Ramsey Orta could have been arrested for recording what police were doing to Eric Garner. That would have changed everything.
According to the New York Daily News, the internal police report about the incident doesn’t even mention that Garner was put in a choke hold, a maneuver prohibited by New York Police Department policy. That report also claims Garner was not in distress. Thankfully, we don’t have to take the officers’ word for it because Orta, Garner’s friend, had the wherewithal to simply hit the record button on his phone. That decision and his video have altered the investigation and the national conversation about Garner's death.
The video shows what even the New York City mayor and police commissioner acknowledge is Garner in a choke hold, and we can hear Garner pleading with officers, telling them, “I can’t breathe” shortly before he died.
This case puts national focus once again on police misconduct, but it also highlights what is now a civic duty: recording police behavior. And courts have consistently upheld a citizen’s right to do so.
In one of the most recent cases, the 1st Circuit U.S. Court of Appeals in 2011 sided with Simon Glik who was arrested for recording Boston police officers as they arrested a man. The court said, “… a citizen’s right to film government officials, including law-enforcement officials, in the discharge of their duties in a public space is a basic, vital and well-established liberty safeguarded by the First Amendment.”
Still, Orta could have found himself in handcuffs because even though courts have consistently upheld a citizen’s right to record police activity, that right is not absolute. The 1st Circuit ruling in Glik also recognized that “the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions.” The key word being “reasonable.” Also, the Supreme Court has stated that traffic stops, in particular, are “especially fraught with danger for police officers … and the risk of harm to both the police and the occupants [of a stopped vehicle] is minimized … if the officers routinely exercise unquestioned command of the situation.” That rationale could be applied to give a police officer the benefit of the doubt that during a highly stressful situation, he or she needs to assert full command of a scene, which includes telling someone to stop recording.
Of course, the police have the right to do their jobs without interference. Though they appear to have some legal leeway in telling a citizen to stop recording police activity, it’s still a pretty high bar. A citizen would have to be clearly jeopardizing the safety of the officer or the suspect, violating the law, or inciting others to violate the law. As a 2012 Justice Department letter lays out, “an individual’s recording of police activity from a safe distance without any attendant action intended to obstruct the activity or threaten the safety of others does not amount to interference.”
Yet, arrests and intimidation of citizens who are recording police continue to happen. There’s even a website devoted to documenting instances of police intimidating people who are exercising their right to record police. The arrests are damaging even if they don’t lead to charges or convictions because they can prevent citizens from gathering, as in the case of Garner, invaluable evidence of possible police misconduct. Imagine if police had told Orta he was too close to them or that his presence was a distraction, and they put him in handcuffs. Imagine if that video of Garner in a choke hold, pinned to the ground, gasping for air, didn’t exist.
Letitia James, the New York City public advocate, wants all officers outfitted with video cameras. She believes that is the ultimate in accountability. Every police interaction with citizens would be recorded. It could also, she says, protect the city against false claims of misconduct. But until every officer in every jurisdiction in this country is outfitted with a camera, it’s up to everyday citizens to hold police accountable. All of us already have the equipment (a cell phone) needed. We also have the right to use it.
Sure, your video of a police action might end up simply being an interesting post to your YouTube account or it might get you a few retweets. But it could also serve as the key to justice for a person who can’t speak for himself.