We have another highly disturbing case involving a police officer who abused and arrested a citizen for recording an encounter. I have previously written about the first amendment right to videotape officers. The courts have consistently upheld this right despite efforts of prosecutors like Anita Alvarez in Cook County to put citizens in jail for such recording. However, police officers continued to misrepresent the law and seize cameras or threaten citizens with arrest. In a cellphone recording (available here), Florida mother Brandy Berning is roughed up and arrested by Broward Sheriff Deputy William O’Brien after he tries to seize her cellphone as evidence of the crime of recording him.
Berning was driving on I-95 when she was stopped for driving in an HOV lane. She decides to hit the record button on her cellphone for her own safety. She is heard telling the officer that she had forgot to mention that she is recording the conversation. O’Brien then responds menacingly. “Well I have to tell you that you just committed a felony.” He then demands her phone, which she refuses. He is then heard forcing his way into the car and trying to grab the phone. Eventually he pulls her out of the car as she screams and back up arrives to assist in the arrest.
She was dragged along the ground and thrown against the cruiser — experiencing cuts and bruises. She spent the night in jail.
Now here are two facts that we have repeatedly seen in these abusive arrest cases. She was never charged with the alleged crime — which does obviously exist. Second, all charges were later dropped.
It turns out that in July all officers received a briefing sheet that stressed that citizens have the right to film officers in public. O’Brien therefore roughed up and arrested a citizen without cause after misinforming her that she was committing a crime in engaging in a constitutionally protected exercise. While Florida is a two-party consent state, the Florida Supreme Court has ruled that such consent is not needed with regard to filming police in public.
Berning now wisely plans a lawsuit for battery, false arrest, and false imprisonment. Florida will end up paying unnecessary (though warranted) damages and litigation costs because of a failure to properly trained and discipline its officers. The question is what will happen with Officer O’Brien.
I would also like to know why O’Brien was not disciplined after the charges were dropped. Clearly supervisors and/or prosecutors were involved in that decision. Did anyone report O’Brien for discipline? Given the fact that Berning was never even charged with the crime of recording an officer, O’Brien either knew at the time or soon learned that there was no crime. Yet, he proceeded to charge her anyway with other crimes. We also should read his report on the arrest. It would be interesting if he omitted his original claim of criminal conduct (creating a false account) or whether his supervisor was informed that he is arresting people for non-criminal conduct.
In past cases, we have seen no action taken until the media reveals the abuse and even then officers are rarely terminated. Indeed, even in recent decisions dealing with shootings and innocent citizens, officers have not been simply sent to a couple classes on the use of lethal force.
These incidents reveal a sense of dangerous impunity by an officer who believes that he can physically drag citizens from their cars and seize cellphones. That may reflect more than a rogue officer given a prior similar case.
Should this be a terminating offense in your view? I am inclined to view such conduct as moving beyond a matter for simple discipline or retraining. The officer was abusing a citizen engaged in a protected activity after misrepresenting the law. In the very least it shows a shocking lack of personal restraint and judgment that present a public danger in such encounters. What do you think?
Kudos: Michael Blott