Saratoga County Criminal Defense Lawyer Blog

We really hadn't planned to return to the issue this week, but yet another New Yorker has been arrested for recording police activity. It happened last Friday, July 30th. The arrestee was Phil Datz, a professional cameraman - a credentialed member of the press.

The charge, once again, was obstruction of governmental administration, a crime. According to the Long Island Press, Datz was hauled off to a police station, where mug shots were taken, and he was fingerprinted. As we've said before, the potential penalty is $1,000 and/or a year in jail.

The whole thing is absolutely outrageous - beyond a mere exclamation mark's power to express.

In fairness it must be said, though, that the arrest obviously embarrassed the officer's superiors. Another article in the Long Island Press indicates that the Police Commissioner wants the charge 'nullified'. And that's not surprising, since Datz, throughout the recorded encounter, is clearly following the department's own published guidelines for the media.

The guidelines themselves bear looking at: bystanders have the right to remain in the area - outside police lines - "provided their presence and activities are lawful and do not unlawfully compromise the safety and outcome of police activity or violate the privacy of the detainee."

Bystanders may: (1) 'observe the incident'; (2) 'produce recorded media including still photos, video and audio recordings in any format'; and (3) 'comment regarding the incident'. These are, in fact, excellent guidelines: they neatly summarize both the civilian's constitutional rights at the scene of police activity, and the limitations the state may lawfully impose on the exercise of those rights.

Nevertheless, as the video demonstrates, rights and guidelines mean nothing to a man who has both power and a yen to use it - right now, on you. The bravery of citizens like Phil Datz and Emily Good has to be commended.

Their bravery is especially commendable in given a regrettable pattern to be seen all over the country: attempts to trample (sometimes literally) on the public's rights to see and document what government is doing. Here's a link to an editorial posted by Glens Falls' Post-Star. It's got a little history and a brief overview of law enforcement push-back against civilians who record their activity. On the scary side, but necessary reading.

An update: We discussed in a prior entry Emily Good, who was arrested here in New York State for recording a police officer on video during traffic stop. The charge against her was ultimately dismissed, and now Ms. Good is filing a civil suit:

With Ms. Good's situation in mind, let's address a couple of questions regarding citizen interaction with law enforcement:

First of all, in the case of Ms. Good, we know that the State had not given the arresting officer the power to do what he did in the circumstances depicted in the video; but how much power can a state give a police officer?

Second, separate and apart from an officer's power (or lack of power), what were Ms. Good's actual rights? Did she have a positive right under the Constitution to do what she was doing? What positive rights might the officer have violated when he arrested her?

Continue reading "First Amendment Right to Record Police in New York?" »

"Your superior intellect is no match for our puny weapons!" The Simpsons

Our last entry discussed the plight of Emily Good, a woman arrested in Rochester, New York, for recording a police traffic stop on video.

In an interesting twist on that basic theme, the Post-Star of Glens Falls, New York, reports the arrest of a reporter for attempting to inquire into police activities at a crime scene. It would appear that at the time of the arrest the reporter was in a public thoroughfare, asking police officers questions about a crime that had taken place hours earlier.

As in the Rochester case, the offending observer was handcuffed and subjected to all the other humiliations incident to arrest. And as in the Rochester case, the charge is 'Obstructing Governmental Administration in the Second Degree', NY Penal Law Section 195.05. This is a Class A Misdemeanor under New York law.

The man must appear in court later this month. Conviction could cost him a year in jail, a $1,000 fine, and more than $200 in surcharges. A hefty price to pay for trying to find out what public employees are up to.

The charge against Ms. Good was ultimately dismissed: her actions didn't violate the statute cited by the complaining officer. In other words, the officer wanted to punish her behavior, but didn't have the power, because the state (in the form of its legislature), had declined to give him that power.

But could the state have given him the power? Does the individual have any right that could check such power? Stay tuned.

Lisa: ...I mean, if you're the police, who will police the police?

Homer: I dunno. Coast Guard?

A fascinating video out of Rochester, New York, has hit You Tube, and it's getting a lot of play, probably because the arrest of a young woman who had the nerve to videotape the police in action (over their objections) seems so at odds with the fundamental notion that ours is a "free country".

The actual criminal charge was dismissed yesterday, as reported by Rochester's Democrat and Chronicle, which has done a great job of covering this case. However, by the time the charge was dismissed the video - and the issue - had gone 'viral'.

Exactly why was the woman, Emily Good, arrested? According to the complaint filed by the police officer (posted by the Democrat and Chronicle,), the presence "behind them" of Ms. Good "holding something in her hand and [illegible] it in the air towards officers," made those officers "extremely nervous and posed an officer safety issue."

The charge was Obstructing Governmental Administration in the Second Degree, NY Penal Law section 195.05. In pertinent part, a person is guilty of this when he or she "intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act." In consenting to the dismissal of the charge, the prosecutor agreed that Ms. Good's actions didn't meet those criteria.

So again, exactly why was Ms. Good arrested? A number of things are apparent from the video: Ms. Good was clearly some distance from the police action. She never approached or threatened to approach the scene more closely. When questioned, she explained exactly what she was doing. Other people were standing in the vicinity (This is clear from the fact that the videotaping continues after the arrest, from approximately the same vantage, and from the other nearby voices heard on the video). The officer never ordered the others back. In short, the only apparent basis for the order to go back into her house was Ms. Good's presence with camera rolling (the device was a video-equipped i-pod).

Continue reading "New York Arrest for videotaping police traffic stop: officer's miscalculation goes viral" »