Tort claim filed by Joe Anybody for police taking his camera
After having my camera taken and then later ticketed by the police for filming them as they stopped two innocent men on a downtown sidewalk, I am filing a tort claim with the city. I am hoping to promote policy change in the way videographer (as well as average joe citizens)are treated who film the police while they are on duty and are in the public arena
An update on the situation where ( i ) an independent media videographer (and average joe citizen) who filmed the police in downtown Portland, had his camera confiscated and was issued a ticket. The ticket based on ORS 165.540 was for illegally recording a conversation without consent. An hour later, they gave me back the camera complete with my tape. That was on March 25 2008
Portland Indy Media link regarding this is here: http://portland.indymedia.org/en/2008/03/373979.shtml?discuss
It was weeks later at court that I was told: "The charges were not being pursued by the DA at this time." They said I should "check back-in, in a couple weeks"
I did and they were not pursuing it.
The fact of "no charges" is great, of course. Only now, I have to worry for two years that they "might change their minds."
That is real comforting. (not)
Let me explain a couple things that were interesting about what happened that day.
All I did was film two police officers (latter it became three) on a public sidewalk from a safe distance away. I never disturbed nor acted threatening to that police situation that I was filming. As an independent video / film documenter for peace and justice events that happen here in Portland, I felt I was acting perfectly within my rights to video tape this public happening.
I was never told to move back or turn off my video camera. But when for lack of better words "the shakedown" was over... the officer I first seen walking down the street from the beginning, came over to me... and I soon became the criminal. I was not worried at the time I filmed, nor concerned, for I was doing nothing wrong, and I knew that it is not against the law to film the police. Yet I was the one who was singled out and then told to "Hand over my camera."
I think this public servant / police officer really didn't like the fact I filmed him as he was hassling / questioning / shaking down / doing the ... don't I know you / kind of thing?
I also think he used on me as an excuse, the old "secret wire taping law." For when he says, "Are you recording my audio?" well ... . "Yes" I say, "I am video-recording.!" The officer was setting the stage by this question to lead me into the setting that "He didn't know I was recording his audio (communications) and that would be the crime." At the same time, I also say, "That would be both, audio and video." (For I can not even if I wanted to, turn off the audio on my cam recorder which is the same for most video common video recorders, camera phones, etc there are out in the publics hands, the video and audio are all one function.)
The irony of him referring to the fact that I am "audio recording him" is in that: the camera in my hand was significant knowledge that I was audio recording and video recording it was no secret and would have been obvious to anyone seeing me do this. This was not a microphone up my sleeve. The beat around the bush question "Are you audio recording me?" is pertaining to the hidden wire concept or the hidden tape recorder as when one surreptitiously records in a clandestine way without permission or a warrant.
This situation was far from that. In fact as he took the camera from me. I mentioned to inform him and his partner, "I am the media I am a journalist, I am documenting and reporting events for peace and justice." He pretty much ignored me. His partner told me the name of their supervisor (I asked). And that was whom I was heading to see next just as soon as I was done with the media intimidation and shake down at hand at the moment.
I was shocked to see my camera in the officer's hands.
As I stood there, watching, dumbfounded, I felt robbed and violated. I felt at that time, as if the constitution was being raped and I had to stand there watching it happen. How can the cops just take my camera from me? Was this all because I filmed him being a tough bully to two innocent people?
That decision, to take my camera by the officer was not about law and order. It was about intimidating the media and silencing anyone who wanted to document how the officer was treating citizens on the streets of Portland. (A side note is that the same officer was filmed by an Indy videographer where he was caught on film (!) as he fired rubber bullets into a crowd of Bush protesters sometime around the late 90"s right here in Portland.) But I digress.
Twenty minutes latter, I was walking briskly and directly to the city police station. It was when I was three blocks away that the same two cops roll up next to me and say " You going to the station?" ... I say "Yep!" They say, "Meet us in the lobby" ... . Heck, ... I think ... this all seems kind of hooky and unprofessional ... now what?
What happens in the station lobby is basic, it is another twenty minutes of waiting before the one officer who took my camera comes out to talk to me. I tell him I didn't know I was interfering and that I am sorry if I was. I tell him I didn't think I was doing anything wrong by recording him in public. I let him know in all sincerity that I did not want to get in their way nor cause them a problem while I was documenting. I thought we both understood each other pretty well, after a 10-minute talk, but as I was handed my camera back, I also was handed a ticket for violating ORS 165.540.
He just couldn't let it go, he was intent on leaving me with troubles for my filming.
The officer seemed like he wanted me to go away with a lesson.
And that would be ... "Don't film the police!"
It will end up costing you money in fines and your camera or you may be heading to jail... . For the maximum fine is one year in jail and a few thousand dollars. It seemed to me that was his message, and that he wanted me to remember it. If I ever planned on filming the police again, unless I was far away down the street (That was the officer suggestion of where I could safely film from, when I asked him what he recommended) or from across the street, otherwise I would be asking for trouble.
Now need I remind anyone about the Rodney King filming incident, where a citizen filmed the police and was able to share their account of what happened. By their right to free speech and the ability to film the police without it (them) being considered illegal, citizens were preserving justice and making the police accountable for their public actions as well as expressing them selves as protected by The Bill of Rights.
And now we have the recent episodes of journalist in St Paul at the Republican Convention, who also seem to have very similar cases going on. The police there are arresting, taking cameras, and hurting journalist physically and intimidating them for being there and documenting (as the free press should be able to do.) The condition and atmosphere of this incident with me in Portland, was not quite the same, my case happened a quite street in downtown Portland, where I was getting my constitution of free speech and free press violated. (Let's not forget the two innocent civilians I filmed, their freedoms were being violated as well) How do I know they were innocent ... Well they were stopped, hassled, and searched ... not sure what the probable cause was (if any) and then they were let go ... for which I say " they were innocent."
The way the police were treating them is evident in my video, and I didn't like how it was playing out. They both were not charged nor was anything found in the "shakedown." The irony is there was no crime that warranted the two to three officers stopping these individuals in the first place. And ( i ) filming this charade irritated the officer, whereupon I, then became "The criminal" ... So in reality all this resulted in was me (independent media) being the fall guy for a frustrated bully cop, who was using a vague outdated policy that suppresses freedom under the pretense I was illegally recording a public event.
Let me mention a few more things.
The stop of these two men, if I may I point out, is that the one singled (and referred by the officer) out as a drug dealer was of darker skin, and for all purposes of constitutional freedom, seemed unwarranted and very unethically?
I also know that the from the beginning these two were being followed on foot, it looked serious from the determining actions of the peace officer as he strode beside me coming up from behind the two men on foot. The two civilians where were peacefully walking up the sidewalk 50 feet ahead, so I started filming. It just seemed out of place, and odd to see the officer on foot following the two men as he was doing when he walked past me.
The men from the very beginning, tell the officer "Hey look officer you are being filmed!" The first officer even informs officer two by saying on video "Looks like we are being filmed!" Officer number two say's (also on camera) "I see that!"
So that in itself should have relieved the question or surprise to them that they were being recorded (yes audio & video) without their knowledge, for I was out in open view!
Now all that leads us to the next part, of the here and now action I am taking.
I have just filed a tort claim with the city of Portland, here in the second week of September in 2008. It is filed in pursuant to ORS30.275
I am asking for three things. The first two are minor nominal money charges for the hassles of mine, camera confiscation, tickets, courts, etc. I am (only) asking for 100$. And the other monetary demand is for my attorney who is representing me, his fee is for the time and efforts to pursue this and represent me. That said, that is the only monetary amounts we are asking for. Sadly both these monetary amounts will be paid, (If I win my case) out of city taxpayers' money. The mistakes made with callous or reckless intent, is paid for by the citizens of this city in fines and lawsuits, making policy that explains the guidelines clarifies everyone's boundaries, can only benefit all parties involved. Public accountability and upholding the constitution is one of the requirements I am sure that is required to work for our city in a public servant role. As well as having a legal policy regarding video recording would be just as prudent and expected in these days .
That is why the third and most poignant part of my tort claim will be for the city to develop a policy that honors the constitution, as well as my rights and others that are filming in the public arena, the police, or public servants while they are working or doing their jobs as public servants. My sole purpose here in this tort claim is to change the outdated policy that allows the city police to intimidate and tickets citizens or journalists who are filming them in the public arenas. This intent is to change the policy to respect the constitutional rights of free speech, free expression, and reporting what happens in or on the public streets.
I am asking the city (police) by the means of a lawsuit to "Change your policy regarding videographer and independent journalist (or even just a joe citizen) who are filming the police in public". The outdated law that is being "twisted" and manipulated to ensnare or to intimidate those who legally film, police on the streets, and are filming within their constitutional right, needs to be addressed as a sound, clear, and updated policy. Years ago in 1991, when Tom Potter was the police Chief there was a policy that he had enacted that covered this very issue. But years latter and a few new chiefs at the helm the chilling reality is that there are some police who are scaring and using their authority to miss represent the intention of a law (as in this wiretapping law) and use it to quell those who may be documenting their unethically behavior or what is happening, be it right or wrong. There may even be a few officers as well as videographer's who naively don't know what the vague law of today really encompasses when it comes to filming and recording in public.
Now just as the video I made shows the police treating the two men with rather brass and callous intentions, it could also have served to document the civilians dong something bad or wrong at the time just as easily. Now obviously that is not even the facts, for this case, but ... had something happened to the officers at that time, my video documenting would have collaborated and possibly helped the police see exactly what happened.
For as I mentioned near the beginning of this article, and as I told the police that day, "I am filming for peace and justice!" I am not out on the streets trying to cause trouble. I was documenting what happens with my video camera. I am concerned about media right, civil rights, honesty, peace, and justice is documented and shared with the community. As I also stated my intentions were not to get in the way or cause any disturbance.
My tort claim in pursuant to ORS .275 is to ask the city of Portland to change their outdated policy.
My final thoughts regarding the importance of filming and the ability to document the police while they are on duty in the public is that when you see my video then read the police report ... it is two different stories. The police reports that the two men were "suspected of buying drugs" ... . Not sure how their suspected of that assumption?
The report says they became defensive and confrontational, in the video that scene is probably where you can see they (citizens) are being "accused of buying and selling drugs!" Also as you see in the video they deny that charge. They are vocal about "not doing that" in which the officer accuses them of doing. You can't blame them, they are being accused with out provocation by the officer who is following them.
The report tells that the people watching (me and others next to me) from 30 feet away are threats ... yet the video doesn't show that they were in any way a threat at all. The officers report says he pushed the civilian because he wouldn't move back (Yet in the video you see the man step back, as the officers steps "towards" him to push him) The report says the officer "Couldn't move back because the trolley line passes behind him by just a few feet" (?) Yet in the video, the trolley is over to his right parallel and he could of "backed up for 20 blocks or more. For he was not blocked nor trapped by the trolley/ street" as he misinforms the readers in his report. As I said my video, show otherwise.
My point is that the video tells the story in real way that seems to not be explained nor reported in the police report correctly. The video is a way for me to document what ( i ) see and to convey it to others, which is my free speech. The reason I feel this is important to do is that as you watch this video it shows an interesting version that is very different that what the officer claims he was doing or what he says happened.
The fact that I didn't like what seems unjust, and is in my video I captured, seems not right nor ethical, I should have the freedom to record and comment on it. My video is not manipulated; it is a real reproduction of the event at the time. It is an important and legal for me to have the freedom to film with out being threatened for my liberty or my property. My video was seized and watched which is a violation of my rights to privacy of my persons, papers, and affects guaranteed by The Bill Of Rights.
I gave no permission for my equipment and specifically my tape to be looked at.
I can see why this officer didn't want me to film. But now its time to ask: "Was that right for that officer to do that to me." Or we can develop policy that is respectful of the Constitution and the Bill of Rights especially regarding my free speech and move along?
Simply that can be done by the city just contacting my attorney to work out the details. If for example they don't want to work out a policy on this, we mention in our tort claim that we will be filing a federal claim under 42 USC 1983, but as I mentioned that would be only if the city is unwilling to address this. My sincere hope is that we can work together on this.
I have a good feeling they will want to address this. I had at one point introduced my self to the police chief when I (out on the sidewalk) ran across her at peace protest, standing outside of city hall (a month latter after the camera issue) and ( i ) introduced myself as the guy who had his camera taken by one of her officers. She (Chief Rosie) affirmed that she thought the law for video recording and the use of the audio wiretapping law as it was applied to me should be revised and modified to the current times at hand with so many cameras in public. (Those are my words regarding quoting her comment to me)
So I hope in that vain this ends with progressive change and respect.
My intention is to get the city to make a policy change, regarding filming the police while on duty and in public, that is respectful of the constitution, and the citizens of Portland. A policy that affords free speech and free press protections as one would expect based on the constitution. As well as allowing for a policy change that promotes open, honest, and transparent public service, to we the people of Portland.
The Portland Independent Media Readers will be first to know the outcome.
The original video of me filming the police stop and having my camera seized is here:
Archived links and a variety of related videos clips of this issue are on my website here:
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