Philadelphia cops were arresting two men on a darkened street for disorderly conduct aka “contempt of cop” when one of the men being arrested called out to a passing bicyclist, asking him to record the interaction.
The cyclist, Jean-Jacques Gabriel, wasted no time in stopping his bike, pulling out his smart phone and video recording on Facebook Live.
The cops then began harassing him with their usual bullying routine; accusing him of obstructing traffic, even though Gabriel was standing across the street on his bicycle in a bike lane.
When Gabriel continued recording, the cops then threatened to confiscate the phone as “evidence,” which is another tiresome routine that cops still use, even though the law is very clear that they are only allowed to confiscate cameras under “exigent circumstances,” meaning they would need to have a reasonable suspicion that he was going to delete the footage.
But history shows that destroying cameras and deleting footage is what cops do once they confiscate video of questionable arrests, which is why it’s best never to hand over the camera under these circumstances.
The Philadelphia cop, who identified himself as “Ortega,” badge 2418, was in street clothes with a badge around his neck, and was very cocksure about his right to seize the man’s phone.
He even ordered Gabriel to turn off his phone, which would have defeated the purpose of preserving “evidence,” but we know it was never about that anyway.
But Gabriel was even more confident about his rights to not hand over his phone, so he refused to do so, asking Ortega for a supervisor.
Gabriel remained calm, speaking truths, while the cop remained high-strung, spouting lies about him having the authority to hand over the phone over.
They went back and forth for a few minutes, each of them acting convinced that they were right.
That is, until Gabriel informed the cop that he was recording on Facebook Live, a function that allows users to live stream video on their Facebook timelines.
And it was that mention of Facebook Live that the cop stopped harassing Gabriel for his phone, realizing that his actions were already being viewed by people on the internet.
So Ortega resorted to accusing Gabriel of obstructing traffic again, which Gabriel laughed off because he knew he wasn’t obstructing.
The cop then walked back across the street as one of the men being arrested began complaining about being stopped for being black in a white neighborhood.
The incident took place Tuesday night and the story has since been picked up by Philly Voice, which interviewed some legal experts on the issue.
A pair of Temple University Law professors said citizens who are not interfering with police activity have an “absolute right” to videotape officers in public. They cannot seize a recording device without probable cause to believe the footage captured a crime and reason to fear the recording will be deleted, destroyed or lost.
“Theoretically, if I was using my cell phone camera to capture a drug sale, or a murder, it’s a little different (than recording an arrest),” said Jules Epstein, a civil rights attorney and the director of advocacy programs at the Beasley School of Law. “Then my phone camera has evidence of a crime. Hopefully, they would ask cooperatively. Technically, they could probably seize it. But then they have to get a warrant to play what is on it.”
“Even in the wake of that ruling, there’s still no law making it a crime to record the police. We have continued to urge people to use their power to record the police.” – Molly Tack-Hooper, ACLU attorney
Police making an arrest, as in the footage captured by Gabriel, is not evidence of a crime, said Epstein. His opinion was shared by Louis Natali Jr., a criminal defense attorney with decades of experience.
“It sounds to me like the cops realized this was somebody they couldn’t buffalo,” Epstein said. “They backed down. But the real points here are citizens may do this. They should do it in a way that’s not aggravating a situation. If they have evidence of a crime, hopefully they’ll be good citizens and cooperate.”
The issue on whether cops are allowed to confiscate cameras should have been settled in 2012 under a United States Department of Justice directive which making it clear that cops are welcome to ask citizens to voluntarily hand over their cameras in case they contain evidence, but citizens are only required to hand over their cameras under exigent circumstances, which can be read more in detail here.