The Austin Police Department introduced a “training bulletin” last month meant to educate officers on how to legally deal with citizens who record them in public.
But all it did was allow officers to create their own laws in order to justify arresting these citizens.
And that was probably the intent of it considering they are dealing with a growing number of activists who record them in public, including one incident in which activist Antonio Buehler outed an undercover cop on video last month.
That same cop, Justin Berry, arrested Buehler two nights later while in uniform, marking the second time since January that Buehler had been arrested for recording cops.
It was an obvious case of retaliation for the video that exposed him in a popular bar area targeting young, underage women who were consuming alcohol.
Two days later, Austin police sent out the memo stating that even though citizens have the right to record them in public, police have the right to arrest them for “interference of public duties” if they don’t move back when ordered – even if they are already standing at a respectable and reasonable distance from the investigation as Buehler was during his second arrest.
They then announced that they are working on a policy that would prevent citizens from recording them from within 50 feet, which shows their audacity towards the Constitution.
Even though they eventually had to admit there was no legal way they could enforce a 50 foot rule, they stated they would leave it up to the officers as to how far back citizens should stand when recording.
So it’s not surprising that police arrested Buehler a third time last Friday while he was recording a DUI traffic stop.
Then they arrested his friend, Sarah Dickerson, for recording the arrest.
Although police confiscated and have yet to return their cameras, both arrests were captured on video by a third activist who was standing further back, which you can view above.
All three activists are members of the Peaceful Streets Project, an organization launched by Buehler after his first arrest in the early hours of New Year’s Day where he is still facing ten years in prison for allegedly spitting in the face of an Austin police officer named Pat Oborski.
The January incident was unknowingly caught on video by a random citizen across the street, which revealed that Oborski was assaulting Buehler rather than the other way around as he had written in his report.
Buehler, 35, is a West Point graduate who became an army lieutenant before earning an MBA from Stanford, so he’s not afraid of a challenge.
He has been relentless in shining a light on police abuse, building a huge following while doing it.
Oborski, the cop who arrested him in January, was also involved in his latest arrest Friday in which Buehler and Dickerson were standing well away from the DUI investigation he was conducting.
The exchange between the two begins shortly after the traffic stop when Oborski orders Buehler through his car’s PA system to back up.
“Mr Buehler, I need you to back up.”
“How far?” Buehler responds.
“Back up until I tell you to stop.”
Buehler and Dickerson back up to where they are barely visible in the video while another officer walks up to them.
Meanwhile, Oborski leads the woman through a series of roadside sobriety tests without any interference from the two activists.
Almost six minutes into the video – when it is clear that Buehler and Dickerson were not physically interfering nor were they verbally addressing the woman or Oborski – they were handcuffed and arrested.
Then they were escorted through the investigation they were supposedly interfering with.
Police confiscated their cameras, making it three confiscated cameras that they now have in their possession, including the one they still have from his second arrest.
“They say they are holding them for evidentiary value but it’s obvious they are holding them to suppress evidence,” Buehler said in a telephone interview with Photography is Not a Crime.
It is also obvious they are not adhering to the 11-page guidelines drafted by the U.S. Department of Justice drafted earlier this year.
Mickey Osterreicher, general counsel for the National Press Photographers Association, reviewed the training bulletin issued by Austin police and issued the following statement:
“Aside from being overly broad and vague the APD policy leaves far too much to the discretion of its officers, whereby they can construe almost anything as ‘interference.’ While First Amendment protections may be subject to reasonable time, place and manner restrictions, the language of the order allows officers to direct others to comply in almost any way they see fit. It is unfortunate that the order begins in the right spirit reminding officers ‘that it is lawful for a person to videotape or photograph a police officer who is in public’ and that they ‘should not tell a person to stop videotaping the officer, or other public servant, as long as the person is not interfering with the public servant’s duties’ but then goes on to allow them to do so without properly defining ‘interference.’
In most jurisdictions such interference must be physical in nature, not just vague terms such as ‘interrupts, disrupts, impedes, or otherwise interferes with’ that are left to an officer’s sole discretion. Under these rules officers are free to create a chilling effect upon far more speech (photography/recording is deemed a form of speech for First Amendment protections) than is necessary to achieve a substantial government interest – that being actual interference with a police officer in the execution of his duties – and would thus be held to be unconstitutional. Even the LAPD new policy on Suspicious Activity Reporting, which the NPPA along with other groups objected to, includes language that requires officers to articulate facts and circumstances that support probable cause or reasonable suspicion ‘that the behavior observed is not innocent, but rather reasonably indicative of criminal activity’ such as ‘interference.’
It is important to note that while ‘it is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only’ that still will not protect someone from being arrested in the first place. Also if viewed in proper context ‘speech only’ could be interpreted to include photography and recording.
Finally in its very liberal recitation of ‘exigent circumstances’ it is not surprising that the policy states ‘a search warrant should be obtained before viewing the recorded images, video, or sound;’ when it should actually read ‘a search warrant must first be obtained before viewing the recorded images, video, or sound.’”
Osterreicher also shared these views in a letter he sent to Austin Police Chief Art Acevedo this morning.
But the Austin Police Department will likely not be swayed considering it won a conviction last week against another activist who was arrested for interference while recording them, even though the video shows he was not verbally or physically interfering either.
In fact, they have not only have convinced jurors that these activists are a threat to their safety, they’ve convinced the local media who fail to see these arrests will eventually lead to a loss of rights for themselves.
So perhaps it is time for the U.S. Department of Justice to get involved as it did with the Baltimore Police Department earlier this year, which had created its own laws when dealing with citizens who record them.
Not much different than the Austin Police Department is doing.
In fact, it was only last year that the Department of Justice closed a four-year investigation against the Austin Police Department for allegations of police abuse against minorities, concluding that it did not break any laws.
But now there is plenty of video evidence they are abusing the rights of citizens who record them.
The Department of Justice describes a process on its website encouraging victims of police abuse to file a complaint in order to spark an investigation under the “police misconduct provision,” which is described below.
The types of conduct covered by this law can include, among other things, excessive force, discriminatory harassment, false arrests, coercive sexual conduct, and unlawful stops, searches or arrests. In order to be covered by this law, the misconduct must constitute a “pattern or practice” — it may not simply be an isolated incident. The DOJ must be able to show in court that the agency has an unlawful policy or that the incidents constituted a pattern of unlawful conduct
The process requires citizens to write a letter to Washington D.C. instead of just sending an email, which is in a little discouraging in this cyber age of laziness.
But it might be worth the trouble if we all send letters to bring awareness to what is obviously a clear pattern of abuse because it will eventually affect us all.
After all, what is happening in Austin is a microcosm of what is happening throughout the country. It needs to be stopped immediately.
Dickerson, who wrote about her arrest on her blog, placed the issue in perfect perspective.
Filming the police is integral in protecting the legal rights of activists, and it levels the playing field. In an arrest, the police hold all power, and we must submit to the arrest, to the police brutality, to the devastating effects of the prison system on our humanity, and then we pray that we have enough money and a decent enough lawyer to get us through the legal system. The right to film the police is the least of what we could and should be asking for. There will never be justice on scene or in the media again if we are not free to document and film those in power and to hold them accountable. What we are doing in the Peaceful Streets Project has intersectional implications, all of which rely on our First Amendment rights to free speech and to freedom of the press. How our court cases play out will affect free speech and free press rights for all.
Here is the complaint process from the USDOJ website.
Please send stories, tips and videos to firstname.lastname@example.org.
CARLOS MILLER’S LEGAL DEFENSE FUND
I am immersed in a legal case where I not only want to clear my criminal charges stemming from my arrest in January, but I want to sue the Miami-Dade Police Department for deleting my footage, which I was able to recover.
My goal is to set some type of precedent to ensure this does not happen as often as it does today where cops simply get away with it.
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