The recent video that captured three Crawford County, Arkansas, police officers restraining and beating a man illustrates the social value of video recording the police in public.
The cell phone video shows two officers brutally striking and kicking the man while the third officer is restraining him on the ground.
The unidentified woman recording the incident can be heard yelling at the officers. When one of the officers realized their unlawful use of excessive force was being recorded, he pointed a threatening hand at her while screaming an inaudible demand.
This citizen/police encounter, like the one 17-year-old Darnella Frazier witnessed in May 2020 when she captured video of Minneapolis police officers killing George Floyd, illustrates not only the value of citizen oversight of police conduct but also the need for each person to know their rights when it comes to recording encounters with the police.
Know Your Rights
The essential question is whether a citizen can legally photograph or film police misconduct.
The ACLU of Texas offers these guides and suggestions:
- Taking photographs of things visible in public spaces is a constitutional right, including taking pictures or filming police carrying out their official functions.
- The police may not generally confiscate photographs or video without a warrant.
- The police may not delete photographs or video under any circumstances.
Audio recording is a different matter, however.
Some states have wiretapping and eavesdropping laws that can restrict the audio recording of police in public when the officer has a reasonable expectation of privacy—a legal determination made given the circumstances of the audio recording.
Texas, however, is a “one-party consent” state which permits a person to record their own audio exchange with the police.
Texas Penal Code Sec. 16.02 prohibits intercepting communications without the consent of one of the people involved in the communication. Nothing prohibits a person from recording their voice during a verbal encounter with the police because the police do not have a legitimate expectation of privacy in such encounters.
In fact, in 2017, the Fifth Circuit Court of Appeals in Turner v. Lieutenant Driver held that the First Amendment guarantees a citizen the right to film and audio the police, subject only to narrow restrictions. “[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs…Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy.”
Given this broad constitutional and legal authority to both film and record both lawful police activities and police misconduct in public places, there are caveats a citizen should know when undertaking this kind of “government oversight”:
- Be careful: The police might illegally harass, detain, and even arrest citizens who do not comply with their instructions to stop photographing, filming and recording their activities.
- A citizen may not violate any law while engaged in such oversight, such as trespassing on private property while filming or taking photographs.
- The oversight must not be intrusive to the point that it interferes with an ongoing legitimate police operation.
- The citizen should remain at a safe distance from the police conduct.
- The citizen should not try to conceal their oversight activity.
If the police attempt to harass or detain the person engaged in government oversight, the citizen should:
- Never resist the police.
- Remain polite and calm.
- Ask the officer, “Am I under arrest or free go?”
- If the police do not permit a citizen to depart, request an attorney, remain silent, and refuse to answer any questions without an attorney.
- If possible, write down everything that transpires, including the officer’s name and badge number. Memorialize in writing the time, date, location of detainment, and activity that resulted in detainment.
Citizen oversight of the police is a valuable safeguard against excessive use of force, lethal and non-lethal force, criminal activity, corruption, and violations of standards of police conduct.
The Minneapolis police officers who murdered George Floyd would never have been held accountable and prosecuted in a court of law had it not been for Darnella Frazier’s brave citizen oversight by video recording their conduct.
Video Recording Police Misconduct Can Save Lives
Carrie Jernigan, the attorney representing the 27-year-old man (Randal Worcester) beaten by the three Arkansas police officers, had this to say about the unidentified woman performing citizen oversight in that police encounter:
“… I think she could have saved his life.”
The officers stopped their beating of Worcester as soon as they realized they were being filmed and recorded.
This woman’s brave citizen oversight may well have not only saved a man’s life but most assuredly got two of the officers suspended and a third placed on administrative leave.
Arkansas Gov. Asa Hutchinson has assured the public that there will be a thorough investigation into the incident. IN addition, The Civil Rights Division of the U.S. Justice Department has opened a preliminary inquiry to determine if the officers violated Worcester’s civil rights.
These kinds of police encounters go unreported each year because they are carried out in secret, unnoticed by the public, but fortunately, there are some citizens brave enough to provide the necessary oversight to make police misconduct known to the public.
We all owe our respect and admiration to these brave citizens for their courage.
The three Arkansas officers who brutalized Randal Worchester belong in prison just like the Minneapolis officers who murdered George Floyd.