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.