If you needed any further proof of how difficult it will be to bridge the chasm that exists between the law enforcement community and the minority community, look no further than our local case involving Maurice "Mo" Crawley, Syracuse Police Officer Vallon Smith and Onondaga County District Attorney William Fitzpatrick.
You can watch some of what happened on the evening of July 28 in the 100 block of South Avenue in the video at the top of this post.
Crawley was videotaping Officer Smith as he made an arrest. In the video, Smith seems to be behaving in a professional manner.
Suddenly Smith crossed the street and, hurling the F-bomb, challenged Crawley. Smith didn't appreciate being filmed or followed. Crawley was charged with obstructing governmental administration and resisting arrest, and he was taken to jail.
DA Fitzpatrick said at a press conference later that these charges would be dismissed, but a new charge of "harassment" might be brought against Crawley at a court appearance scheduled for Aug. 25.
If Fitzpatrick does charge Crawley, it would be most unfortunate. The law is clearly on Crawley's side. He has a First Amendment right to film a police officer in a public place as the officer goes about his duties. One clear statement of this right comes in the case Glik v. Cunniffe, decided by the U.S. Court of Appeals for the First Circuit in 2011. (You can read the opinion here.)
The facts in Glik are similar to the Crawley case.
Glik was walking in the Boston Common when he saw what seemed to be an arrest with excessive force. He took out a camera and began to film the scene. One of the officers approached Glik and told him he had taken enough pictures. He put handcuffs on Glik and charged him with disturbing the peace, aiding in the escape of a prisoner, and violating a Massachusetts wiretap law for recording audio without the cop's permission.
All these fanciful charges against Glik were dismissed. Then Glik asked the Boston Police Department to investigate the incident. They refused, and no disciplinary proceedings were brought against the arresting officer. So Glik filed suit against the police department on grounds that his First Amendment right (to film) and Fourth Amendment right (protecting him from being arrested without probable cause) had been violated.
In its ruling on whether Glik's case could proceed, the First Circuit sided strongly with Glik. The court stated that it makes no difference the police were annoyed with Glik for filming them. Their annoyance "does not make a lawful exercise of a First Amendment right a crime."
The right to film police in public is well established. "Gathering information about government officials . serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs," the court wrote. This is particularly true as concerns the behavior of law enforcement officials who may misuse their authority "to deprive individuals of their liberties."
The court warned that "the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state" [my emphasis added].
The court noted there is no legal distinction between a "journalist" and a citizen. Every citizen with a camera is now a journalist, and everything occurring in public can be filmed. The police must get used to it.
The lesson for Syracuse Police Chief Frank Fowler is clear. Teach your officers the law. Instruct them that citizens have a First Amendment right to film them on the job. Officer Smith should have simply ignored Crawley, completed the original arrest, and left the scene. Fowler owes the public a full accounting of how he handles this incident. As I write this, he has said nothing.
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The lesson for Fitzpatrick also is clear. No charges should be brought against Crawley. He did nothing wrong. How can he "harass" Smith when it was Smith who crossed the street to confront him? "Harassment" under New York Penal Law 240.26 says Crawley's actions must "serve no legitimate purpose." Playing watchdog on the cops is manifestly a "legitimate purpose."
It is also disturbing that this is the second recent instance in which Fitzpatrick has tried to criminalize, and thereby discourage, protected First Amendment activity. The first involved the bogus letter, critical of COR Development, sent to The Post-Standard by Bruce Conner. The letter was "signed" by local clergymen who never signed it. To the extent there was a legal problem with this letter, civil remedies were available to the clergymen. The criminal charge lodged by Fitzpatrick against Conner was, properly, thrown out by a judge.
If we are going to improve police-community relations, our law enforcement authorities must realize that the solution starts with them. The Crawley affair need not have happened. Chief Fowler and DA Fitzpatrick must respect the First and Fourth Amendment rights of citizens. This is not yet a police state.
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