious recording of police misconduct by an uninvolved third party (like George Holliday's video of Rodney King) is most likely to be considered illegal, as no party has given prior consent. The federal government and the vast majority of states require only one party's consent, but twelve all-party states buck this trend. Nevertheless, ten of those twelve all-party states have an “expectation of privacy” provision to their laws which courts have ruled prevent them from applying to on-duty police officers. Massachusetts and Illinois stand alone in maintaining the illegality of recording on-duty officers by rejecting the “expectation of privacy” requirement.

At first blush, wiretapping statutes might seem irrelevant to recording police misconduct. The vast majority of this recording is being done on personal cell phones, which falls outside the traditional definition of wiretapping entirely. However, these statutes have, in some circumstances, been broadly interpreted to include any kind of recording, including those generated by a mobile phone. Video recording by itself rarely falls within the purview of these statutes, but because cell phones almost always make a corresponding audio recording, officers have distorted the law in an attempt to prevent surveillance in general. In states which require both parties to consent to recording, a police officer must therefore specifically permit you to record her actions. This circumstance is exceedingly unlikely if that officer is in the process of violating a civilian's civil rights.

Numerous cases concerning all-party states have now concluded in favor of the First Amendment right to record police. Christopher Drew, a sixty-year-old artist and teacher, and Tiawanda Moore, a twenty-year-old who was sexually assaulted by an officer during questioning, were both arrested in Illinois under an eavesdropping statute for recording on-duty police officers. They faced up to fifteen years on Class-1 felony charges. Drew used a digital recorder to capture his 2009 arrest for selling art without a permit. Moore used her Blackberry to record Internal Affairs investigators who allegedly discouraged her from filing a sexual assault complaint. Both were eventually acquitted, and a juror in the Moore trial called it, “a waste of time.” Simon Glik, an attorney in Massachusetts, recorded three officers in the Boston Commons as they arrested a young man. The officers asked if Glik's mobile phone was recording audio, and when he answered that it was, they arrested him for violating the state's wiretapping law. The charges were dismissed, and Glik eventually filed a lawsuit claiming his First Amendment rights were violated. The resulting settlement required the city to pay Glik $170,000 for his damages and legal fees.

The Federal Courts of Appeals have uniformly resolved this discrepancy in favor of First Amendment rights, holding that such applications of state wiretapping laws are unconstitutional. In ACLU v. Alvarez, the Seventh Circuit explained, “Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks.” The First Circuit used more forceful language in ruling on Glik's case: “[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”

Even law enforcement agencies have joined the chorus of voices denouncing the misapplication of wiretapping laws. The United States Department of Justice (“USDOJ”) has recently issued a statement recognizing the conclusions of the U.S. Courts of Appeals. With regard to Christopher Sharp v. Baltimore City Police Department, the USDOJ's Civil Rights Division sent a letter to the Baltimore Police Department's Office of Legal Affairs which stated:

[I]t is the United States' position that any resolution to Mr. Sharp's claims for injunctive relief should include policy and training requirements that are consistent with the important First, Fourth[,] and Fourteenth Amendment rights at stake when individuals record police officers in the public discharge of their duties .... Policies should affirmatively set forth the contours of individuals' First Amendment right to observe and record police officers engaged in the public discharge of their duties. Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.

Additionally, Police Chief Cathy Lanier of Washington, D.C.'s Metropolitan Police Department (MPD) recently issued a strikingly similar order which said, in part:

The Metropolitan Police Department (MPD) recognizes that members of the general public have a First Amendment right to video record, photograph, and/or audio record MPD members while MPD members are conducting official business or while acting in an official capacity in any public space, unless such recordings interfere with police activity.

The tide of legal scholarship is strongly in favor of First Amendment rights, and the few advocates in favor of using state wiretapping laws to curb surveillance of on-duty officers have essentially lost what was always a losing battle.


C. The Law's Irrelevance

“If we're going to catch these guys, fuck the Constitution, fuck the Bill of Rights, fuck them, fuck you, fuck everybody.”

- Anonymous Officer

The key oversight in the current legal discourse regarding surveillance of police is that very few officers who are willing to engage in brutality actually care about the current legal discourse regarding surveillance of police. The significance of the strong tide of legal decisions in favor of First Amendment rights is therefore vastly overstated. As if to highlight the disregard for the rule of law displayed by some officers, just one day after Chief Lanier's order was issued, an officer of the Metropolitan Police Department confiscated a man's cell phone for recording an investigation in public. The phone was eventually returned, but without its memory card. Harassment and intimidation occur even in one-party states which have no legal issue with the legality of recording police. Officers who brutalize civilians have already displayed their total disregard for the law, and civilians are hardly in a position to argue legality in the face of potential or actual violence. The Mollen Commission Report, produced to investigate corruption in the New York City police force in the early 1990s, highlights the culture of outright disrespect for the law which continues to pervade police departments in the United States and hints at what officers might be willing to do to those who interfere:

[There is] a deep-rooted perception among many officers of all ranks within the Department that nothing is really wrong with compromising facts to fight crime in the real world. Simply put, despite the devastating consequences of police falsifications, there is a persistent belief among many officers that it is necessary and justified, even if unlawful. As one dedicated officer put it, police officers often view falsification as, to use his words, “doing God's work”--doing whatever it takes to get a suspected criminal off the streets. This attitude is so entrenched, especially in high-crime precincts, that when investigators confronted one recently arrested officer with evidence of perjury, he asked in disbelief, “What's wrong with that? They're guilty.”

An officer willing to falsify documents to support an illegal arrest or excessive violence is not likely to be deterred from the considerably less serious crime of confiscating a cell phone. A YouTube video of a Mississippi officer illustrates the difficulty a civilian faces when refusing a direct order, even with full knowledge that the officer is grossly overstepping his bounds. The video depicts an officer exiting his vehicle, rushing toward the amateur videographer, and ordering him to “turn it off!” When the civilian refuses, the officer says, “Well, you're going to jail,” before snatching the camera out of the civilian's hand. Any response other than submission would likely have led to violence. The problem is evident in many jurisdictions. Khaliah Fitchette, a high school student, had a similar experience in New Jersey when she was arrested for attempting to record police officers removing a man from a bus. No charges were filed. Mitchell Crooks of Nevada was beaten by Las Vegas police officers when he refused to stop recording as they investigated a burglary across the street from his home. Officers in Miami smashed Narces Benoit's cell phone for recording police “firing dozens of bullets into a car driven by Raymond Herisse, a suspect who hit a police officer and other vehicles while driving recklessly.”
Even in the absence of wiretapping statutes, police have turned to a variety of other laws to suppress civilian recordings. The law “in 38 states plainly allows citizens to record police, as long as you don't physically interfere with their work. Police might still unfairly harass you, detain you, or confiscate your camera. They might even arrest you for some catchall misdemeanor such as obstruction of justice or disorderly conduct.” Pearl Police in Mississippi slammed two teens to the ground and arrested them on charges of disorderly conduct when they attempted to record a shootout with police in their apartment complex.

Given the history of police culture in the United States, behavior of this sort should be expected. If NYPD officer Justice Volpe can sodomize Abner Louima and make a spectacle of himself in the police department with the instrument of his crime, and still not be reported for his actions, what is to prevent a cop from perpetrating the comparatively benign act of confiscating a cell phone or turning off a camera? Sometimes nothing, as evidenced by the off-camera beating of a woman in Shreveport, Louisiana. After her arrest and detention on suspicion of driving while intoxicated, Angela Garbarino became belligerent and attempted to flee the police station. Officer Wiley Willis slams her repeatedly into a nearby chair then turns off the police station's camera recording the confrontation. When the video resumes, Garbarino is lying on her back in a pool of her own blood. She has two black eyes, a broken nose, two broken teeth, and numerous lacerations and bruises. Although the letter of the law technically stands with victims like Angela Garbarino, the law enforcement system does not. The officer insists that Garbarino sustained her injuries from a fall. He was fired and no charges were filed.


III. OUR DUTY MOVING FORWARD

Police officers overstep their legal boundaries because they exist within a culture of abuse. That culture employs an “us and them” dichotomy to justify its existence and the behavior it supports. The ability of this mentality to produce seemingly inhuman behavior has been documented elsewhere. In the Stanford Prison Experiment, college students screened for normality and divided into groups of guards and prisoners rapidly developed a shockingly brutal culture even in the confines of a temporary experiment. The abuse of captives at the Abu Ghraib prison in Iraq committed by U.S. soldiers serves as another example of what happens when human beings are viewed as somehow “other.” Fortunately, video surveillance is the perfect means of preventing this type of misconduct. It has been repeatedly shown, and it is intuitively true, that people alter their behavior for the better when they believe they are being watched.

As a result, this Note argues that it is the moral duty of every civilian, irrespective of the state of the law, to combat police brutality through video surveillance. The history of civil disobedience in this country is strong, and it should be continued. The days of Black Panthers marching the streets with shotguns have passed, but we remain capable of patrolling the streets. Law students are in a unique position to facilitate this fight. Students across the country must take up the work that members of the Georgetown Journal on Poverty Law and Policy will engage in this year, informing the people that not only is surveillance the most effective means at our disposal of combating police misconduct, but that it is our right and duty to record police on public duty whenever possible.
 



A. The Root and Solution, Clarified

Surely, the officers who witnessed Justin Volpe's perversely triumphant parade would be shocked and disgusted under normal circumstances. Police officers are human beings, complete with emotions and internal dialogues every bit as rich and complex as any other's. How, then, does such a twisted culture come into existence? And how is it maintained? The Stanford Prison Experiment, a controversial simulation conducted at Stanford University in 1971, may shed light.

Two dozen middle-class college students, selected from a larger pool after screening for the most “normal, average, and healthy” of the bunch, were randomly assigned to act as either prisoner or guard in a mock-prison scenario. The prisoners were “arrested” at their homes by Palo Alto police and brought, blindfolded, to a makeshift prison in the basement of Stanford's Jordan Hall. On the second day, the prisoners revolted. Once the guards had the rebellion under control, “they steadily increased their coercive aggression tactics, humiliation and dehumanization of the prisoners.” By the sixth day, several prisoners had experienced mental breakdowns and the guards' behavior had escalated to the point that the experiment was shut down. The guards:

repeatedly stripped their prisoners naked, hooded them, chained them, denied them food or bedding privileges, put them into solitary confinement, and made them clean toilet bowls with their bare hands .... They began using the prisoners as their playthings, devising ever more humiliating and degrading games for them to play. Over time, these amusements took a sexual turn, such as having the prisoners simulate sodomy on each other.

Unsurprisingly, the worst abuses occurred at night when the guards believed the experiment staff was not watching. The “Jekyll and Hyde” transformations of some guards stunned observers, and may help to explain the behavior of the police officers who led otherwise normal lives, but still managed to ignore Volpe's sadistic display or the cries of Thomas as he was beaten and suffocated to death. The “‘good guards' who did not personally debase the prisoners [of the Stanford Prison Experiment] failed to confront the worst of their comrades, allowing evil to ripen without challenge.”
Linking the inhuman conditions imposed by U.S. soldiers on Iraqi prisoners at the Abu Ghraib prison in 2004 to the Stanford Prison Experiment, Stanford professor Philip Zimbardo, who orchestrated the original experiment and has spent decades studying the phenomenon, stated, “Human behavior is much more under the control of situational forces than most of us recognize or want to acknowledge. In a situation that implicitly gives permission for suspending moral values, many of us can be morphed into creatures alien to our usual natures.”

United States soldiers at Abu Ghraib punched and kicked detainees, videotaped and photographed them naked, arranged them in sexually explicit positions, and forced male detainees to masturbate while on camera, among other offenses. Pulitzer Prize-winning investigative journalist Seymour Hersh alleged that unreleased footage depicts children being sodomized in front of women in the prison. He also wrote that Maj. Gen. Antonio Taguba, author of an internal U.S. Army report on the atrocities, informed him of “a video of a male American soldier in uniform sodomizing a female detainee.” Lt. Gen. Anthony Jones described the abuses as “intentional violent or sexual abuses” not believed to be “permitted by any policy.” Of course, this type of abuse might not have been permitted by any official policy, but other investigators concluded that the worst abuses arose from an ““atmosphere of permissiveness,” much like the one present in U.S. police departments.

A report by Maj. Gen. George Fay attributed the more severe abuses at Abu Ghraib to an escalating “dehumanization” of detainees. Dehumanization is the root of much of this disturbing behavior because “it is frequently the most important precursor to moral exclusion, the process by which stigmatized groups are placed outside the boundary in which moral values, rules, and considerations of fairness apply.” Professor Philip Zimbardo called dehumanization “one of the central processes in the transformation of ordinary, normal people into indifferent or even wanton perpetrators of evil,” and defined it as the process “by which certain other people or collectives of them, are depicted as less than human, as non-comparable in humanity or personal dignity to those who do the labeling.” Dehumanization was present in the Stanford Prison Experiment and at Abu Ghraib, and it is present in police departments throughout the United States when officers employ the idea of the ““other” to justify vicious attacks on civilians. Professor John P. Crank described the way police have used the military metaphor to dehumanize criminals: “It provided a way to view the police as protectors of society ... and to view criminals as amoral enemies--less than human. It promoted a perspective ... with enormous staying power, that criminals are enemies of the state, and, therefore, not worthy of state legal protections.” Others have noted the phenomenon as well. Robert Benson of Loyola Law School stated:

Police departments have always been organized as military-style hierarchies, but in recent decades they have gone beyond organization to mimic military tactics in the streets. This means, among other things, a maximum use of force even in minor situations, use of heavy, sophisticated gear and equipment, a threatening and hostile demeanor toward the public, and a siege mentality in which the police dehumanize the citizens into enemies in a war which must be won at all costs.

Social psychology has provided insight into the process of dehumanization. Research suggests that complex emotions like jealousy, sympathy, and hope are not applied to “out-groups” and are preferentially attributed to “in-groups.” This preferential assignment can effect change in altruism and empathy. These research findings are reinforced by a neurological component. A 2006 study established that “when participants viewed targets from highly stigmatized social groups (e.g., homeless people and drug addicts), who elicit disgust, the region of the brain typically recruited for social perception (the medial prefrontal cortex) was not recruited.”
Fortunately, the knowledge of being recorded can deter acts of misconduct. Thomas Jefferson once said, “Whenever you are to do a thing, though it can never be known but to yourself, ask yourself how you would act were all the world looking at you, and act accordingly.” In making that statement, Thomas Jefferson understood the intuitive truth that observation promotes ethical behavior. George Orwell recognized this same truth in his novel Nineteen Eighty-Four, where ever-present government observation through “telescreens” was used to control a person's thoughts and actions. Researchers from a number of disciplines have documented this effect. In a 2011 study, researchers concluded “even very subtle cues that one is being observed can affect cooperative behaviors.” Participants in the study read brief accounts of two moral violations and rated the moral acceptability of each. According to the study, “[v]iolations were more strongly condemned in a condition where participants were exposed to surveillance cues ... than in a control condition.” Laboratory studies and experiments have shown that even the image of human eyes can cause participants to behave more cooperatively in economic games and to increase their level of contributions to an honesty box.

Moreover, in a 2011 study, researchers hung posters featuring either eyes or flowers exhorting cafeteria patrons to clear their litter. During periods where the posters featured eyes, patrons were twice as likely to clean up after themselves. Even in the absence of actual observation, the subjective perception that one might be observed was enough to generate behavior more in line with social expectations. Although this was a negative influence on the protagonists of Nineteen-Eighty Four, it is a positive influence concerning police officers in the U.S.

Some studies have directly evaluated the effect of surveillance on police misconduct. In a 2003 study, Benjamin Goold of Niigata University and the John Jay College of Criminal Justice, interviewed British officers being monitored by close-circuit televisions (CCTV) regarding the cameras' effects on their behavior. Initially, the majority of officers responded that the presence of cameras had no effect on their behavior or work. However, when pressed on the issue, over two-thirds of the officers “conceded that the introduction of cameras had forced them to be ‘more careful’ when out on patrol.” Some officers had heard stories about police officers being successfully prosecuted for unlawful arrests or assaults resulting from CCTV evidence. Many came to the conclusion that “the introduction of CCTV made it essential for them to ‘go by the book,’ or at least create the appearance of doing so.” An investigation using similar methodology performed by the U.S. Department of Justice and the International Association of Chiefs of Police came to the same conclusion. While only one-fifth of the officers responded that the cameras altered their performance on initial surveys, a majority of officers confessed in subsequent interviews that they act with more professionalism and courtesy when under surveillance. These studies strongly indicate that recording officers in their confrontations with civilians will, in addition to facilitating successful prosecution, deter acts of misconduct in the first place.


B. With or Without You, Government

“When wrongs are pressed because it is believed they will be borne, resistance becomes morality.”

- Thomas Jefferson

As Jefferson foreshadowed, our moral duty has become resistance. Irrespective of whether the American government sanctions the acts of police officers who choose to prevent, suppress, or destroy video evidence of their misconduct, it is self-evident that such acts are wrong. Police departments cannot be allowed to continue condoning clear abuses of power at the expense of innocent civilians, and officers cannot continue committing them under color of law. Therefore, our duty to engage in peaceful civil disobedience through recording police misconduct is clear. Thankfully, our greatest weapon is now within reach for hundreds of millions of Americans at any time, notwithstanding the deep-seated police culture that actively works to impede its use.

As common experience and social science have demonstrated, the perception of oversight can have a positive effect on ethical behavior. If the officers who beat Rodney King had known that their conduct would be televised nationwide and become topics of political discourse for decades, they would undoubtedly have altered their behavior for the better. In light of this knowledge, every officer must believe that his or her misconduct can and will be recorded and played back endlessly on the internet, by media outlets, and in courtrooms. Further, to the best of our ability, we must work to make that belief true.

Students should pair with organizations--such as the National Lawyers' Guild, the American Civil Liberties Union (ACLU), and Copwatch--that have already begun to take up the cause. The National Lawyers' Guild (NLG) has created a program to train and disseminate legal observers--individuals who attend and record protests and other events likely to produce conflicts between the public and the police. The ACLU of New Jersey (ACLU-NJ) has released an application for mobile phones running the Android operating system called “Police Tape,” which allows users to record video and audio discreetly. First, the application disappears from the phone's screen when recording begins. Second, the application can send a copy of the recording to the ACLU for backup and storage so that a recording remains intact even if the police attempt to delete the video or destroy the phone. Discussing the ACLU-NJ's motivation for developing this application, Executive Director Deborah Jacobs said, “Too often incidents of serious misconduct go unreported because citizens don't feel that they will be believed. Here, the technology empowers citizens to place a check on police power directly.” Copwatch, a network of individual organizations dedicated to monitoring the police, has taken this newfound capability very seriously. For example, the primary aim of Oakland Copwatch is to ensure that “incidents of police brutality will never go undocumented, unreported, and that the cop will never go free from prosecution.” The founder of Orlando Copwatch, John Kurtz, was recently convicted of resisting arrest for pointing his camera at police and saying, “Calm down, I am filming you.” Such organizations and their courageous members are the natural allies of law students as we move forward.


C. A Call to Arms

“If we desire respect for the law we must first make the law respectable.”

- Louis D. Brandeis

The simplest and most effective means of completing this herculean task is to divide it among the many. Conscientious law students have a natural affinity with organizations like the ACLU and Copwatch, but we have a unique position and role to play in aiding the effort. There are law schools in nearly every major city in the United States, which gives a great numbers of students access to a majority of the nation's population. Further, for those with even minimal training in legal research, it is exceedingly simple to determine the legality of recording officers in any given jurisdiction and whether local law enforcement has acknowledged the situation. While that information is present in this Note and current through its drafting, it is regularly being liberalized further in favor of First Amendment privileges. We must disseminate that information through all means at our disposal, the simplest being to post and distribute flyers and pamphlets. In the Spring of 2013, members of the Georgetown Journal on Poverty Law and Policy will distribute a flyer detailing the legality of recording police in Washington, D.C. and suggesting means of pursuing misconduct charges; however, the students will caution that doing so may result in meritless arrest and incarceration. Efforts will be targeted at high crime neighborhoods. Further, the author will contact each of the seven police districts in the city to ensure that commanding officers are likewise aware of the situation and have informed their subordinates. Similar actions must be taken in cities across the country.


CONCLUSION

The fight against police brutality must be won not only in law books, but also on the streets. This is not a discussion in the abstract, a callused inspection of another of the myriad pressing legal and social issues, but a call to arms. D.C. law students, in conjunction with likeminded public interest organizations, will campaign throughout the city to ensure that both the police and the people are aware of the First Amendment right to record. Other conscientious students must follow suit. I ask, on behalf of every civilian brutalized by police officers, that those reading this Note continue the work that members of this Journal will begin this Spring. Let every person know that it is the right and duty of the American people to train cameras on police officers whenever possible. The immoral and illegal commands of officers to ““turn it off!” must be willfully disobeyed, even when made under the color of law.


“Few will have the greatness to bend history itself, but each of us can work to change a small portion of events .... It is from numberless diverse acts of courage and belief that human history is shaped.”

- Robert F. Kennedy


 . J.D. Candidate, Georgetown University Law Center (2013); B.A., Rutgers University (2010).

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