Nashua police win civil suit brought by woman who recorded them
Case: BLEISH v. MORIARTY (D.N.H. 7-6-2012)
Summary: Protesters were video recording arrests made a demonstration. One woman was arrested for disorderly conduct, but eventually acquitted after a bench trial on that charge. She sued the police for the arrest, alleging that she was arrested for recording the police. In the civil suit, the magistrate judge decided that the video recordings (plaintiff’s and others) showed plenty of probable cause for the disorderly conduct arrest. Police got summary judgment in their favor on all counts.
Comments: This case brings up a sort of fundamental problem with recording the police, and I don’t see an easy solution to the problem I am about to describe. The problem is deciding whether police can seize cameras any time they are making an arrest that is being recorded by a regular citizen. On the one hand, if the policemen are bad policemen doing bad things on the recording then it is obvious that they can’t be trusted with the camera that is recording them. On the other hand, if they are good policemen then they really do need the video recording to show things like resisting arrest or to defend against excessive force claims.
My opinion: My opinion, at least for now, is that recording parties should be allowed to keep their cameras, as long as they identify themselves. Primarily I feel this way because I don’t think potential destruction of any evidence of any potential crime* is an automatic “exigent circumstance” that excuses the warrant. On a more practical and less legalistic level, an unknown person who is video recording is less likely to have self-interested reason to destroy the video than do the police involved in the arrest. There is good chance that the person making the recording merely wants the truth to prevail. I know that when I record police, this is what motivates me personally. If my recording helps police then that is great. If it is detrimental to the police then that is fine with me, too. I understand that not all people who record police are as neutral and detached as I like to think that I am, but, taken as a class, I think that people who record police are more likely to be neutral and detached (and therefore less likely to destroy evidence) than are the police themselves. It should also be noted that a regular citizen is more likely to be investigated and charged with destroying evidence than a policeman is, and this should matter in the probabilistic calculus. As a final point, if police really want video evidence then they can make it themselves and not rely on citizen recorders to make it for them.
* I think that some type of potential destruction of evidence of some types of crimes might best be regarded as an exigent circumstance, but I don’t think there should be a blanket rule that any potential destruction of any evidence is an automatic exigent circumstance. I look forward to further development of the law on this particular point.