Constitutional Law, Criminal law, Media, Politics, Society

Florida Deputy Falsely Tells Mother That Recording Him In Public Is A Crime And Proceeds To Drag Her From Car and Arrest Her

Screen-Shot-2014-02-18-at-8.25.43-PM-300x179We 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.

Brandy-BerningBerning 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

66 thoughts on “Florida Deputy Falsely Tells Mother That Recording Him In Public Is A Crime And Proceeds To Drag Her From Car and Arrest Her”

  1. There are livestreaming apps, limited only by upload speeds. Bambuser being the big one. On my android the app will continue to record and upload even when the on/off button is pushed. Any data not uploaded is saved by the cellphone and can be uploaded later to complete the missing video.

  2. Every time I read an article such as this I am just bewildered at how stupid these cops are and now outraged they become about being filmed. I just don’t get it. Who cares if some citizen is filming you? It doesn’t freeking matter. Just handle the call, clear, and move on to the next. It’s not that hard.

    The only time I can see something being an issue is if the people doing the recording are standing too close to a situation where they might get hurt. So, you ask them to move back 20 feet for their own safety and they can continue recording. 99% of them will do it.

    What would I do about this guy’s employment? If I was sheriff and one of my deputies did that he would be looking at termination. I certainly would question his suitability to be a LEO after an incident like that.

  3. After retiring I drove a cab in a large city for 8 years (much to the dismay of friends and relatives) and .I’ve encountered both with equal trepidation.

    I now live right next to a National Forest near a very small town in Montana far away from city life. My biggest threat are bears and an occasional moose or wolf…..and for the most part they are not at all interested in me. We leave each other alone and go about our business.

  4. Personanongrata,

    Good point….we do need live streaming as cell phones and cameras will conveniently turn up missing if they were used to document illegal police activities. If this was an option on a new car I would certainly purchase it.

    I fear an encounter with the Police as much as a street thug. At least with a thug I have a fighting chance to defend myself and won’t be put behind bars because of a bruised ego. A street thug won’t plant drugs on me or in my car if I don’t show him the respect he demands. With a thug I have the option of retreating to safety, with the police my rights are totally up to the officer’s discretion and at times my rights no longer exist.

    It is almost like some of our police officers are wanna-be soldiers without the courage to actually join a military fighting force. They rather intimidate the unarmed and helpless members of our society in an effort to demonstrate their toughness. How some of these officers get through the screening process is beyond me—their emotional issues should create a lot of red flag warnings to those experienced in the interview process.

  5. Termination would be to good for the fraction of a human being known as Broward Sheriff Deputy William O’Brien, some time alone locked in a cage would be appropriate.

    It would be nice if automobile manufacturers would offer a video/audio package that can stream live to the intertubes.

  7. If you can see a cop, so can your cell phone camera. If you can hear a cop, so can your cell phone microphone. Police are the most dangerous people you will meet in daily life and are not held to the same standards as citizens. ALWAYS record the police!

  8. I’m surprised she wasn’t charged with the lone “resisting arrest” without the underlying crime for which the arrest would be based.

    That’s a favorite for the police.

  9. JH…..

    You understand that this is Electra, Texas….the law has no applicability there…. Unless you’re a Waggoner….. Then the laws don’t apply to you at all…. At one time and I think it still is one of the largest ranches…..about half a million acres…. I think it has lots of them thar jumping horses….. That goes up and down….. Aka pump jacks…..

  11. JH, what the officers did was wrong. This sort of thing should never take place. However, your actions seem to trivialize the brutality that takes place across America. If your intent is to make sure officers get away with nothing illegal, I commend you. You had better be careful, though, because I suspect if these clowns got a hold of you without the cameras rolling…

  13. Public employees seem to have a fundamental problem w/ reality. From cops not understanding the ubiquity of cameras in our culture and union employees not understanding the party is over regarding taxpayers being fleeced. They’re like spoiled children because well…they have been spoiled. Tough love will work.

  14. Not sure how to start my own blog thread here… I am a terrible writer anyways.. and maybe this is a bit off the topic of this post, but I really think you all should see this video.. I do not know which is scarier.. The actions of the officers.. or the demands, and comments made by the prosecuting attorney afterward.. If anyone wants to re-post this as the start of a thread, and open discussion… Go for it.

  15. “It turns out that in July all officers received a briefing sheet that stressed that citizens have the right to film officers in public.”
    *******************************
    Briefing sheet, hell! Wonder how the 11th Circuit will take to being ignored?

    “Eleventh Circuit (with jurisdiction over Alabama, Florida,/b> and Georgia): see Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”).”

    -from Digital Media Law Project

    Here’s the opinion:

    http://scholar.google.com/scholar_case?case=16398383335009435380&q=212+F.3d+1332&hl=en&as_sdt=2,22

  16. Where the public has a right to video tape police officers, yet those officers arrest their video tapers, confiscating their equipment with impunity because prosecutors allow this, 1) sue the police both individually and as a department civilly for damages and 2) vote the prosecutors out of office. It has been my experience that both police and prosecutors have a better than thou attitude which needs to be corrected.

  18. This officer should be an ex-officer. But he is not alone. It appears that his supervisors have condoned this action if he has not be disciplined. The police department needs a thorough cleaning after the County or its insurer digs deep into their pockets.

  19. “What do you think?” – JT

    He didn’t get the July memo cause he didn’t want to. His excesses will continue if he remains a faux officer.

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