Monthly archives: January 2012

January 31st, 2012

Memphis Police Delete Photos From Journalist's Cell Phone Camera 0

By Carlos Miller

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The problem with the mainstream media is that too many reporters don’t know the actual law when it comes to police confiscating cameras or deleting photos.

And they think the only way to find out the law is to ask police.

Take the recent case of Memphis police confiscating a cell phone from an ABC news photographer and deleting his photos after he snapped photos of them issuing a parking ticket to a local business owner.

The writer of the story insinuates that this is common practice and warns readers that this could happen to them, which is actually true as unlawful as it may be.

The writer also contacted an attorney who said that police are not allowed to delete your photos.

But the writer still didn’t appear convinced.

Maybe I’m reading too much into this but I wish she would have been a little more authoritative with this story rather than take a passive approach, which doesn’t do much to educate citizens and police on the actual law.

It’s not an opinion. Police cannot delete your photos.  So she shouldn’t treat it as if it were an opinion.

Fortunately, the National Press Photographers Association is not treating it as an opinion and fired off a letter to Memphis Police Director Toney Armstrong, informing him that the incident was a “blatant abridgement of (the photographer’s)  First and Fourth Amendment rights.”

The ABC reporter, meanwhile, is still waiting for Armstrong to confirm whether it is legal for police to delete footage.

ABC 24 News is still waiting to see if MPD Director Toney Armstrong will comment on whether or not it’s legal for officers to delete photos.

We already know it’s not legal. What we need to do is ask Armstrong how he plans to deal with the officer who broke the law.


Please send stories, tips and videos to carlosmiller@magiccitymedia.com

January 30th, 2012

Chicago's Top Cop Speaks Out Against Illinois' Unconstitutional Wiretapping Law 0

By Carlos Miller

Even Chicago’s top cop is speaking out against the state’s Draconian wiretapping law that makes it a felony for citizens to audio record police in public without their consent, making it almost inevitable that the law will soon change for the better.

However, it is not clear if Chicago Police Superintendent Garry McCarthy is aware that the law permits police to record citizens.

After all, the man who took the helm less than a year ago after he was hired from the Newark Police Department insinuated that the law affects officers as much as it does citizens.

That, of course, is not the case. The Illinois wiretapping law allows police to record citizens. It just doesn’t allow citizens to record police.

But as long as he’s speaking out against the law, we’ll take whatever we can get.

The police unions are against changing the law, but McCarthy has already proven not to sway under their pressure.

According to the Chicago Sun-Times:

As a police official in New York and New Jersey, McCarthy found it helpful to record officers politely but firmly informing protesters that if they did not end their protest, they would be arrested. That prevented brutality suits against his officers, he said.

McCarthy planned to use the same approach with the Occupy Chicago protesters.

“The first night, after we made 147 arrests, the goal was to assure that what was recorded was the fact that, ‘Excuse me, sir, you are in violation of the law; You are about to be arrested; You have the opportunity to leave. If you choose to leave, you can leave now. If you choose to stay, you will be arrested.’ Which was the warning that we gave every single one of the 147 people that were arrested that night,” McCarthy told a panel at Loyola University on Wednesday.

“The next day, I said, ‘Let me see the videotape.’ All I saw was this:” McCarthy pantomimed officers mouthing words to protesters.

“This is a foreign concept to me,” McCarthy said. “This is problematic, because the idea was to show exactly what we were doing was giving people warnings . . . It was an enlightening moment for me. . . . Illinois is the only state in the union that has such a law.”

So judging by the above text, it appears as if McCarthy is under the impression that police are not allowed to record citizens.

Unlike New Jersey, Illinois has a two-party consent law, which requires all parties (not just two) to give consent to make the recording legal.

However, there are eleven other states that also require all parties to consent to the recording, so Illinois is not unique in that regard.

But the other eleven states include an expectation of privacy provision that allows citizens to record others, including police, if they are in public. Massachusetts forbids the recording of police and citizens in public if the recording is being done in secret.

But Illinois’ law makes it a crime even if a citizen is openly recording a police officer without consent.

The law is clearly unconstitutional, which is why it has already seen some challenges in recent months, including being currently reviewed in an appeal.


Please send stories, tips and videos to carlosmiller@magiccitymedia.com

January 29th, 2012

Florida Man Confident Confiscated Video Will Prove His Innocence 0

By Carlos Miller

 

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Steve Horrigan, the Photography is Not a Crime reader who spent 24 hours in jail on a felony wiretapping charge last week, is confident the video he recorded will  not only prove his innocence, but it will prove the North Port police chief is a liar.

But now it’s just a matter of getting the police to return his phone to him.

Chief Kevin Vespia responded to my email on Saturday with his officers’ version of the story, claiming that Horrigan was not arrested for recording, but for obstructing a criminal investigation while police officers conducted a “high risk stop.”

I included that email along with my response in the original story under “update”.

Since then, Horrigan sent me an email with a detailed response to the chief’s claims.

I’ve posted that email in its entirety below.

He also uploaded a couple of Youtube videos describing the events that night, which I’ve posted below.

Chief Vespia also sent me another email, which I’ve reposted below Horrigan’s email in an attempt to bring all versions into the open. This email doesn’t really say much, other than apologizing for calling Corey.

I give Vespia credit for responding to my emails with his side of the story, but that also places him at risk for looking like a fool if the video proves his officers lied.

And his version still doesn’t justify arresting Horrigan on the wiretapping charge.

Here is Horrigan’s email:

Carlos, First I would be a fool to relate to you anything that isn’t true because there is a VIDEO of this complete event and this police chief would seem to me to be a little silly to be making these accusations without viewing the footage. He has my smart phone in his possession. I would even be willing to go to the police station and give him my charging cable so that he could view the event in its entirety. I would even be willing to turn on the phone and show him how to view the footage. Hello…. You don’t need any he said, she said or three versions of the story.

1)     He states that the officers told me to leave or stop recording 10 to 15 times. They never told me to leave the area I think he might have told me to go home once then but I’m not sure.  And I’m not sure that he even told me to quit recording or I’d be arrested. He certainly never asked if I was audio recording and never told me to stop audio recording. This can be confirmed on the footage. The officer did seem quite annoyed at me for recording but even told me once that I was allowed to record and that can be confirmed from the footage and or the dash cam videos.

2)     What is interesting to me, when I was recording from across the street which was a two lane road with a median that there was a female walking her dog up and down the sidewalk within four feet of the automobile that was supposedly a high risk suspect who was eventually arrested for having a marijuana cigarette. There were several citizens milling around the scene much much closer than myself. All of this can be confirmed by watching the video.

3)     I did move a little later to the other side of the street on the public sidewalk at least 35 feet (I measured the distance yesterday, it’s helpful when the police encounter is right behind your house) from the officer and about 100 ft from the stopped vehicle. I wanted to get closer to the stopped vehicle, but in deference to staying out of the way of the officers and their vehicles, I stayed 100 ft away from the stopped vehicle.  I did this because the drug dog showed up and I wanted to get the footage of the drug dog going around the car from that angle which is my right. At that time, there were several citizens standing close to or near the officer in question on the other sidewalk who were much closer than myself. You can see this on the video.

4)     When I moved over to the sidewalk, the officer immediately turned around (35 ft away from me, he was about 65 ft from the stopped vehicle) and said “It is illegal to videotape the police.” His exact words he walked up to me, I didn’t walk up to him. Two other police officers surrounded me, from the rear and the left. The one officer said give me your id, which I left at home, I voluntarily gave him my name and birth date and that I would decline to answer any other questions until I was represented by an attorney and he then stated that I was under arrest. And that’s the whole thing in a nutshell.

5)     I talked with the three officers later at the Venice station. The officer stated that he thought that he was being fair with me but that I wouldn’t do what he told me to do. I asked, “Did you arrest me for videotaping the police?” he stated, yes, that is why you were arrested. He didn’t say anything about the obstruction or “safety” situation. The three north port officers that were there and myself were having a debate about the legality and the 1st Amendment rights of a citizen to videotape police and I really believe that they believe that I was breaking the law by videotaping them and one even mentioned that the other officer could sue me individually in civil court for videotaping them. And since everything at this jail is being recorded the police chief should be able to get the video and audio of that conversation. That would have been Jan 25 sometime between 8:30 and 11pm. I’m sure the chief can obtain that video. This is also why I believe that this is such an important case and event. These police officers adamantly believed that private citizens can be arrested for a felony for recording them in a public place, performing public servant duties, by a journalist who is at least 100 ft away on a public sidewalk from a stopped vehicle during a traffic stop. We are going to have to get some kind of guidance from the court on this issue. And by the way, How can a Felony be secondary to a misdemeanor?

6)     While I understand that this police chief is going by what his officers are telling him, he would be wise to at least view my footage so that he could confirm or deny the accusations of his officers. The video doesn’t lie. And there was only one officer who talked to me a Sgt. Sirriaca?, the others never paid any attention.

7)     And finally, Carlos, after reading and commenting and digesting court cases and everything from Photography is not a Crime for the last two to three years. Do you think (I know what you think) that I don’t know enough not to obstruct the police and what my rights are as a photojournalist, no matter how amateur? I am confident that after everyone has a chance to view the footage that you will see that I acted according to the law and that I acted in a professional manner and never was unkind, disrespectful,abusive or profane of any law enforcement officer and that I never got in the way of their activities, other than to record public police activities on a public sidewalk at least 100 ft away from the traffic stop. I guess that was my crime.

Steve Horrigan

And here is Vespia’s email:

Carlos

Thank you, I apologize for the typo, I was performing extreme multi-tasking when I responded as I had a few emails regarding the issue. Unfortunately, you received my response to Corey and I believe, Corey received my Carlos response. I appreciate you taking no offense to it as it was not intentional, simply human error.

As far as having further discussion regarding this topic, I would be happy to talk with you further, however, I will not discuss this particular case any further as criminal prosecution is still pending. I would be available to talk about the general topic and if you are interested, feel free to contact me at one of the numbers listed below Monday – Friday 8 am – 5 pm. I am currently out of the office until Wednesday, however, if you have a date and time you are available to discuss further, please let me know. Stay safe!!!

Kevin

Update: The National Press Photographers Association fired off a letter to North Port Police Chief Kevin Vespia protesting the arrest of Horrigan, who is an NPPA member.

Also, PINAC reader and Florida public records advocate Joel Chandler obtained Horrigan’s arrest report.

Chandler said police made unlawful redactions to the arrest report.

They have redacted the name of the individual who was witness to the arrest of Steve.  Sounds like they are closing ranks and putting up the blue wall of silence.

January 29th, 2012

Houston Police Accused Of Beating Woman Trying To Record Them 0

By Carlos Miller

A woman said three Houston police officers beat her up after she tried to video record them arresting her husband Friday night.

Annika Lewis also said the officers took the memory card out of her phone.

Lewis and her husband are black. The three officers are white.

The incident took place a day after black community activists held a town hall meeting urging residents to video record police brutality in their neighborhoods.

According to KHOU:

There was growing outrage Sunday among Houston’s black community over another case of alleged police brutality – this time involving a woman under five feet tall.

Annika Lewis, 26, claims several police officers punched her in the face when she tried to record video on her cell phone. She said several officers were beating her husband after a traffic stop.

“I know my rights,” she said Sunday at a news conference outside her southeast Houston home. “I know that I’m able to record. That’s why when they told me to put that damn camera away, I told them ‘I’m standing on my property and I have my camera in my hand and I’m recording you beating my husband.’”

Lewis’ husband, Sebastian Prevot, was taken into custody early Friday morning and charged with resisting arrest. Houston police declined to comment on his case and said the incident report would not be available until Monday.

January 28th, 2012

Florida Man Arrested On Wiretapping Charges For Recording Traffic Stop (Updated) 0

By Carlos Miller

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A Florida man was arrested on wiretapping charges after video recording police making a traffic stop from across the street, spending 24 hours in jail and setting the stage for a potential lawsuit.

But first, Steve Horrigan, must find a lawyer and beat the criminal felony charge hanging over him.

Horrigan, a regular Photography is Not a Crime reader who goes by Steveo, said North Port police confiscated his phone and have yet to return it to him.

While the Florida wiretapping law requires consent from all parties being recorded, it makes an exception when there is not an expectation of privacy.

Furthermore, Horrigan says he was so far away from the officers, that he wasn’t able to record their audio, making the arrest even more unlawful.

This is how Horrigan described his experienced in an email:

I was recording a traffic stop with my smart phone across the street from my condo. There were six unmarked police cars stopping a small Toyota like car. It wasn’t a felony traffic stop, but there were at least 10 cops milling around the scene.(North Port, FL agency North Port Police)  I was recording from across the street when one of the cops took umbrage with my recording. He walked up to me and told me it was too dangerous to be there and that I should go home.

I went over to the public sidewalk about 150 ft from the car that they had stopped because I wanted to get video of the drug dog going around the car. The same cop came up to me and told me that it was illegal to video tape the police (his exact words). He asked me for ID. I gave him my name and BD and then said that I would prefer to remain silent and needed a lawyer.

They placed me under arrest, took my phone and took me to jail. They charged me with 934.02 1B (I think) Unauthorized interception of communication and resisting arrest before being arrested. The judge almost denied the complaint because the PD said there was no probable cause to make the arrest, but he said that the State Attorney would have to figure it out and gave me ROR. The original bond was $1750. I was in jail about 24 hrs. Jail here isn’t too bad, food is horrible though. The other guys were happy to eat it though.

I’ve been following your web site for about three years and have digested just about everything you have put out since your first bust for resisting arrest before being arrested. Hopefully, I’ll get my phone back with the SD card intact. One of the cops shouted at me in the police car that, “Now I guess you’ll do what you’re told” I couldn’t help thinking, gee, I wonder what Carlos would do. I can’t send you the footage, obviously, but for some reason I don’t think that they are going to delete the footage or take the card. I told the PD that I wasn’t close enough to get any audio from the cops anyway and my video would prove that but according to the cops the footage was obtained illegally, so it wouldn’t be admissible, so they should give me my phone back. She couldn’t ask the judge for my phone back yet.

I told Horrigan that I would have done the same thing he did. Once police make a decision to arrest you, the best thing to do is remain professional just in case they are recording you.

Let them be the unprofessional ones, which seems to be the case here. Send Chief Kevin Vespia an email, letting him know that we are keeping our eyes on this.

If there are any lawyers in the area (southwest coast of Florida) who are interested in taking his case, please leave a comment here or email me.

UPDATE: I had sent Chief Vespia an email with my story, suggesting it my be time to retrain his officers. To my surprise, he responded to my email with the police version of the story. He also called me Corey.

He said Horrigan was also charged with obstructing a criminal investigation as well as wiretapping.

He said that Horrigan walked up to the traffic stop, which differs from what Horrigan said. I called Horrigan for comment but he did not answer.

Vespia also said the wiretapping charge was secondary to the initial charge of obstructing.

But he doesn’t acknowledge that even if Horrigan was, in deed, obstructing the investigation, there still would be no basis for a wiretapping charge because the cops did not have an expectation of privacy.

Obstructing is a misdemeanor. Wiretapping is a felony.

It’s obvious the cops wanted to teach Horrigan a lesson, even if they had to manipulate the charges to label him a felon.

And for that, they should get sued.

Vespia also cut and paste an article from a local newspaper about the incident, which I was not able to find online, but Horrigan did mention that the Sarasota Herald-Tribune was looking into getting the dash cam video from the incident.

I cut and pasted his response in its entirety along with my email back to him below:

Corey,

 I certainly appreciate your reaching out to us. I am sure you are aware that there are 3 sides to every story. Below is the local article related to this case and you are welcome to obtain a copy of the arrest affidavit from our Records Section by contacting Records Supervisor, Jennifer Harrison at 941-429-7307 or jharrison@northportpd.com . I can assure you that recordings occur everyday and are usually not an issue. An issue arises when subjects do not heed the officers warnings and begin to encroach upon them as they are executing a high risk traffic stop of known gang members. I am sure you are aware of the officers killed in the line of duty statistics which can be viewed at http://www.odmp.org/search/year?year=2011 . We try to ensure our members go home safely every night.

 In regards to this particular case, Mr. Horrigan refused to comply with the officers orders and was arrested for obstructing a criminal investigation. The charge of interception of communication was a secondary offense that Mr. Horrigan was charged with. As always there are more sides to the story, and if Mr. Horrigan would have stayed across the street and video recorded, therefore obeying our officers and not jeopardizing their safety, he would have had no problems. The recording is not what got him arrested initially, his actions by encroaching the officers and interfering with the them during a high risk traffic stop did. Mr. Horrigan’s actions required our officers to divert their attention from the high risk stop to Mr. Horrigan’s failure to obey their numerous commands and approach upon their positions. Fortunately, the occupants of the vehicle during the high risk stop were also arrested and I am proud to say our members went home to their family’s safely that night and able to return for their duty shift the next night to ensure our citizens are protected.

 Please let me know if you have any questions or concerns and please stay safe.

Kevin

   NORTH PORT — A man recording a high-risk traffic stop by members of the North Port Police Department was arrested Wednesday evening after refusing to comply with officers’ instructions to stop.

   According to an NPPD report, just before 7 p.m. Wednesday near the intersection of Herbison Avenue and South Biscayne Drive, several officers were in the middle of a traffic stop of known gang members in relation to an active criminal investigation when Stephen Phillips Horrigan, 57, of the 4900 block of South Biscayne Drive, began to record the incident on his cellphone. 

   The report states officers repeatedly told Horrigan, who was standing in the median about 15 feet away, to stop shooting video footage of the incident for safety reasons, but also because he was impairing officers’ ability to focus on the investigation. Horrigan moved away, according to the report, but then returned, standing behind NPPD vehicles and continuing to record.

   Officers told Horrigan to stop 10 to 15 more times, but he told them, “This is a free country,” and didn’t comply, the report states. When officers asked Horrigan who he was, he gave them his name and date of birth, but refused to provide more information. He then approached one officer and showed him   he was still recording in violation of the interception of oral communication statute, according to the report.

   Horrigan was charged with resisting an officer and illegal interception of communication/eavesdropping. He was released from the Sarasota County Jail after posting $1,750 bond.

Here is my email I sent back to him.

Chief Vespia,

Thank you for your response. I posted in its entirety in the article I wrote along with some added commentary.

Even if Horrigan was obstructing, there was still no basis for the wiretapping charge because the officers did not have an expectation of privacy.

Just last week, a judge convicted a man in Tampa for obstructing because he did not move back far enough from the officers while he was recording them.

If what you say is true, then Horrigan will also be convicted of obstructing.

But there is no way he will be convicted on wiretapping. And the officers should have known better than to charge him with that.

Because now it comes across as if they were trying to teach him a lesson by charging him with a felony in addition to the original misdemeanor.

And that is where your officers lose credibility.

Again, I do appreciate your response and I would love to continue discussing this on a professional level as I have been writing about these issues for five years now.

BTW, my name is Carlos, not Corey. No offense taken.

Here is an update with Horrigan’s response to the chief’s claims.


Please send stories, tips and videos to carlosmiller@magiccitymedia.com

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