September 22nd, 2013

San Diego Cop Shoots Man in Incident Caught on Citizen Video as Cops Manage to Seize Control of the Video 22

By Carlos Miller

SDPD

 

A San Diego cop shot a man Saturday in an incident reportedly captured on camera by a witness.

However, police are now in possession of the video and it’s not exactly clear from the story if they confiscated it or if the witness voluntarily handed it over.

Odds are, judging on countless other similar incidents over the last few years, he was pressured into handing it over.

According to the San Diego Union-Tribune:

Witness Joey Ortega said he and a friend, who are visiting from Sacramento, were getting out of their car when they saw the officer approach the man, gun drawn.

Ortega described the man as possibly a transient in his early 30s. He said the man was pacing back and forth, about 15 to 20 feet from the officer.

“The guy said, ‘I’m not going to drop it,’” Ortega, 26, recalled.

“He looked agitated, like twitching,” he added.

Yono said the man raised the scissors and started to throw them, and that’s when the officer fired.

“I couldn’t tell if he was going to throw the weapon down, or at the officer, or what,” Yono said.

Ortega’s friend, Robert Roddick, 23, filmed the shooting on his cellphone. The police will review it for evidence.

A man named Justin Jones who left a comment in the story, claiming he was also a witness, stated the following:

I witnessed the whole thing. The guy way away from the officer was trying to walk in the other direction had DROPPED what he had in his hand and was still shot!

So perhaps now is a good time to remind people that police do not have a legal right to confiscate your camera without a subpoena or a warrant.

The only exception would be under exigent circumstances where the cop has a reasonable suspicion that the witness is going to either destroy the evidence or disappear without leaving cops a method to contact them.

A citizen wishing to be cooperative with the investigation can voluntarily provide police with a copy of the video while insisting on maintaining the original.

And that citizen will have the right to upload the video to Youtube, even if police try to dissuade him from doing so under the old, “jeopardizing the investigation” argument.

The United States Department of Justice confirmed this in a set of guidelines it released last year as to how police are supposed to deal with citizens who record them in public:

Because recording police officers in the public discharge of their duties is protected by the First Amendment, policies should prohibit interference with recording of police activities except in narrowly circumscribed situations. More particularly, policies should instruct officers that, except under limited circumstances, officers must not search or seize a camera or recording device without a warrant. In addition, policies should prohibit more subtle actions that may nonetheless infringe upon individuals’ First Amendment rights. Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices.


Send stories, tips and videos to Carlos Miller.

To help support the blog, please click below to make a donation or purchase Photography is Not a Crime apparel on PINAC Nation.





  • alicelillie

    This is why I want an app for my iPhone that *automatically* (no button to push or anything but it is just part of taking stills or vids) sends pics and vids to my e-mail box. Maybe also the push of one button and it goes to my Facebook timeline as well. Then if anything goes wrong such as the iPhone is stolen or tampered with, I still have the pics.

    • SunwolfNC
      • alicelillie

        No big surprise. I am a bit new to iPhone, plus am behind the learning curve these days. What I really need is a fountain of youth app LOL! I will check out your link later on. Thanks.

    • Ian Battles

      Bambuser will do this. You’re live, on the internet the moment you press record, and you can set it up to post a link to the video on your facebook so all your friends can actually witness your police encounter, as it’s happening!

      Might be nice to have a few dozen witnesses, eh?

  • Fernando Collado

    If you obtain video from an iPhone and the phone is still turned on. Your video file will automatically be back up to the iCloud and If you have an Android phone it will be automatically be backed up to Google+.

    • matism

      Of course, neither Apple nor Google would EVER consider deleting a file should they be requested to do so by “Law Enforcement”.

  • Burgers Allday
  • steveo

    I know that most of us videographers are not legal eagles. Most people aren’t. Most lawyers and judges aren’t. But if you go out to copwatch, I think most of us have to be prepared to have our cameras confiscated in a tense police encounter.

    But we also have to be prepared to be in court the next morning, filing emergency motions to have whoever took the recording device, give it back. This is a right now thing. This isn’t a let’s see if we can get Mickey involved or the ACLU or any of that mamby pamby crap. You have to show up at the chief judges office and ask how you file an emergency brief, so that you can get to a judge under the constitutional principle that the government committed prior restraint. They will listen to you, because they have to. This is the only issue that the SCOTUS will take up on a direct writ of Mandamus from some lower court. Prior restraint is the most serious violation of the 1st Amendment and the higher courts sit up straight when you bring it up.

    • rick

      I was hoping you would comment because you have mentioned this before. Can you post a link to an example of a prior restraint emergency brief?
      Grazie

      • steveo

        This one is pretty good, most of what’s in there I copy and pasted from the DOJ and from other web sites. I used this to get my camera back. I actually had a detective come over to my home at 7 am to tell me I could get my camera back, that the prosecutor ordered him to make sure I got it back, right now.

        http://flliberty.files.wordpress.com/2012/03/prior-restrain.pdf

        • rick

          Is this something the “average rick” can take to court and file or is a lawyer needed to argue it before a judge?

          • steveo

            People may not agree with me, but I’ve always believed that the law is for everyone. The law is not a “convenience” for judges or people who went to law school. But you do have to have some pelotas to be a pro-se litigant because you are in their territory and they believe that they own that territory and that you are an interloper.

            So, do your research, stand up straight, look the judge straight in the eye and know what you are going to say. Just remember, A person’s depth of conviction will convince most people more than the height of their logic.

            Also, can I take this to court and file it without a lawyer? Clarence Gideon wrote his brief on some used paper bag from a prison kitchen and he changed the way defendants were represented in every court in the US.

  • HappyGramps

    When the video is part of the crime scene, LEOs may lawfully take it as evidence. This differs from prior restraint or censorship.
    .
    .

    • PalmettoDude

      They can’t confiscate without a warrant unless very specific circumstances exist (i.e. the video is the crime – upskirting).
      I believe Steveo had a great thread on this, maube in the Forum?
      In short:
      – Officer, why don’t I email you a copy right now? What’s your email?
      – I have a laptop in my car, why don’t I copy the video on a USB stick for you?
      etc…

      If the officers don’t want to hear anything about it, it strongly indicative that the intent is indeed suppression and prior restraint. Might want to talk to ask for a supervisor and chat about that.

      Of course, that’s assuming that you do want to “help the investigation” but retain your camera & footage.

      • Proud GrandPa

        Thanks. I remain skeptical but will view with an open mind. Perhaps Steveo is correct.
        .
        Anyone know the link to his post? Or where I can confirm what PalDude and Steveo claim? Currently I believe they are mistaken and confusing two situations. Would like to know more. TX anyone.

        • rick

          USDOJ’s interpretation of this matter can be found under part E.

          http://static.photographyisnotacrime.com/wp-content/uploads/2013/02/USDOJ-on-recording-cops.pdf

        • PalmettoDude

          @rick provided a great link!

          Let’s be clear that one of the big assumption here is that you are NOT under arrest. If you are, then most of what follows gets tossed out.

          So, just a bystander, filming and minding your business and not heckling the police (however legal that is, 1st amendment et. al)…

          Police can’t just confiscate “for evidence” without a warrant. The “for evidence” is a red herring. It doesn’t give them any more power to confiscate. Let me confiscate for “not evidence”? Police *can’t* know that there is evidence on your camera unless they look. So it’s really a fishing expedition.

          As the DOJ memo makes clear, they *can’t* look at the camera without a warrant. If they do, that would be grounds for suppression of the evidence at trial (but of course, proving they did might be challenging unless you have one of those smartphone app that takes photo when someone tries to access the phone).

          Even with *exigent circumstances*, they MUST apply for a warrant expeditiously once the property has been secured.

          In order to get a warrant, you have to show *probable cause*.

          Yes, they could detain you until they get a warrant if they are afraid you might “destroy” the evidence. The case in California with the shooting where officers came into the house at 3AM and staid until they got the warrant at 10AM is an example – Although there where such egregious abuse there (a bunch of officers, they did not let the person upload the video, etc…) that I believe they opened themselves up to a lawsuit.

          Of course, most officers (or they supervisor should) realize that very few judges should issue a warrant for the camera of a non-involved bystander. The moment you offer to share freely (I’ll give you a copy, let me email it, etc…) then they have much less of a leg to stand on and no judge worth their salt would issue one if they are informed of your willingness to share.

          Especially with photo/video, seizing it and removing your ability to *broadcast* it with the world until you retrieve your equipment *IS* prior restraint.

        • Nemo

          Say that you are a witness to a very mobile scuffle involving several parties, perhaps in the parking lot of a small bar, and your car is in the parking lot.
          Would the police be justified in towing your car “because it might contain evidence”? Anything could have happened, in the confusion, after all, and even if the doors are locked, you could have locked them before the police arrived.

          Secondary question: If a crime occurs in which the /police/ are potential suspects, is it reasonable to surrender potential evidence to the suspects or their accomplices?
          It is well-known that the police do not police the police, to the point where they hate and lie to ISD if at all possible without getting caught. With that in mind, when video involving potential police lawbreaking exists, is it reasonable to hand over the evidence to the alleged defender, and if so, why?

      • steveo

        I can just relate my experience that when I brought up prior restraint and started up on the court cases, the prosecutor and the judge got real big eyes. 1st Amendment stuff comes up so infrequently in court that nobody really knows alot about precedent but most individuals that have graduated from a US law school, do know that the SCOTUS has never upheld a prior restraint.

        Also, using a camera for a crime like child pornography or upskirting is not what we are talking about. Newgathering is totally different.

      • crazyassmofo

        The phone is not the evidence but the footage is the evidence.
        Good to have the ability to hand them an immediate copy.

    • steveo

      Wrong… If you file a motion the next morning in court, the judge will have them return it to you immediately. The prosecutor might claim that under the principle of the best evidence rule that they need to retain the original. But you can waive that and allow them to use a copy or you can have them give you a copy for publication, either way, they have to return it now.

      The Secret Service politely asked Abraham Zapruder for a copy of the 27 seconds that he took of the the Kennedy Assassination.The most viewed amateur film in history. He gave them 2 copies. Zapruder sold the original to Life Magazine for 150K and gave the money to the widow of JD Tippitt the leo that Ozwald gunned down.

  • Ray186

    I can hear the news conference now. “Video tape? What video tape?”

Javascript is currently disabled. This website functions better with Javascript. Please enable Javascript in your browser.
Internet Explorer is out-of-date. Please upgrade your browser or install Google Chrome Frame for an improved web browsing experience.
%d bloggers like this: