Home / California Deputy Detains Man for Video Recording Arrest, Accusing him of Possibly Plotting Murder

California Deputy Detains Man for Video Recording Arrest, Accusing him of Possibly Plotting Murder

 

An Orange County sheriff’s deputy detained a man for more than 12 minutes because he was video recording her and another deputy making an arrest at a gas station.

The deputy pretended she was only looking out for the best interest of the suspect, who was getting arrested for unknown reasons.

The citizen told her he was also looking out for the suspect’s best interest, ensuring he doesn’t wind up the victim of police abuse.

Michael Schmidt said in his Youtube description that the incident took place two days after Kern County sheriff’s deputies beat David Silva to death, only to confiscate cell phone cameras from witnesses who had recorded the beating.

The deputy first demanded his identification, even though he was not doing anything that would give her reasonable suspicion that he was committing a crime.

He was, however, sitting in the driver’s seat of his car, which gives her a little more legal leeway in obtaining his identification, even though it was clear she was not doing it as a result of a traffic infraction.

“I don’t know what your intentions are, sir,” she told him. “Why are you videotaping this gentleman as he is getting arrested?

“How do I know you’re not going to post this on Youtube or somewhere public where his family is going to get hurt because of this incident?”

Schmidt asked if he was free to go, but she informed him that he was being detained, even though she couldn’t give a clear reason as to why.

“Maybe you’re here to kill this gentleman or kill one of us,” she said.

Or maybe he was just trying to prevent them from killing the suspect.

“I’ve just seen a lot of abuses by people in your organization,” he  later said. “You guys make up laws a lot of times.”

“I don’t make up laws,” she responded.

But she obviously does make up laws because she detained him illegally.

If you find yourself in such a situation, please make sure you get their name, especially if they’re insisting on knowing your name.

OC deputy

About Carlos Miller

Carlos Miller is founder and publisher of Photography is Not a Crime, which began as a one-man blog in 2007 to document his trial after he was arrested for photographing police during a journalistic assignment. He is also the author of The Citizen Journalist's Photography Handbook, which can be purchased through Amazon.
  • Eric Wallace

    Isn’t it amazing how the person wearing a gun and most likely a body armor and a helmet seems to be so fearful that she thinks there’s a plot to be assassinated

    • JustaVetSailorfromPennsylvania

      First thing is that your biggest mistake is that you talked to her. You do not have to answer any questions from the Badged Uniformed Fascist Thugs ask of you. Then you invoked your 5th amendment rights, great, but then you continued to talk to her. Also invoke your 4th and 6th amendment rights. Just tell them, You don’t answer questions – Period and stay quiet.

      Also, at the end of the encounter, you should have offer her a sanitary wipe so she could wipe her mouth. Why? Because the only thing that was coming out of her mouth was a bunch of shit.

      • Proud GrandPa

        He should not have talked to her beyond the required self-identification. It was tedious and embarrassing to listen to the photog as he unnecessarily tried to persuade her he was innocent when he didn’t need to.

        .

        She was playing him and provoking him to keep talking in hopes he might say or do something unlawful. It was a provocation by LEO and perfectly legal if the citizen consents, which he did. He passed her “test”, and she eventually let him off the hook. It was all unnecessary.

        .

        Take home lesson is don’t waste your time passing a test when you are presumed innocent already. Or if I were the photog I’d just have identified myself by holding the driver license to the inside of the window and by giving her a photo copy of my license and my attorney’s name and number with the window opened only an inch, and she’d have left me alone to take more pictures. If she asked more questions, I would ignore her with the windows up. I would not have left. I would have stayed and photographed to my heart’s content. And of course I’d be cordial and polite.
        .

      • Dan Matthews

        Probably would have been a good idea to keep your window rolled up higher as well.

  • Ron

    “No I will not put my hands outside the vehicle like some damn fool”

  • Tijuana Joe

    Infuriating. What an ignoramus that lady is. He should have cut to the chase and said “Look, You have not articulated any reasonable suspicion of a crime therefore I respectfully decline to give show you my ID. Deal with it. If you want to arrest me for that, so be it, but be advised, this illegal detention is all captured on video.”

    • Difdi

      Problem: An officer does not have to tell you why they are doing anything. The fact they don’t tell you does not create a lawful justification to resist arrest or flee from custody.

      The first point in an arrest that an officer is REQUIRED to tell anyone anything about why the arrest was made is when s/he fills in the arrest report paperwork at booking.

      If the officer gets chatty and tells you why they are detaining you or arresting you and it is legally BS, guess what? In most places it would STILL be illegal to flee from custody or resist arrest.

      The only time you could actually just leave an arrest/detention legally is if you asked the officer if you were being detained and s/he said you were not.

      • Tijuana Joe

        I never said he should “flee.” I said he should cut to the chase and
        tell her he’s not going to comply (ID) or even talk. That forces her to make an important decision. Arrest him or leave him alone. If he got arrested for
        this horseshit he’d have a nice lawsuit.

      • tiny

        your 100% wrong, i will not waste my time to even explain. your a total waste for not knowing. figure it out and stop your bullshit! BTW-you a leo/PIG?

        • Difdi

          You’re obviously new here. You’re so badly off base, it’s kinda cute. Why don’t you read previous posts a bit before posting yourself, so you don’t make a complete and utter fool of yourself again, ok?

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            LOL, I don’t know Difdi.

            You sort of sound like a cop.

            ROTFL

          • Dan Matthews

            ROTFLMAO!

        • JdL

          your 100% wrong

          You’d be taken more seriously if you didn’t make first-grade errors in grammar. “You’re 100% wrong” would be correct. Ever study contractions? They’re your friend, if you learn how to use them correctly.

          You’d be taken even more seriously if you didn’t completely misinterpret Difdi’s post. He’s about ten thousand light-years from being a LEO-lover.

          Dare I ask what “tiny” refers to? Brain? Some other organ?

        • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

          ROTFLMAO. Difdi? An LEO/pig?

          I’m laughing so hard I’ve got tears in my eyes.

          No, Difdi is not an LEO. But he is absolutely correct on how he explained it. An officer doesn’t even have to tell you that you are being detained, so long as a reasonable person would know that he is not free to leave. The officer also does not have to tell you the reason, or can lie to you about the reason.

          LOL, this is too rich. Difdi a cop.

          Hey Difdi, welcome to the club!

          LOL.

          • David

            It was TWELVE minutes long because this guy — who thought he’d be able to smart mouth his way through a police encounter — got all squirrely once approached.

            On on hand we have him pleading the 5th, then on the other he’s engaged in conversation placating the officer’s requests. Also, the fact that he was recording from his car gave the officer the right to request his ID. Operating a motor vehicle, cough up the ID.

            He should have gotten out of his car and filmed from the pump or something. Fuck him, he’s a moron.

          • steveo

            I think he did do a good job of cornering her into admitting that she was only interested in censoring the content of his video recording. He could have gone a little further and said, “If I turn the camera away from your detainee and your scene, would that be alright? Or, if I turn off the camera, can I watch? She even said, “I don’t care if you watch, I only care if you record.” Total content censorship.

          • Voice-Of-Concern

            Everyone has a first time and sometimes, a first few times they deal with such a confrontation. I thought, under the circumstances, I thought he did fine. hopefully, he will be inspired to do more video in the future, and learn from this event.

          • steveo

            the why I’m being detained question; courts probably don’t require leos to answer, but I’ve found that many, if not most agencies require their officers to :
            Provide their name upon request.
             If in plain clothes, identify themselves when
            taking action.
             Inform a person about the reason for being
            stopped or questioned.

            from Sarasota Police Dept. manual; (seems like good policy and community relations)

            I know that most police are dealing with mostly scumbags, day in and day out, so it’s difficult to know who the enemy is from the good guys, but it would seem to me that a cops job would become impossible if everyone they talked to remained silent. I’m not sure that’s the kind of response they want from the majority of their contacts with the public. I think it’s better to be truthful and upfront with legitimate inquiries like this from a citizen being “lawfully?” detained.

  • steveo

    I think we’re past the point of analyzing these encounters and discussing the legality of the situations. The leos know that recording them is legal. They don’t care if they pounce on the rights of photographers. They are going to do whatever they have to do to get videographers to quit recording them. It’s not going to happen. When leos don’t respect the law, we don’t need to give them any respect, either.

    Just say: ” Don’t talk to me. Don’t talk to me. I don’t want to talk to you. Beat it.”

    • Difdi

      As ECLS is always reminding us, committing a crime requires mens rea — someone who has a good faith belief their actions are legal and justified probably isn’t committing a crime when they commit an unlawful act.

      But when someone is pretty obviously grasping for any excuse to step on the law, no matter how silly, stupid or flimsy, it’s pretty obvious they are either mentally incompetent or are acting in bad faith when they commit their unlawful acts.

      • Chris McKenna

        As I recall, not all crimes require mens rea. There are crimes that used to be called “strict liability” crimes when I went to law school.

        • Difdi

          I realize that. But if robbery, B&E, murder and violation of rights are all only crimes if the intent is there to commit a crime, then it’s hard to imagine what a police officer might do that would be strict liability.

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            Chris is right, but they are normally regulatory or traffic type offenses. For example, DWI/DUI is normally a strict liability offense, no seat belt, etc.

            Felonies (well, with the exception of statutory rape) normally have to have a mens rea component.

            Plus, cops aren’t normally trained on mens rea. They are just taught about the elements, and most don’t have a good working knowledge of that.

          • Chris McKenna

            See, I couldn’t remember exactly what kind of crimes were strict liability! Just goes to show, you can always learn something!

    • Proud GrandPa

      Yes, LEOs know photoing them is legal. You are correct.
      .
      Surely LEOs know that people may photograph them… even those LEOs guarding the NSA building. That’s not what they care about. What they want to do is panic any unstable, anti-government types into saying or doing something for which the LEOs may make arrests. This was merely a fishing expedition.

      .

      A nervous anarchist or mad bomber or Mohammedan Bin-Laden type would start yelling Ollie Awkbar or something crazy and give himself away. Those guys are just nuts, and it is possible to crack them, when you play them right.

      .

      Now if the LEOs had actually prevented the photog from his work, we would have a constitutional problem. Constitutional problems are resolved in courts. That is why I am optimistic about the future of photo rights.

      .

  • JdL

    “Maybe you’re here to kill this gentleman or kill one of us,” she said.

    Yet another cop wets his/her pants at something that no one else in the world would consider threatening.

    What is it with the extreme cowardice of cops nowadays? This wouldn’t have been believable just a few years ago.

    • Dan Matthews

      “Keep an eye on me and you will see there is no truth to your false statement.”

    • Dan Matthews

      “Actually officer, it is a known fact that the OCSD has killed more people than have 99.99%+ of U.S. citizens, military service aside, and this alone tells me I should be more concerned about YOU taking MY life or that gentleman’s life, for no justifiable reason.”

      I know, don’t talk to the cops AT ALL, but if you want to get in a FACTUAL jab, this fits the bill.

  • General Injustice

    https://www.facebook.com/OCSheriff

    Time for some action, folks.

    • Howard

      Looks like they are removing the critical postings that some have made regarding this incident. I saw three earlier today and now they are gone.

      • Ron

        Isn’t that unconstitutional?

        • Guest

          No

        • Voice-Of-Concern

          low class, yes. unconstitutional? not at all.

      • Guest

        They did more than that. After I posted several more times linking to this story, they now shut down all commenting. They’d rather have 0 future comments than a few critical ones.

  • guest

    Dude…you are so weak in asserting your rights. Better learn up a bit more and then tackle the big boys.

  • JustaVetSailorfromPennsylvania

    Another point, if you don’t wish to provide ID do not take any videos from inside a motor vehicle.
    Being in a motor vehicle makes the Badged Uniform Fascist Thugs job easy as you must provide your license upon request them. So if you not in a motor vehicle they cannot just demand your ID.

    • Voice-Of-Concern

      That’s one more reason I like the phone holder I listed above. It makes the act of recording appear much more psssive, so the leos have less to respond to.

      • Difdi

        And given how few of them seem to be able to look at a camera and identify it for what it is (instead of a maybe-gun, maybe-knife, maybe-banana, etc) the fact it’s not in your hands might cause them to be unaware a camera is pointed at them at all.

    • Dan Matthews

      But was there really a lawful reason that he had to show her an I.D.?

      • JustaVetSailorfromPennsylvania

        He admitted to driving. He was in the car behind the wheel. Then to top it off with all the talking he did to her said that he just drove in to get gas. So it is fine hair, but I’d have to give this to Helmeted Badged Uniform Fascist Thug, not that I’d want to give her the time of day.

  • Don’t talk to the cops

    “I DON’T ANSWER QUESTIONS.”

  • steveo

    It’s interesting right about 9:45, she says that she believes that she is in charge of what content is news and what content isn’t news. She has set herself up as the backstop of censorship. I think that this is one of the really big problems with some leos. They actually believe that it is in their right to censor.

    Would she come up to him if he was filming her in a parade or a medal ceremony or even in a courtroom, if the judge allowed recording? No, this is total content censorship.

  • Seeker103

    If she had not intervened this would be a boring video of
    some guy sitting on the curb in handcuffs. It probably would not have been
    posted and if it was probably not watched all that much. There is not real
    story without her harassment. She interjected herself into the situation and
    became the story. Now the video will be widely watched. And her effort to quash
    the video and guard the arrestees’ privacy completely backfired. Nice work.

    • steveo

      I’m not saying that this is the whole point of copwatching, but it is certainly one reason to copwatch. I copwatch because I want them to get used to being recorded, so that they talk to each other and the sub-conscious finally kicks in to where it tells them, “I better not do this shit, someone might be recording.” A lot of these clips are about as interesting as watching a faucet drip until the leo goes off on it.

  • CopSkeptic

    Just goes to show you shouldn’t talk to the police AT ALL. She keeps luring him in with more questions in response to his partial answers. Don’t give them ANY fuel. It would have been a lot smoother if he said nothing.

    • steveo

      He got the better of her. He said, I gave you my name isn’t that enough ID? She said, “No.” Well, the law says it is, and case precedent says it is, And there is no law in the US that requires us to carry government ID. He got her to admit that she was only interested in halting the video taping of their arrest scene.

  • milwaukeeprogressiveexaminer

    This is the most disgusting abuse of authority I have ever seen. This deputy should be immediately fired. He, even if suspected under reasonable suspicion of an actual crime, has a 5th Amendment right against self incrimination. People don’t have to answer if they have weapons, do cops even know about the 5th Amendment, let alone the First Amendment? Idiot Cop, he doesn’t have to tell you if he has weapons and if he doens’t that isn’t probable cause or even reasonable suspicion. This cop either doesn’t care about the Constitution or she is just incompetent. What a disgusting video.

  • Dan Matthews

    Police tactic seems to be prevelant in many of these videos, they never let the suspect finish talking without interrupting them. Cheap attempt at breaking the suspects train of thought and keep interjecting questions to control the conversation.

    Another good reason why one should keep quiet.

  • Tony Loro

    Video changed to private..

  • Voice-Of-Concern

    What kind of bullshit is that, asking him where works. I was pleased that he refused to provide more info, asked to leave & why he as being detained. I too wish he had gotten her info.

  • Voice-Of-Concern

    I use this, to hold my phone in the windshield, so I don’t have to put my phone on my seat. http://amzn.to/16gizCx It fits a wide range of phones. also handy, if using phone for GPS

  • Michael Ross

    Am I the only one who looked at the pics and saw Judge Dredd? :-)

  • Joel

    BULL SHIT ! Protect that guy …. Not ! …. Warren V Dc.

  • Hesienberg

    This happen to me once. I gave the LA deputy misleading information who or where I worked because it was none of his dam business. I give him my id under duress, he de not give me a reason for being detained. I did not have a camera to protect me. I think see was trying to reach for a loitering or trespassing, but she had no proof. So that is why she does not state them, but vague refer to them.

  • Ron

    I AM … THE LAW

  • Dan Matthews

    “Officer, do you feel obligated to uphold the Constitution of the United States, and please don’t answer my questions with questions, a simple YES or NO will do.”

    “And until you answer that question so that I know what your intentions are, I am not answering any of your questions.
    I am requesting a shift supervisor be called so that I am assured of my Constitutional rights without bias.”

  • Saul B

    8:49: “They post it on YouTube and other Internets.”

    Carlos, is PINAC hosted on one of those other Internets?

  • Tijuana Joe

    The “where do you work question” is creepy. I got that from some cretin
    in Boca Raton, just for walking down the street. I was working (med research) for the Federal Gov’t at the time and he told me I must then be Navy, Army, Marines or Air Force.That’s the type of intellect we’re dealing with.

    The “work” question supports the “Occupy” notion we’re all supposed to be under the24/7 supervision of some corporate overlord and never have the audacity to (gasp!) assert our rights.
    The good news here, that lady becomes famous as a candidate for International Bitch of the Year…

  • amaroq18

    This is scary. I heard them repeat the name of my city over the radio, meaning this mega cunt could be lurking around my neighborhood.

  • Jim

    I’m not American so it doesn’t really apply to me but I don’t understand why the response to “What are you doing?”
    isn’t “gathering news and pursuing happiness”.

  • steveo

    The best answer is I’m doing a journal or a documentary. Then, they’ll ask you, what documentary or Who are you with? Why are you a govt agent in charge of censorship? Your boss gives you the job to decide what is newsworthy and what isn’t? I’m not going to tell you again, if you want to play deaf and dumb, go ahead.

    If you talk to these people long enough, you’ll find out that censorship is the main reason that they are detaining you.

  • Guest

    “The best answer is I’m doing a journal or a documentary.”

    Nope. “I’m exercising my Constitutional right to remain silent.” That’s the one and only best answer, every time.

  • steveo

    Not if you want to set up a prior restraint argument later. I would want to let the leo know that I’m newsgathering (they may not know the significance of that, but the courts do). If they interfere with newsgathering activities, they have to come up with some time, place and manner arguments as to why they interfered. Here it doesn’t seem like there are any TPM issues.

  • steveo

    So, Ms. Leo, do I need a license from you or the King to publish my news on Youtube?

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    I would go even further and state that “this is for dissemination to the public.” That magic phrase invokes the protection of 43 USC 2000aa, which means that they have to use a subpoena to obtain the video instead of seizing it.

    It also invokes the newsgathering protections that Steve pointed out.

  • harry balzanya

    Officer until you phrase your order as a order im not obligated to obey you I can not obey a question phrase your order as a order then we can move forward. May I see your id ? Give me your id. One ends with a ? And is not a order. The other is. if you have lawfull orders to give me do so wish to leave I do not consent. Get your supervisor

  • Voice-Of-Concern

    Put a sticker or something that says

    “all recordings made by this device are for dissemination to the public.”

    then place it on the phone or camera. that way, even if it is not password protected, you are placing a layer of protection on the device.

  • Dan Matthews

    And if they ask you who you are gathering the news for, are you obligated to answer?

  • rick

    How about “this recording is for public debate?” Does that work?

  • Guest

    You are never obligated to answer any question asked by a police officer except for stating your true full name when ordered to identify while detained.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    No, you are not.

  • Dan Matthews

    Officer: “Why are you video recording us?”

    You/Us: “I am gathering newsworthy information for public dissemination. Some people are claiming that LEO’s are violating the Constitutional rights of videographers when confronting them. I’m making these recordings to prove them wrong.”

  • Ron

    Like she cares one hoot about the suspect sitting on the ground.

  • Nick

    This is a bitch thug cop. After he says he is remaining silent she should have not kept answering questions!!!! Unlawful bitch should be fired and put in jail!!!!

  • steveo

    Depending on your Federal Circuit, FL is in the 11th Circuit Court of Appeals, leos should assume right off that recording in public is protected by the 1st Amendment (Smith v. City of Cummings, GA), so notifying them shouldn’t be necessary, but CA may not have a ruling yet, I think the 9th district. SCOTUS hasn’t ruled on this because no appellate court has disagreed with another.

  • El Guapo

    It’s amazing how fast this guy went into automatic sheep mode. Moral of the story…do your research on how to handle these situations. Seriously…go practice in the mirror. If you watch other videos, you will even see camera owners get so excited they start to shake, prompting the officers to ask of a medical condition or usage of drugs. More fuel for them.

    **Speaking of medical…here’s a tip. The reason why we don’t check pulse rates with our thumb is because the thumb has it’s own pulse. So holding a camera/phone, as we often do with our thumbs for support + excitement = shaky footage. Along with practicing in the mirror, experiment with camera placement (horizontal view of course) and practical options of camera usage. The better the recording, the less of a chance the courts will miss something important if it comes down to your footage saving your rear against the words of a shady cop.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    California is in the Ninth Circuit.

    See Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). The Glik decision cited Fordyce to support the position that an individual has a right to video record a public official in a public place.

    Even though the case originated in Washington state, it covers California.

  • ccbarrpics

    Not sure about your state Guest, but here in PA, we are not a stop and identify state so even if being detained we are not required to provide identification according to the PA ACLU chapter.

  • AlexSmith

    What is his options to seek restitution against the LEO for a possible unlawful detainment? Can he go to court?

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Sure. It is not real practical though. What damages did he suffer? Just about every lawyer would decline the case, and if you do find one to take it, I can almost guarantee that he won’t take it on contingency.

  • laserDliquidator

    I would say to them – “the day you video record all your arrests and actions – is the day my camera to keep you kosher will no longer be needed”

  • Fotaugrafee

    DAMMIT, video is private. :(

  • Guest

    My guess is that the police complained to have him remove the video from public view.

  • Dan Matthews

    All the more reason to keep it public.

  • Guest

    He went into sheep mode in the video and answered all of the officer’s questions. I guess they figured he would back down again if they threatened him. It looks like they were right.

  • Ryan French

    Haha, I’m going to keep quiet on Boca Raton…. :-)

  • Dan Matthews

    They obviously had is name, address, etc, so it wouldn’t have been difficult for them to contact him. With his car description and license plate number they could have stopped him a number of times for some made up infraction.
    It’s unfortunate they “got” to him.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Is there any reason, other than just speculation, to believe that “they” got to him?

    It seems to me that people are making unwarranted assumptions. There are any number of reasons that it may have been taken private, most of which would have nothing to do with the police.

  • Guest

    “making unwarranted assumptions.”

    Assumptions? Yes. Unwarranted? That’s a matter of opinion.

  • Dan Matthews

    Agreed. It was speculation on my part.
    Then I guess “Death threats” would also be a bit much.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    OK. What supports that assumption? Is there any history at OCSO of witness or citizen intimidation? If so, where?

  • tester12

    Video is private? can’t watch

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