Woman Jailed After Filming Her Own Traffic Stop

[noisycheese]

This woman knew her rights. That did not matter to Lieutenant William O’Brien, a deputy with the Broward County Sheriff’s Office, though. Apparently the good Lieutenant does not concern himself with such petty issues as the civil rights of the citizens he is paid to protect and serve.

As a result of being subjected to an unlawful arrest, being physically assaulted and injured in the course of said arrest and false imprisonment, Ms. Berning has filed a lawsuit against the Broward County Sheriff’s Department and Lieutenant William O’Brien.

I wish both Ms. Berning and her legal counsel godspeed in their undertaking.

'I Know My Rights': Woman Jailed After Filming Traffic Stop

Evan Bernick February 22, 2014

Brandy Berning spent the night behind bars. And it’s all because she knew her rights, and insisted that they be respected.
Her “crime”? Using a cell phone to film a traffic stop.

According to the Florida Sun-Sentinel, Lieutenant William O’Brien, a deputy with the Broward County Sheriff’s Office, pulled Brandy over after she allegedly drove in the HOV lane at the wrong time. She began filming the traffic stop. Lieutenant O’Brien then told Brandy that she had just committed a felony and demanded that she hand over her phone. She refused, insisting at one point in the recording, “I know my rights.” Brandy claims Lieutenant O’Brien tried to force her from the car, spraining her wrist. He ultimately hauled her into custody and to jail where she spent the night.

Simply put, the Constitution guarantees Brandy the freedom to do precisely what she did. Brandy knew her rights, and they were violated.

The First Amendment protects the right to record and report upon matters of public interest, regardless of whether one is a member of the press. It prevents the government from limiting the stock of information available to the public, as well as covering up overly aggressive police tactics. As the U.S. Supreme Court stated in Near v. Minnesota, “In determining the extent of the constitutional protection [of the press], it has generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints.” Thus, federal courts that have considered the issue have held that citizens have a constitutional right to film officers who are performing their duties in public places, subject to reasonable time, place, and manner restrictions...

Read the rest of the story here: http://blog.heritage.org/2014/02/22...ntent=headline&utm_campaign=saturday1_1400301

 

[Addy101]

She didn't film it, she recorded the conversation. Why does that heritage.org site claim it was filmed? Lousy journalism imho as the site they link to gives no reason to assume it was filmed.

 

[NY_Dan]

Broward county Florida? That's not the place to "stand your ground" with the law. 🙂 It didn't go well for Jim Morrison, and it won't go well for anyone else. This story has nothing to do with photographer's rights. It's all about a foolish person, illegally driving in the HOV lane, and giving an officer a hard time. If she knew so much about law, she would've stayed out of the HOV. That's a big fine -- that's why she was mad. And in creating a situation where she had to be arrested and held overnight she used valuable police resources and in essence robbed her community of the money used to make those resources available. She should have to pay for the police officer's time and for the cost to give her a county provided "hotel" room. 🙂 You know who should be suing? The poor SOB she's married to. 🙂

 

[mdarnton]

A common confusion, I think, that jerks don't deserve the same rights as everyone else. NY Dan will be fine with that concept right up to the day some cop unilaterally decides he's being a jerk.

There will be no meaningful control of the police as long as their regulation is essentially in the hands of the police. What's needed everywhere, not just Florida, is the control of the police by a citizens' board, not by a separate arm of the same agency.

 

[hepcat]

A common confusion, I think, that jerks don't deserve the same rights as everyone else. NY Dan will be fine with that concept right up to the day some cop unilaterally decides he's being a jerk.

There will be no meaningful control of the police as long as their regulation is essentially in the hands of the police. What's needed everywhere, not just Florida, is the control of the police by a citizens' board, not by a separate arm of the same agency.

An interesting thought, but ineffective. Citizen review boards always end up being co-opted into the agency. After hearing case after case they begin to develop a siege mentality when they can't understand why the officer didn't use MORE force because they would have!

Our rights under the Constitution in the US are generally very misunderstood. Government actions are presumed to be reasonable until they're overturned in court. Court, therefore, is where your rights are asserted, not on the street. Our First Amendment right of "freedom of speech," for example, only applies to criticizing the government and even then only in the proper venue. If you doubt that, try making a political speech in a courtroom while court is in session and see how far your First Amendment right of Freedom of Speech carries you.

What I read was that the driver refused to comply with lawful orders of an officer when she was stopped. In most states, citizens have a positive duty under the law to submit to arrest by a peace officer. The challenge of appropriateness comes in court. Also, this was a driving offense, and it's important to recognize that by accepting a driver's licence we waive many "rights" for the privilege. Just from Noisycheese's summary, I read that she was stopped, and refused to leave the car when directed. If she refused to sign a citation with her written promise to appear, then the officer would have had no choice but to "take her before the magistrate forthwith for arraignment" which usually means a night in jail.

If any third party had been arrested for recording the incident, either audio or video, that would clearly have been a violation of their First Amendment rights and there'd undoubtedly be a case. When the arrestee is the person trying to assert a First Amendment claim after failing to comply with the lawful direction of an officer, the case gets a LOT more murky.

I wouldn't jump to any conclusions on this one. It'll be interesting to see how it plays out.

 

[NY_Dan]

A common confusion, I think, that jerks don't deserve the same rights as everyone else. NY Dan will be fine with that concept right up to the day some cop unilaterally decides he's being a jerk.

So typical, I express my thoughts on this specific case and in response it's " NY Dan will be fine..." Well guess what -- you don't know what I will or will not be fine with. However, when dealing with the police I'm always polite and follow directions. Any intelligent person would never choose a path of foolish escalation. Like everyone I know, I've received some in my opinion bs tickets -- and I respectfully shared my viewpoint with the officer -- but I never crossed "that" line. If in the course of my duties as a professional photographer, if I believed an officer was out of line, I might consider contacting the police precinct. One has to choose their battles. Driving in the HOV lane illegally is one definition of a jerk. This is a good traffic stop. And with any traffic stop on a multi-lane highway there is the possibility of an accident. So to me, this makes the woman's selfish use of the HOV lane even worse. When caught what does she do? She gives the officer grief. The woman in question had no respect for the law, and now demands her "rights." Well, she can have her day in court -- hey why not use up more of the taxpayer's resources?

Photographers who fail to treat officers with respect (and by respect I don't mean a blind surrender of "rights"), only make it worse for other photographers in the future. As photographers we have opportunities to educate officers with regards to our purpose, and to act in a friendly cooperative manner that will make it easier to go about our business.

 

[Roger Hicks]

A common confusion, I think, that jerks don't deserve the same rights as everyone else. . . .

Quite. It may be hard for the police to admit this -- it's apparently hard for some here to understand it, for that matter -- but it is a foundation of the rule of law.

There's also what the late Lord Denning, Master of the Rolls (for Americans "very senior judge indeed"), described as the "sturdy answer", a refusal to act like a slave in front of someone drunk with his own authority.

Cheers,

R.

 

[NY_Dan]

Quite. It may be hard for the police to admit this -- it's apparently hard for some here to understand it, for that matter -- but it is a foundation of the rule of law.

There's also what the late Lord Denning, Master of the Rolls (for Americans "very senior judge indeed"), described as the "sturdy answer", a refusal to act like a slave in front of someone drunk with his own authority.

Cheers,

R.

It's apparently hard for some here to understand that one is innocent until proven guilty -- that goes for the woman driver AND the police officer. This whole incident is one shaggy dog story. However, the driver has more strikes against her due to the fact she was driving illegally in the HOV lane. So before we row across the pond for the opinion of Lords, which has no small irony here, we might wait for a verdict -- should it go that far.

 

[Phil_F_NM]

If she knew her rights, then she knew that Florida is a two party consent state with regard to recording. She lawfully had to inform the person she was recording that she was doing so and if that person does not want to be recorded, she must cease immediately.

People can't be going around saying they know their rights when they really don't.

Phil Forrest

 

[dogberryjr]

Taking information from the Heritage Foundation—let alone a BLOG from the Heritage Foundation—as unbiased truth is a hazardous proposition.

 

[filmtwit]

Speaking of verdicts at this time . . .

"she allegedly drove in the HOV lane . . ."

al·leg·ed·ly
əˈlejidlē/
adverb
adverb: allegedly

1.used to convey that something is claimed to be the case or have taken place, although there is no proof.

It's apparently hard for some here to understand that one is innocent until proven guilty -- that goes for the woman driver AND the police officer. This whole incident is one shaggy dog story. However, the driver has more strikes against her due to the fact she was driving illegally in the HOV lane. So before we row across the pond for the opinion of Lords, which has no small irony here, we might wait for a verdict -- should it go that far.

 

[hepcat]

I suspect that the officer's dashcam will be a little more straightforward with the facts.

 

[bob338]

Next time anyone is wondering why so many old-timers have left this forum, please point them to comments like this.

This isn't the Fox News comments section.

And in creating a situation where she had to be arrested and held overnight she used valuable police resources and in essence robbed her community of the money used to make those resources available. She should have to pay for the police officer's time and for the cost to give her a county provided "hotel" room. 🙂 You know who should be suing? The poor SOB she's married to. 🙂

 

[Addy101]

If she knew her rights, then she knew that Florida is a two party consent state with regard to recording. She lawfully had to inform the person she was recording that she was doing so and if that person does not want to be recorded, she must cease immediately.

People can't be going around saying they know their rights when they really don't.

Phil Forrest

Well, maybe you should listen to the recording - she notifies the officer after about a minute and he doesn't ask her to stop recording (which you claim he can do) but he demands that she hands over the phone. So, apparently, the officer also doesn't know the law....

 

[NY_Dan]

Next time anyone is wondering why so many old-timers have left this forum, please point them to comments like this.

This isn't the Fox News comments section.

Hahahahahah! Good one!

 

[noisycheese]

If she knew her rights, then she knew that Florida is a two party consent state with regard to recording. She lawfully had to inform the person she was recording that she was doing so and if that person does not want to be recorded, she must cease immediately.

People can't be going around saying they know their rights when they really don't.

Phil Forrest

So she has no right to record the police, but they have dashcams running 24/7 in their cars and that's okay?

I don't recall reading in the article that the police officer informed her that she was being recorded - therefore he violated Florida's two party consent law from the get-go.

...Well, maybe you should listen to the recording - she notifies the officer after about a minute and he doesn't ask her to stop recording (which you claim he can do) but he demands that she hands over the phone.... So, apparently, the officer also doesn't know the law...

She did notify the officer - and he did not object to being recorded; isn't that a tacit consent to being recorded? Also - it seems that it is not so much a case of the officer not knowing the law, but rather a case of not caring what the law says when it is an inconvenience or an affront to him.

Is it okay for the police to break the laws they are paid to enforce? No it's NOT okay.

Let he who is without sin cast the first stone. 😉

 

[JoeV]

Police are permitted to break the law all the time in the course of doing their jobs, as in exceeding the speed limit and running traffic lights (with their lights and/or sirens on), so in that sense they do have special privileges.

As for "innocent until proven guilty," that constitutional concept has little to do with the law enforcement side of the criminal justice system, otherwise no officer would be permitted to arrest anyone for any reason unless they had already been convicted by a jury of their peers. Law enforcement typically believes the arrested person is already guilt, otherwise why would the officer be arresting him in the first place?

What is needed in order to restrain the rise of an unbridled police state is Rule By Law, not rule by law enforcement. Unfortunately, because the criminal justice system is intractably corrupted by politics, especially rightwing politics, that seems unlikely.

Or, as a Dallas, Texas, police officer was heard to say, "A police state's not such a bad thing - if you're the police."

~Joe

 

[Ronald M]

The place to fight arrest is in court. Few will ever win an argument with a police officer at the scene. That is why there are lawyers, discovery, and trials and a jury.

 

[Landshark]

There are two separate things happening here.
1)the traffic stop. There seems to be no question that the woman stopped for the officer.
Assume she's guilty of the traffic violation.
But.
2)recording the incident. Federal law trumps state law every time. The Feds say it is legal to record incidents in PUBLIC. So much for mutual consent. Unless, of course the side of an interstate highway isn't public.

 

[JHutchins]

If she knew her rights, then she knew that Florida is a two party consent state with regard to recording. She lawfully had to inform the person she was recording that she was doing so and if that person does not want to be recorded, she must cease immediately.

People can't be going around saying they know their rights when they really don't.

Phil Forrest

It simply doesn't matter that Florida is a two party consent state. It's becoming increasingly clear that there is a first amendment right to film or record the police in the conduct of their official duties and therefore laws requiring the consent of a party are unconstitutional to the extent that they require the consent of the police officer to continue recording. See, e.g. <i>Alvarez</i> http://www.aclu-il.org/wp-content/uploads/2012/05/Alvarez_ruling.pdf