Advice on How to Record Abuse of Police Authority May Be Useful for Miamians and Protesters

November 1, 2011 by David S. Seltzer

Here in south Florida, we recently made the national news when a citizen filmed alleged police brutality, only to narrowly avoid having the video destroyed when the police allegedly attempted to destroy his cell phone. So, as a Miami-Dade criminal defense attorney, I was pleased to see a recent piece giving average people advice on how to record police actions on their phones. The article, from Wired.com’s How-To Wiki, discusses the legal rights of people filming police actions as well as the practical aspects of taking the video and then spreading it across the Internet. Perhaps most importantly, the article ends with the advice to get a good attorney if you’ve been arrested, good advice no matter whether you were a bystander caught up on a police action or a protester intentionally standing in harm’s way.

The piece starts out by noting that each state has a different law on whether citizens may record the police with a small camera. Here in Florida, recording anything that takes place in public should be legal under a provision of the law allowing recording without the other person’s consent, as long as there is no “reasonable expectation” of privacy. Media reports in the wake of the arrest of Narces Benoit have given expert opinions saying that this extends to taping police actions — but the Florida courts have not made a definitive ruling. The article goes on to advise would-be camerapeople that they are free to refuse consent to a police search of their person, car or home, and have the right to remain silent. You may also leave if you are not under arrest. Those who are able to keep the video out of police hands are advised to put it online as soon as possible and consider filing a complaint about any mistreatment.

As a Fort Lauderdale criminal defense lawyer, I’d like to talk a little further about how these rights may come into play in real life. In the Narces Benoit case, Benoit claimed he was a bystander who happened to film police shooting at Raymond Herisse, who died last May after police fired on him for driving his car into their ranks. Once police spotted him filing, Benoit said, they arrested him and his girlfriend at gunpoint and attempted to smash the phone while yelling “You want to be [expletive] paparazzi?” The police department denies that the phone was damaged. In other states, bystanders who happened to film police actions have been arrested for refusing to hand over the video and their videos confiscated; the charges are usually dropped or never brought. This means people who film police cannot expect to be left alone, even though they are usually not breaking the law. It also means that they should attempt to hide or upload the video as quickly as possible.

If you’ve been arrested in south Florida for exercising your legal right to record public police actions, don’t wait before you call Seltzer Law, P.A. for help. Based in downtown Miami, we represent clients facing all kinds of charges — from serious, violent crimes to charges that may seem more like a pretext for getting rid of someone police don’t happen to like. In cases like that of Benoit, defendants often face charges like interfering with police activity, resisting an officer or wiretapping. Our experienced south Florida defense attorneys can often have charges like this dropped early in the process by letting prosecutors know we understand our clients’ legal rights and are fully prepared to defend them. If that’s not possible, we will mount a strong defense before a jury, which is not likely to be impressed by alleged abuse of police power.

Seltzer Law, P.A., offers free, confidential case evaluations, so you can contact us anytime to discuss your rights and your legal options. For a free consultation, send us an email or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).

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