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The First Amendment Hasn’t Stopped Police From Harassing Copwatchers

Posted in Austin, Journalism, and Truthout

Originally published at Truthout.

At a protest in downtown Denver, on April 29, 2015, a police officer stole Jessica Benn’s smartphone.

Benn had been filming her husband, Jesse, from the safety of the sidewalk as police arrested him. That was enough for her to be targeted and to have her property illegally seized.

“An officer just stepped up to me and grabbed it right out of my hand,” she told Truthout. “Right behind him was an officer in SWAT gear who then took me and pushed me up against a bus with a baton across my neck and held me there.”

Benn grew increasingly alarmed as the officer ignored her questions.

“It was very chaotic, people were yelling and getting arrested all around us, and the nature of the arrests were very violent. So at that point I was concerned about my safety and I told this officer that I was pregnant and could he please not hurt my stomach.”

The officer shoved her back on the sidewalk and released her. “He said ‘well, then get out of here,’ kind of like I shouldn’t have been there at all if I wasn’t expecting to be physically assaulted.”

Video footage shot by other activists later helped identify Antonio Lopez, a Denver Police Department (DPD) district commander, as the officer who seized her phone and ordered another cop to “grab her.”

Before Benn hired a lawyer and sued the city, she tried every other recourse available to her.

“Immediately that afternoon I called the possessions department at the DPD to see if my phone had been turned in,” she said.

She called multiple departments, but the police never returned her phone — or even admitted to knowing where it was.

“I also tried internal affairs after that, which was unfruitful,” she said. “And then I went to the independent monitor, trying all my channels of potential agency; none of them were fruitful in getting any kind of accountability from DPD.”

Now she’s one of two Denver residents engaged in civil rights lawsuits that could set an important precedent in Colorado, reaffirming the constitutional right to film the police.

“There’s no published opinion concerning this issue coming out of Denver or Colorado,” Elizabeth Wang, Benn’s legal representative, told Truthout.

“Absolutely Protected by the First Amendment”

Unfortunately, even a win in court may not be enough to stay the hand of the next officer tempted to seize or even arrest a bystander who is filming their actions, judging by their brethren in other cities around the United States.

“The fact is that photography is power,” said Jay Stanley, a senior policy analyst at the American Civil Liberties Union (ACLU) and creator of the organization’s guide to photographers’ rights. “People are loathe to give up power, including police officers.”

He acknowledged that police often ignore these court decisions, and that the problem is an ongoing one. In 2013, Stanley wrote an ACLU blog post about the issue in which he lamented, “Why is it so hard for police officers to learn the law?”

However, officers’ reluctance to relinquish this particular power runs contrary to federal law, according to Wang, who is a partner in the Chicago-based civil rights law firm Loevy & Loevy.

“What Jessica was doing was no different from what any mainstream news journalist does every day — gathering news — and no one questions whether such news gathering by mainstream journalists is protected by the First Amendment,” Wang said. “Jessica’s recording of the police that day was absolutely protected by the First Amendment and the federal Privacy Protection Act.”

Wang is also representing Levi Frasier. Denver police took Frasier’s tablet and beat him when they saw him filming an August 2014 arrest.

If a host of other cases from elsewhere in the country provides any clues, the Colorado District Court is likely to reaffirm the First Amendment right to film the police.

In March, the Pennsylvania chapter of the ACLU appealed a decision denying the right to film police. “Otherwise, the court’s been pretty clear” in many other cases, Stanley noted.

In response to incidents like the pair that Wang is taking to court, the Denver Police Department has already altered its operations manual to specifically affirm the right of individuals to film:

Members of the public, including but not limited to media representatives and bystanders, have a First Amendment right to observe and record officers in public places, as long as their actions do not interfere with the officer’s duties or the safety of officers or others. Officers should assume that they are being recorded at all times when on-duty in a public space.

Merely changing the manual isn’t enough to always ensure police accountability, however, Stanley warned.

“Some of it falls to police management for not properly training their forces on just what the law says and how clear it is. And also for not, in some cases, properly disciplining officers that do violate people’s constitutional rights.”

But Police “Don’t Care” About Copwatchers’ First Amendment Rights

Joshua Pineda’s arrest on April 10, just after midnight, would mark his fourth arrest for filming police in Austin, Texas. A lead organizer from the Peaceful Streets Project, a copwatching collective that educates the public about its right to film, Pineda regularly records police action with a group that patrols 6th Street, the city’s downtown club district.

“An incident broke out where they had shoved this African-American guy,” Pineda told Truthout.

As the Peaceful Streets Project team, with Pineda in the lead, approached the incident, which involved an officer named Cameron Staff, most of the other police involved returned to their posts. But Austin Police Cpl. Richard Mears approached the group, ordering another member to “get back.”

Like Denver, the policy manual for the Austin Police Department (APD) specifically forbids interfering with people who film officers’ duties. The manual reads, in part:

Officers are reminded that photography, including videotaping, of places, buildings, structures and events are common and normally lawful activities…. In areas open to the public, officers shall allow bystanders the same access for photography as is given to members of the news. Officers shall be aware that … [a] bystander has the same right to take photographs or make recordings as a member of the media, as long as the bystander has a legal right to be present where he or she is located.

Pineda told Truthout his group was at least 10 feet from the incident (with other club-going bystanders much closer to the police) and he knew the manual forbids interfering with filming, so he half-kneeled on the sidewalk and continued recording.

“He started screaming at me to get back, and I had no interest in it, so he grabbed me and immediately arrested me,” Pineda said.

The APD not only confiscated the device he was using to film and another camera they found in his backpack, but also one of his most prized possessions: a collar he constantly wears, which had deep personal meaning for Pineda.

“My collars have changed with each era of my life. It’s always been a big, kind of notorious part of my life, especially with APD. They’ve mentioned it several times when they’ve taunted us” during interactions at cop watch events, he said. “I know they kept it as a trophy.”

The Peaceful Streets Project formed after its founder, Antonio Buehler, was arrested for filming a violent drunk driving arrest on New Year’s Day in 2012. Despite winning multiple times in court, the group’s activists are still harassed, insulted and arrested.

“While I was being carried off,” Pineda recalled, “I told them, ‘you lost in court, you lost this case to Antonio, it’s an unlawful order,’ and they went, ‘We don’t care.’ They don’t care. They’re not held accountable.”

Police have repeatedly tried to dismiss freedom of speech arguments by arguing that Peaceful Streets Project members are guilty of “interference with police duties” by getting too close. Pineda dismissed their claims.

“Their inability to pay attention should result in them being fired. If you can’t pay attention because someone is filming you, we shouldn’t be paying you,” he said.

“Before We’ll Negotiate, You Have to Stop Violating People’s Rights”

In March 2016, Peaceful Streets created a viral video of an APD officer, Cameron Caldwell, using pepper spray on a handcuffed man in a police van. Tensions with police escalated after that, and after an incident in which the group harshly criticized the APD in the wake of the shooting of a police officer during a burglary.

Pineda acknowledged that Peaceful Streets’ tactics are more confrontational, and more openly anti-police than many copwatching groups, but he countered this by pointing out that copwatchers are harassed even when they treat police with respect, such as during the Denver incidents with Benn and Frasier.

“Within the span of four years … we’ve tried working with the police in every which way we possibly can,” Pineda added. “We negotiated how to film, and everything has failed…. The only thing they want is control and domination of us.”

The group quickly grew fed up, especially as violent police incidents continued in Austin, such as the fatal shooting, in February 2016, of David Joseph, a naked and unarmed Black man. “Before we’ll negotiate, you have to stop shooting people; you have to stop violating people’s rights,” Pineda said.

“You put a magic badge and a uniform on them and people think you have to treat them with respect, but it’s just ridiculous.”

Despite the risks, Pineda stressed the potential positive impact of filming police. “It has to get uploaded,” he said.

That’s one reason Pineda said working with a larger organization is so important, and he urged activists to contact Peaceful Streets for advice. The group offers training to new copwatching groups that helps them form vital networks for mutual aid.

“We’ll help them set that up,” he added, “we’ll help them get some sort of network set up and get the resources and knowledge into their community to be able to film and to be able to defend themselves while filming.”

Pineda believes that only a mass movement for transparencycan create police accountability. Peaceful Streets recently began working with WeCopwatch, a national organization that films the police in places like Ferguson, Missouri, and Detroit.

“If they have 50, 100 people every single day stopping to film them, that kind of pressure is going to start mounting up,” Pineda said.

“If 1,000 people filmed in a day, that would outweigh what I’ve done in four years.”

Copyright, Truthout. May not be reprinted without permission.

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