How Can I Avoid Personal Injury or Arrest and Still Film Police?

Public Recording of Public Servants is Legal If No Reasonable Expectation of Privacy

Michael Ehline U.S. Supreme Court.
Attorney Michael Ehline. The Motorcycle Rider’s friend.

Michael Ehline wrote a brilliant piece here dealing with personal injury avoidance and filming law enforcement. Check it out. Although we normally only deal in serious injury cases, often, civil rights cases become intertwined into a case of terrible injuries. For example, a bad cop may potentially use illegal, or unreasonable force to stop you from filming his/her brutality during detention or arrest.

Ehline Law wants to help consumers understand their rights and obligations while filming the police. By Michael P. Ehline, Esq. – First, let me start by saying that I love the police and that many of my Marine Corps brothers are now Deputy Sheriffs or CHP. I am pretty sure at least one Redondo Beach K-9 cop is also an inactive Marine. So the bad things I am about to say about bad cops, are about BAD Cops, not the good ones. In the Corps, we called them “sh+*birds.”

Now that is out of the way, let’s delve into the law. First, we will discuss the recording of non-police, so we can get a baseline and basic understanding of California privacy laws and then we will go to the police. So, in California, if you record a private person, and they don’t know, you are in trouble.

This remains true even if in public, or even a semi-public place such as out on the sidewalk, bike path, or eating establishment. So if the individual you are taping does not have “an objectively reasonable expectation no one is listening in or overhearing the conversation” you are in trouble.

Courts determine this on a case by case basis, based upon the reasonableness of the conditions. So this means you cannot merely assume that you are not breaking the law, when you make a recording of a person, under such circumstances.

Failsafe When Recording Private Citizens – Get Consent First

The Law:

The statute applies to “confidential communications” — i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). A California appellate court has ruled that this statute applies to the use of hidden video cameras to record conversations as well. See California v. Gibbons, 215 Cal. App. 3d 1204 (Cal Ct. App. 1989).

In California, always try and get the consent of all parties before recording them, especially if it is reasonable to assume their communications might be “private” or “confidential.”

In addition to subjecting you to criminal prosecution, a violation could also trigger the California wiretapping law in a civil lawsuit for damages by the victim(s). (See also Cal. Penal Code § 637.2.) California’s wiretapping law requires “two-party consent.” In California, it is a criminal act, to record or eavesdrop on confidential communications, like private phone calls, private chats, without the consent of all parties to the conversation. (See Cal. Penal Code § 632.) See also https://www.citmedialaw.org/legal-guide/california-recording-law.


 

Recording of Public Meetings:

In California, recording all public meetings is legal. This legally means videotaping is allowed. Furthermore, an exception is when the state or local body holding the meeting determines that the recording disrupts the proceedings by noise, illumination, or obstruction of view. (Cal. Gov’t Code § 11124.1(a); Cal Gov’t Code §§ 54953.5(a),-.6.) *To learn more, see the “The Reporters Committee for Freedom of the Press’s Open Government Guide: California.” (Click Here.)

Ok, So Can I Record Cops?

The answer is not a simple yes or no. However, in California, it is well-settled law. With exceptions, yes filming is legal. But you can only film the police while they are on duty, and you can’t interfere with their official duties. (So look for bad cops trying to get in between the reporter and blocking their cameras, and then charging the photographer with resisting or obstructing them!)

Otherwise, cops are treated under the law as private citizens, subject to the same protections above, as anyone else. Other jurisdictions agree. The First Court of Appeals stated that it is ok for the general public to videotape employees, e.g., police officers, while working. This decision took place after cops were piecemeal arresting recording citizens while television news channels ran stories.

In California Can I Record The Police With Video?

The internet, especially YouTube, has shown both the good and the wrong side of the police, especially the TSA goons at the airports. Many agencies, although having received multiple citizen complaints against certain rogue officers, just chose to act as though there was not a problem.

And this is true even though their personnel ignored their sacred oath(s). Others do not make it online, because exercising their First Amendment Rights is harder. Furthermore, in other cases a cop stomps or confiscates the camera. It happens!

In the YouTube examples, you can see a man filming a police officer fiddling with his cell phone. And the police are threatening to arrest him for filming an event. They have surrounded the man and lied to him, telling him he needs an attorney. And they then attacked him, destroyed his property, demanding that he not record the police.

Conversely, in the second video, you also see a friendly cop who understands the law of “open carry,” and who also obviously does not object to the future YouTube video. So this may freak you out. Two cops were doing the reverse of one another. The question is, how legal is it to film the police in public?

There have been some individuals, who have been prosecuted for filming the police. Police charged them using old wiretapping laws, or with Penal Code Section 148, (resisting, obstructing, delaying…).

When All Else Fails Penal Code Sec. 148

PC Sec. 148 is the favored section bad cops use to charge people who the police had just violated, such as civil rights violations and excessive use of force. It is a common practice by bad cops to accuse someone they just beat, or broke, with a crime. They do this so they can get leverage in a future civil case if they are sued.  Plus this gives the police union some firepower when the bad cops are trying not to get terminated for being, well, a bad cop.

If an arrested criminal defendant pleads out to the false charge (no contest, not guilty, etc.) out of fear, or for lack of money to pay a lawyer, or are “strong-armed” by the public defender, etc., the officer can later argue reasonable force or methods were used. And that is res judicata, etc. in any future civil rights lawsuit. This is the favored method municipal police departments historically have used, and it is very effective at restricting the unalienable rights of the sovereign (you).

Seal Your Coffin With Outdated Wiretap Laws?

Now, these old wiretap laws were enacted in the past to prevent the recording of private conversations. District attorneys faced with prosecuting anyone arrested by police for filming, have only been able to find wiretapping laws to nail the citizen or try and use obstruction charges above. But of course, this is just a pretext and punishment. It’s unjust and Orwellian, right? Well, Courts agree!

Enter Alvarez

This attitude by overzealous prosecutors changed recently, with actions of the U.S. Supreme Court. This came when the court declined the pleas of the ACLU v. Alvarez. The court left in place a ruling by a U.S. Federal Appeals Court ruling. Here, the Appeals Court declared that Illinois wiretapping laws used for the filming of police violated the individual’s First Amendment Rights. Amen!

This ruling was a decision that makes sense and is right? But UCLA Law Professor Eugene Volokh said there will still be problems. Professor Volokh expressed in a recent television interview; those police officers are not even sure what the law is. And this can lead to your arrest when you disobey the officer ordering the filming be stopped. He said the worst thing that can happen is being taken to the station, where you would be released a few hours later.

Filming our Public Servants Helps Keep them Honest

The good news is law enforcement officials are protecting citizens Constitutional rights. One example of this occurred during Thanksgiving weekend at an airport in Albany. A grassroots movement was there informing travelers about the dangers of TSA body scanner and filmed the encroaching pat-downs at the Albany International Airport. One airport official demanded the activists stop shooting, show their identification, and threatened arrest for breaking the law.

Local law enforcement arrived at the scene, where the sheriff told the airport official that the activists were not breaking the law. He could not arrest them or order them to show their identification. This is no surprise since the Sheriffs almost universally understand that many federal enforcement officials trample on individual rights as a matter of course.

The sad part about this is not all members of law enforcement will behave in this manner as did the Shire of the Reef above. In most cases, threats of arrest and intimidation by law enforcement is usually enough to make the activist or individual stop filming. The one thing to remember, it is legal to film the police.

No Charges for Obstructing or Delaying

  • Do stand far enough away from the officer to allow him or her to feel safe.
  • Do not run, at or stand close to an officer who is performing their duties, if, in any way, you provide a physical barrier to them.
  • Be respectful.
  • They are not your enemy.
  • Let them know that you are exercising your First Amendment Right to film.
  • And tell them if they feel you are a threat, to say to you right away.
  • That way you can alter any perceived behavior, to make them feel safe in the performance of their duties, short of you not exercising your right to record them.

At the end of the day, when tempers flare, you may never be able to avoid injuries when filming certain police. But if you are in compliance with your rights, duties and obligations as a citizen, the law is on your side. If you were were attacked while filming law enforcement, let us know.

Sources:

legal-to-filmpolice/

https://steeringlaw.com/police-misconduct-videos/

https://plus.google.com/u/0/115307003069691533470/about

Is Jury Nullification Kosher in a Personal Injury Case?

Personal Injury Attorney - Michael Ehline
Personal Injury Attorney – Michael Ehline
Understanding the Law

First of all, at the outset, this post is definitely not legal advice. I am not trying to teach people how to get out of jury duty or stay on a jury for that matter. I am merely pointing out my opinions and conclusions. But for one, I do believe it’s kosher for a jury to ultimately determine the law and the facts.

But I also think a court’s job is vital. However, its job is merely guiding the arbiters of justice (the jury.) But my opinions should in no way guide you in your decision to understand the law and mean to keep it well.

So What is Jury Nullification?

This definition is a great question and a great place to start. Why? Because this terminology can mean many things to many people, it must be more thoroughly understood. In fact, it encompasses many things as will be explained.

In a nutshell, jury nullification is defined as a juror’s right and duty to ignore, or not enforce what it considers to be an unjust law. But it also deals with a juror’s role in finding a court’s misapplication of a just law. Some have called this a juror’s “pardoning power.”

It is typically used in criminal matters. For example, jury nullification happens when a jury is convinced beyond a reasonable doubt of the guilt of a defendant in a criminal case, yet votes to acquit him or her of the charges anyways. (Recent examples may include the O.J. Simpson criminal case.)

But then again, under this procedure, the jury could try and vote to convict a person even though it’s not sure of guilt or innocence. But at least in that last example, if the evidence fails to support a conviction, judges may still direct a verdict of acquittal.

Can a Jury Nullify a Personal Injury Case?

But if a jury returns an acquittal, then generally, it’s game over. The court nor the prosecutor is allowed to appeal a criminal acquittal. But what about personal injury matters? Can a jury nullify a civil case also? It appears that jury nullification may also occur in questions of personal injury law.

For example, when the verdict is “generally a finding of liability or lack of accountability (rather than a finding of guilty or not guilty).” (See Lars Noah, “Civil Jury Nullification,” Iowa Law Review 86 (2001): 1601.). Many examples exist of jury nullification in both civil and criminal matters.

Furthermore, the Seventh Amendment protects and recognizes the pre-existing Natural Right of the Jury.

“…the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, then according to the rules of the common law.”

It appears well settled that jury nullification is a right and even a duty. After all, a juror must be the “conscience of the community.” (Source.)

Why Nullify in a Personal Injury Case?

First of all, it is easy to foresee why a juror would want to nullify a bad law in a civil or a criminal case. A personal injury case is unique in that a jury could hate the defendant and the plaintiff. A nullifying jury could use all manner of strategies to derail the economic recovery.  But the jury could still simultaneously dislike the defendant. Get it?

What are Some Major Reasons Why Nullification Can Become a Duty in a Civil or Criminal Matter?

After the passage of the German Race laws, Nazis targeted Jews with jail and wealth confiscation. Look at the ways the German Jews had their private property confiscated in pre-World War II Germany.

Antisemitism and the persecution of Jews represented a central tenet of Nazi ideology. In their 25-point Party Program, published in 1920, Nazi party members publicly declared their intention to segregate Jews from “Aryan” society and to abrogate Jews’ political, legal, and civil rights. (Source.)

Had I been a juror I indeed would not have convicted a Jew who had failed to yield their property or civil rights over to the state. Would you have done so?

What if criminal law was passed called the “White Privilege Law” that whites had to give up their property to pay reparations to the descendants of African slaves? Would you convict a white person for refusing to turn over their property?

Laws are often passed that discriminate against or help people, for example. Politically driven excuses are used to suppose how people gained their fortunes. Then a law is passed to tax them higher or lower depending on party affiliation. The masses easily may erode the rights of the gifted individual.

Personal injury lawyers have received favor in the tax code, for example. Hollywood has received exemptions in California’s gun law rich state. The film studios can even use and own fully automatic weapons. But ordinary citizens may not.

And it makes sense. After all, trial lawyers are enormous DC lobbyists. The studios also control the news and what is seen and heard thereon. But so is the insurance lobby and so forth. So all sides seem to benefit based upon who donates to who’s re-election bid.

Is there a Fundamental Unfairness to Plaintiffs in Personal Injury Cases?

In personal injury cases, some argue that insurance companies get a pass from the courts and legislature. The jury instructions make clear that no one can mention insurance or how much coverage is at issue.

So we all know that California law requires us to carry mandatory minimum liability insurance. But we are not allowed to consider whether or not there is insurance coverage in a motor vehicle accident case.

So if a defendant appears to be poor, a jury could be swayed into finding against the plaintiff. Or for example, they could award the aggrieved party peanuts. How is this fair? It’s great for the insurance company and shareholders.

But it can kill the plaintiff’s case. So for example, if I were on a jury, I would demand to know how much insurance coverage is at issue. Sure you don’t want to place the defendant in the poor house, but you also want to award the plaintiff for pain, suffering, particular and general damages. You want to do justice.

I for one would want to do my independent investigation if the court refused to disclose the existence or nonexistence of the insurance policy in question. So what does this have to do with nullification? Well, it doesn’t. Jury nullification does not give the juror a right to violate his oath under penalty of perjury. What does this mean to you?

First of all, you have to level with the court before being sworn in. You cannot agree to a thing that goes against your conscience, can you?

Jury Nullification May Not Be Used if a Juror Has Sworn an Oath Not to Use it?

  • Can I be Punished for Nullifying a Verdict?

The only example I could find that allowed a judge or prosecutor to take vengeance on a juror potentially is the Laura Kriho matter. In that case, Kriho was the sole juror refusing to convict based upon the interests of justice. It was a drug-related case called People v. Brannon. The situs was in Colorado. Juror Kriho was eventually charged with three counts of contempt of court.

A whistle-blowing fellow juror on the panel sent a secret communication to the Gilpin County District Court Trial Judge, Kenneth Barnhill. Said communication alleged that Kriho complained about the unfair potential jail time of the accused while deliberating. So the sell out juror asked the court to bring in an alternate juror. Since the court had previously dismissed the alternates, the court called for a mistrial instead.

But the trial court was not done with Kriho. Not even close. A message apparently had to be sent to the jury pool.

What Were The Contempt Charges in Kriho?

Kriho was eventually prosecuted for:

  1. Not volunteering information never sought during voir dire (e.g., that Kriho silently reserved her right to nullify an unjust law),
  2. Telling fellow jurors that her knowledge that potential punishment meant a conviction was likely wrongful, and
  3. Attempting to convince other jurors to cancel a charge that carried a criminal sentence as against the defendant.

Many courts use this case as a tool to convince jurors they may only decide matters of fact. But an educated jurist who knows the situation would know that the second and third charges were ultimately withdrawn. In other words, the discussion about nullification was never decided by any court! There was no punishment either.

The Remaining Sole Charge Was Reversed on Appeal in Kriho.

Amazingly, Kriho was convicted for failing to volunteer info EVEN THOUGH SHE WAS NEVER ASKED to do so. (Clearly, that jury followed the law as stated by the court.). In any event, that sole conviction on that sole remaining count against Kriho was reversed in 1999 on appeal! The appeals court rightly thought it absurd that a jury would have to read minds and volunteer info.

Accordingly, FIJA reported:

“You have to go back to [the trial of William Penn in] 1670 to find a case in which the judge tried to punish jurors for returning a verdict he didn’t like.”

Since the Kriho case, I can find just one case in which a juror faced a serious possibility of being punished for her verdict—the 2005 prosecution of juror Carol Asher.

In Asher, unlike Kriho there was a split jury. Hence, there was a mistrial as in Kriho. So the jury foreman ratted to the judge about Asher’s comments during deliberations. Also, unlike Kriho, three other jurors believed the defendant was not guilty. But only Asher alone was punished for felony perjury.

In that case, Asher was at risk for a 14-year prison term for “lying.” But Asher never made it to trial. Instead, an evidentiary hearing was held in 2006. And there, the entire case went away. Apparently, Asher learned the same lesson as Kriho.

Standing up for your rights means legal expenses and being placed in jeopardy of prison. This truth is the clear message these two jurors received.

The Kleinman Case

Next we have the Kleinman case. The criminally accused there was the defendant Now in Kleinman, a trial court told a jury it would violate the law if it ignored the trial court’s interpretation of the law. But the left-leaning 9th Circuit even agreed this went too far, stating:

“The court’s statement that the jury ‘would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case,’ may imply punishment for nullification, because ‘violate your oath and the law,’ coming from the court in a criminal trial, could be understood as warning of a possible violation with associated sanctions. Additionally, the statement that ‘[t]here is no such thing as valid jury nullification’ could reasonably be understood as telling jurors that they do not have the power to nullify, and so it would be a useless exercise. Judges tell juries: follow the law. But the statement there is no valid jury nullification misstates the role of nullification. This is because an acquittal is valid, even if it resulted from nullification.” [Emphasis.]

But this was irrelevant, harmless error to mis-advise a jury as to their rights. As expected, the 9th rejected Kleinman’s argument that the erroneous jury instruction required reversal of his conviction.

See the BELOW ERRONEOUS Jury INSTRUCTION.

“It is not fundamentally unfair for a defendant to be tried by a jury that is not fully informed of the power to nullify,” the court said, “or even that is stripped of the power to nullify, because there is no right to nullification. Although a jury should not be led to believe that jury nullification will result in punishment or an invalid acquittal, the court’s misstatement by implication does not rise to the level of denial of Kleinman’s due process rights.”

Wow. Did you see that? The courts are basically saying, yes we have a right to nullify. But a trial court can issue a false statement of law to a jury that nullification is illegal, and this will not require a reversal of a conviction. In fact, we are all presumed to know the law.

What If I Want to Remain on a Jury and Exercise Right of Jury Nullification?

For example, automatic exclusion can occur if you are a member of the ACLU, Libertarian Party, any number of marijuana rights organizations. So for example an NRA member may get tossed in a gun possession case.

And here would be an example of a wrongful death personal injury case. An anti-gun jury may decide even though it was self-defense, that defendant must still pay for merely owning a gun.

Must I Volunteer I Support Jury Nullification?

It depends. If you are an officer of the court who has written many treatises and articles in support of this right, it would make sense that you not withhold this fact from the court. Don’t fail to volunteer information, lol.

In the same way, a citizen who has touched on these issues online or on social sites, may also not want to withhold this information. Often, jurors are subject to investigation by all sides, and the court.

Yes, respond to the questions in a yes, no, I don’t know type of way. Less is more. The court has many people to interview. Move along. So long as you have no religious views or philosophy that prevents you from doing justice, you should be ok to serve. If you agree that everyone deserves a fair trial regardless of the law, you should be ok to serve.

Also, are you capable of convicting even if you disagree with a bad law? Yes you can be capable of that. But courts consider each separately. After this, it makes sense in silence about your opinions on nullification.

But What About Promises Under Oath?

Making a promise under oath means you must keep it. But what if you are forced to swear an oath to ONLY judge the facts? What if that juror swears to let the court decipher the law. If a juror says he “can” uphold a law he disagrees with he is not lying. But if he promises to only judge the facts, when he intends to be the judge of both, he could be a perjurer.

Did I Swear Not To Exercise My Right Not To Decide Issues of Law?

If you got on a Los Angeles jury, you may or may not have surrendered your right to be the conscience of the community when you swore to allow the court to be the soul decider of law. And nullifying unconscionable laws could expose you to a prosecution.

It is not because they exercised their rights per se. In fact, it is because they swore an oath not to use their right. Is that crazy or what? As touched upon above, failure of use of jury nullification was the International Court’s basis convicting accused Nazis of war crimes after WWII.

The reasoning of the Court was that civilians and soldiers alike have a duty to ignore, interpret, and in fact, fight against an unjust law. Hence, low and high-level soldiers, despite swearing an oath, could not argue they were just “following orders” when they killed innocent civilians and prisoners of war, etc. (Learn more.)

What are Some Other Examples of Why You Would Use Nullification in a Personal Injury Case?

  • Medical Malpractice (Read more.) .
  • Comparative Negligence Issues (Jurors may or may not apportion fault, for example. Or they may apportion greater fault if they think it unjust a plaintiff gets too much money.).
  • Reserved. In fact, there are so many times nullification could be appropriate, I invite you to comment below.

What are Some Other Examples of Just Use of Jury Nullification?

  • Statutory Rape Laws (An underaged female sexually assaults an adult male and he faces rape charges = unjust to apply the law (See eg State v. Morse 281 Minn. 378, 161 N.W. 2d 699 (1968).).
  • Gun Laws (A man in California arrested for having a cartridge magazine in his pistol with more than ten rounds in the magazine = unjust as a magazine is a primary component of a firearm. And number of rounds in a magazine directly affects a citizen’s ability to defend home and hearth.).
  • Race Laws (Fredrick Douglas and other white abolitionists were fierce supporters of jury nullification and an armed citizenry.).
  • Euthanasia Laws (Where a terminally ill patient wanted a mercy killing, and prosecutors have no choice but to bring charges against the doctor.)
  • Marijuana Laws.
  • Prohibition Laws.

What are Some More Famous Jury Nullification Examples and Explanations?

In “flagrant” cases, according to the court, “the jury has always exercised the pardoning power, notwithstanding the law, which is their actual prerogative.” (Local 36 of Int’l Fishermen & Allied Workers of America v. United States, 177 F.2d 320 (9th Cir. 1949).) Lysander Spooner, author of Trial by Jury 1852 pointed out that “governments cannot decide the law or exercise authority over jurors (the People) for such would be absolute government, absolute despotism.”

But in conclusion, the jury has to know the law and mean to keep it well. The rights you fail to claim become waived.

Falling into the trap of swearing to not exercise the right places a juror at risk not for exercising the right. Instead, the juror is at risk for perjury. Solutions are to avoid poisoning the other jurors. It appears that it is unwise to tip off fellow jurors as to their rights.

Do Not Surrender Oaths

So the smart move is to request a sidebar, approach when directed, and instruct the court that you plan to exercise the right to decide the law and the facts as justice dictates. But what if a judge asks: “You’ll follow the law as I instruct it right?” What if you feel intimidated?

Well, you are merely informing the court you cannot take an oath that would surrender a right as you know it.

A smart judge may present a hypothetical and ask you if you would follow the law under that example. I for one would say that it presents an incomplete hypothetical, and would preserve my right to decide the law and the facts as I see fit.

The bottom line is that it remains the right of all free man and women to decide the law and the facts in both personal injury and criminal matters. Our public servants are no smarter than any of us. In fact, many of them are too smart for their good. You, the citizen are the last line in defense of freedom.

 


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