The Best Accountability Tool May Be the Smartphone in Your Pocket

Pictured: The shooting death of Walter Scott in North Charleston, South Carolina, captured by a civilian’s mobile phone camera.

By Molly Tack-Hooper, Staff Attorney, American Civil Liberties Union of Pennsylvania

Since 2013, the ACLU of Pennsylvania has been fighting to preserve ordinary people’s power to use recording technology to keep the police in check through a series of lawsuits against the Philadelphia Police Department over the well documented pattern of PPD officers arresting or citing people who attempt to record police.

This “Copwatch” campaign — the name we’ve given to these lawsuits, filed on behalf of individuals arrested for observing or recording police action — suffered a setback in February 2016, when federal district court Judge Mark Kearney ruled that ordinary people do not have the right to record the police unless they simultaneously criticize the police.

Judge Kearney’s ruling is a major problem. And that problem needs to be addressed now perhaps more than ever before.

Recent attacks on police reform have been launched from both Harrisburg and Washington, D.C. Attorney General Jeff Sessions has signaled that his Department of Justice will scale back its police reform activities, decreeing that police accountability is henceforth the responsibility of local governments, not the federal government. Meanwhile, the Pennsylvania General Assembly isn’t likely to help close the accountability gap left open by Attorney General Sessions. An alarming number of Pennsylvania legislators have been hard at work on measures to insulate law enforcement against oversight, including a bill that would effectively make police body camera footage unobtainable by anyone other than police and prosecutors.

With so many members of the legislative and executive branches working feverishly to cripple the public’s ability to hold police officers accountable for abuses, reform may have to come from the courts — and from We the People.

After filing briefs in October and January in opposition to Judge Kearney’s ruling, on Tuesday, ACLU-PA asked a panel of federal appeals court judges to step up and protect the most powerful tool that ordinary people have for holding the police accountable: the right to record the police.

Although many courts have recognized that documentation and communication about how police use their power is at the heart of what the First Amendment was designed to protect, the federal appeals court that covers Pennsylvania has yet to acknowledge that.

Over the past several years, as smartphones have become ubiquitous, time and again we’ve seen civilians’ photos and videos of police expose the realities of policing in an undeniably powerful way. Ordinary people’s cell phone recordings of police interactions have been a starting point for national conversations about police reform and have sparked grassroots movements seeking accountability for how — and against whom — the police use their tremendous power. And studies show that videos of police interactions can not only document abuses by law enforcement but can also deter abuses.

If allowed to stand, Judge Kearney’s ruling threatens to chill the exercise of core First Amendment freedoms, erode the supply of crucial information about policing, cut off an important societal debate, and stop police accountability movements in their tracks.

We know that protecting the public’s right to record the police plays a vital role in holding law enforcement accountable.

We hope the appeals court will embrace its vital role in safeguarding First Amendment freedoms.

On to the links.

EXCERPTS
(Criminal justice news that could use a second look.)

 Will Philadelphia’s next district attorney set juvenile lifer Terrance Lewis free? Photo from The Inquirer.

The Inquirer: “A judge called this juvenile lifer innocent, but he’s still in prison. Will Philly’s next DA let him go home?” 

“But Lewis is — depending on your perspective — either an incredibly unlucky man or an extraordinarily lucky one. Unlucky to be charged with a crime he says he did not commit, to be tried as an adult in a state where life means life, to be appointed a lawyer who apparently never investigated his case. Lucky, because he keeps encountering more people who were out on the block that evening and are willing to testify that he wasn’t there. And lucky, because he is on the right side of a U.S. Supreme Court decision that found sentences like his to be illegal. Lewis is one of more than 300 juvenile lifers from Philadelphia — the largest such population in the country — being resentenced after the court banned automatic life-without-parole sentences for juveniles in 2012, and then in 2016 ordered that the rule be applied retroactively. So far, the Philadelphia District Attorney’s Office has taken a conservative approach to these cases, often making offers of 35 years to life. But after 19 years in prison for a crime he says he did not commit, Lewis is hoping for a different sentence: time served.”

ACLU-PA: “ACLU of Pennsylvania Argues for the Right to Record the Police Before Federal Appeals Court” 

“With cooperating counsel, the ACLU of Pennsylvania is representing two plaintiffs who photographed police at work and who were detained as a result. Rick Fields was arrested in September 2013, after he stopped to take a photo with his iPhone of a large number of Philadelphia police officers breaking up a house party across the street. One of the officers approached him, asked if he enjoyed “taking pictures of grown men,” and ordered him to leave. After Fields refused, he was handcuffed and detained in a police van, and his phone was searched in an apparent attempt to find the recordings he had made that evening. He was charged with “obstructing the highway,” but the charge was later withdrawn. The other plaintiff is Amanda Geraci, a trained legal observer who was detained by police while she was attempting to monitor police interactions during an anti-fracking protest outside the Pennsylvania Convention Center in September 2012. When Geraci attempted to take photos of police arresting a protestor, a police officer pushed Geraci up against a pillar and pinned Geraci across her throat. Other police officers quickly surrounded Geraci and the officer to block other legal observers from witnessing or recording the incident, although not before several photos were taken by Geraci’s fellow legal observers. In February 2016, federal district court Judge Mark Kearney ruled that the plaintiffs do not have a First Amendment right to photograph the police unless they are doing so for the purpose of criticizing the police. Molly Tack-Hooper, staff attorney for the ACLU of Pennsylvania, argued on behalf of the plaintiffs at today’s hearing in the appeals court. ‘Ordinary people have an important role to play in holding the government accountable, and the First Amendment is one of our main sources of power,’ said Tack-Hooper. ‘Taking photos or videos of how police use their power is part of the freedom protected by the First Amendment.’”

More ACLU-PA: “State Senate Bill Blocks Public Access to Police Video, Undermines Accountability”

“The Pennsylvania Senate today passed legislation to severely restrict the ability of the public to access video recorded by police cameras. The American Civil Liberties Union of Pennsylvania said that the bill undermines the goal of using body cameras as a means of accountability for police officers. ‘If the public cannot obtain video produced by police cameras, they shouldn’t be used at all,’ said Reggie Shuford, executive director of the ACLU of Pennsylvania. ‘While body cameras may be valuable to officers in carrying out their daily duties, the idea of using these cameras came to prominence because people were demanding that police operate with transparency, fairness, and accountability.'”

HEADLINES

(Criminal justice news to be aware of.)

 

Which endorsements matter in Philly’s DA race? Graphic via Philadelphia Weekly.

Pennsylvania

• Philadelphia Weekly: “Ward Lords: The endorsements that matter in the Philly DA’s race”
• Also from Philadelphia Weekly: “Following Frankford’s big weed bust, where does Philly’s underground pot community go now?”
• Pittsburgh City Paper: “Violent Woodland Hills incidents shed light on the role of law enforcement in schools”
• The Inquirer: “Can this group of ex-offenders swing the Philly DA race?”
• Post-Gazette: “Woodland Hills district considers body cameras for school resource officers”
• ABC6 Action News: “Philly DA Candidates Forum”
• The Daily News: “Human Rights Watch cites Pa. case of suicide in immigration detention”
• WFMZ: “Reading woman could be deported after traffic stop reveals undocumented status”
• PennLive: “Sheriffs can’t investigate crime in Pennsylvania, but could that change?”
• Post-Gazette: “‘She was begging … she didn’t want to be alone’: Former inmates recount night of jail suicide”
• The Daily News: “Philly DA Williams faces more federal corruption charges”
• More Daily News: “Hotly contested DA race could see low turnout Tuesday”

National

• Los Angeles Times: “Texas announces lawsuit against local officials considered hostile toward ‘sanctuary cities’ ban”
• New York Times: “ACLU Sues Mississippi Sheriff’s Department Over Violating Blacks’ Rights”
• Slate: “The Prison in Twelve Landscapes Looks at How Mass Incarceration Has Changed Every Aspect of American Life”
• CityLab: “The ‘Portals’ Encouraging Real Conversations About Policing and Race”
• Rare: “How local governments keep poor people in jail just because they’re poor”
• Daily Beast: “Locked Up for the Crime of ‘Disturbing School’: School resource officers—much like metal detectors and zero-tolerance policies — have become part of the tapestry of modern public primary education.”
• New York Times: “Updated N.Y.P.D. Anti-Crime System to Ask: ‘How We Doing?’”
• The Atlantic: “The Border Patrol’s Corruption Problem”
• APM Reports: “Not Trained to Not Kill Most states neglect ordering police to learn de-escalation tactics to avoid shootings”
• Chicago Reporter: “When Chicago cops moonlight, no one is watching”
• The Intercept: “Police in Georgia are turning traffic stops into the first step toward deportation”
• TechDirt: “Taser/Axon Separating Defense Lawyers From Body Camera Footage With License Agreements”
• The Crime Report: “Big Brother Online: Policing and the Cloud”
• Post-Gazette: “Woodland Hills school employee charged with assaulting student”
• More Post-Gazette: “Weirton officer fired for not shooting man sues city”

Trump Criminal Justice Watch

• Washington Post: “Sessions weighs return to harsher punishments for low-level drug crimes”
• More Washington Post: “Sessions issues sweeping new criminal charging policy”
• Lawfare: “The Nightmare Scenario: Trump Fires Comey, the One Man Who Would Stand Up to Him”
• The Atlantic: “The Convenient Dismissal of James Comey”
• Fox News: “Krauthammer: ‘Implausible’ That Comey Was Fired Over Clinton Comments Last Year”
• POLITICO: “Behind Comey’s firing: An enraged Trump, fuming about Russia”
• BuzzFeed: “A Former Top Official Cited In The DOJ’s Comey Memo Calls Firing A ‘Sham'”
• Associated Press: “AP Exclusive: US digs for evidence of Haiti immigrant crimes”
• CNN: “US-Mexico border apprehensions hit 17-year lows”
• Scientific American: “We Must Strengthen the ‘Science’ in Forensic Science: A national commission created to improve the reliability of forensics has been dealt a possibly fatal blow”
• The Crime Report: “Criminology Leaders Assail Trump for ‘Uninformed Policy Initiatives'”
• MassLive: “Massachusetts lawmakers consider bill forbidding inmates from working on President Donald Trump’s border wall”

The Appeal is a weekly newsletter keeping you informed about criminal justice news in the commonwealth of Pennsylvania and beyond. It is written and compiled by Matt Stroud, ACLU-PA’s criminal justice researcher.

If you have suggestions for links or criminal justice-related work that you’d like to highlight in The Appeal — or ways that we might improve — please email Matt Stroud at mstroud@aclupa.org. And if someone forwarded this email to you, and you’d like to receive it every Friday, you can subscribe here.

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