Wednesday, July 16, 2008

Photogate update

Reason's Jacob Sullum weighs in on the Mountain City "illegal photography" kerfuffle, calling the police officer -- whose name, incidentally, is Starling McCloud -- a "public menace" who "misapplied the law and abused his authority." Indeed. Sullum concludes, quite correctly, that "as much as McCloud might wish it were otherwise, there is no law against annoying police officers."

Among other things, Sullum points out something I'd missed when I wrote my initial post about this outrage: official statements by Officer McCloud and Officer Lane (PDF) confirm statements by the photographer, Scott Conover, that Officer McCloud demanded that he delete the photo. This is excellent news, as it eliminates any chance of McCloud relying on the obviously-bogus "I thought it was a laser pointer" defense. (What -- was he asking Conover to delete a photo from his laser pointer?) It also definitively establishes that McCloud engaged in totally unjustified and illegal bullying, no matter how much of a "dick" (in Sullum's words) Conover might have been, and no matter how ignorant of the law McCloud might have been.

To wit: there is no possible universe of facts, even under the most irrationally charitable of interpretations for Officer McCloud, in which it could ever have been remotely acceptable for him to demand, on pain of imprisonment, that the photo be deleted. If Officer McCloud honestly thought, due to legal ignorance or heat-of-the-moment misjudgment or what have you, that the photo was either contraband (i.e., illegal in itself) or evidence of a crime, then deleting it would constitute destruction of evidence. And if the photo was neither contraband nor evidence, then by definition, the police obviously had no right to seize it or otherwise make any demands about it. So, no matter how you frame the issue, McCloud can't win.

Or, at least, shouldn't. That said, if the D.A.'s office has a sufficiently defiant mentality about that meddlesome jerk Conover and these know-it-all blogospheric outsiders trying to push them around and tell them how to do their gul-darn jobs, I wouldn't be surprised if they drop the legally bogus "unlawful photography" charge and the factually bogus "laser pointer" charge, but leave the catch-all "disorderly conduct" charge in place, on the basis that Conover was "abusive" and so forth. You can practically script the officers' testimony in your head, as they try to make this about Conover's behavior, instead of about theirs, and abuse the power of their badges -- again! -- to win the credibility war. That's how people like this operate: they violate your rights, threatening you with arrest when you've done nothing illegal, then blame you for not handling their unlawful bullying with perfect grace and aplomb, and further justify their unjustifiable actions on the basis that you were being a jerk. Like that's the issue.

I hope I'm wrong, of course. But, for an example of how this sort of thing can unfold -- and why it isn't necessarily so obvious that we should "relax" because "the citizen involved is exercising his rights, and he will win; the system IS WORKING" -- check out the sidebar on Miami photojournalist Carlos Miller's blog, "Photography is not a crime":

My name is Carlos Miller and I am a multimedia journalist who was arrested by Miami police after taking photos of them against their wishes, a clear violation of my First Amendment rights. Since that arrest on Feb. 20th, 2007, I've been fighting a lengthy battle against the State of Florida to prove my innocence. Recently, a jury acquitted me of disobeying a police officer and disorderly conduct, but convicted me of resisting arrest without violence.

[Miller later asked, "How can one resist an unlawful arrest?" I would add, "What exactly does 'resisting arrest without violence' entail?" Surely a mere verbal argument that you shouldn't be arrested, not involving physical force (or violence), is protected speech, not illegal "resistance," yes? -ed.]

I am now appealing the conviction. During the sentencing, an extremely biased judge gave me four times the amount of probation the State was seeking because he was angry that I had blogged about my case. Judge Jose L. Fernandez said he was "shocked" by my lack of remorse in this case. But why should I show remorse for crimes I did not commit?

Why, indeed. And why should blogging about one's case have anything to do with sentencing? That's one civil-rights violation piled on top of another, there. In any case, the "resisting arrest" b.s. is precisely the sort of thing I'm worried about in this case. That's exactly how citizens get trapped in cases like these: with bogus charges like "resisting arrest" and "disturbing the peace" and "disorderly conduct," which become a courtroom credibility battle between the officer and the citizen, which the officer nearly always wins.

Miller, incidentally, has a post about the Conover case, which is how I found his blog. He notes, correctly, that the official police documents make it clear that "the basis of the arrest was solely because Conover refused to delete the photo he took of McCloud" -- and "it is illegal for a law enforcement officer to order a civilian to delete a photo without a court order."

Yet there are countless examples of this sort of thing happening, and of the "system" not working, at least not well enough to completely vindicate the rights of the people who've been oppressed, let alone to correct the problem going forward.

The truth is, many decision-makers and authority figures in our society just aren't terribly friendly to the Random Man With A Camera -- and their unfriendliness is buttressed by the attitudes of certain members of the public who will tend to make statements like, "one does have to question why the dude decided to photograph the cop in the first place," thus shifting the burden to the victim to explain himself, while paying only lip service to the need for the police officer -- the one who actually did something illegal -- to explain himself. For this and many other reasons, people in Mr. Conover's situation tend to face a huge uphill battle, and it's foolish to assume that everything will turn out all right just because it obviously should.

That reminds me: the extensive blogospheric commentary on this issue has brought out of hiding at least three unique species of unfortunate comment-section creatures (not necessarily here, but in the blogosphere generally) who are each, I think, worth mentioning in their own right. They are:

* The "police can do no wrong" brigades. These folks are essentially authoritarians, though they don't realize it. Significantly less common in the somewhat high-brow world of the blogosphere than at, say, water coolers or, better yet, construction sites (or, online, in places like AOL chatrooms and YouTube comments), they are the people who will always give police officers the benefit of the doubt, even when they clearly don't deserve it, and will justify this position not with specific facts from the case in question, but with blanket assertions about how cops are "heroes" who "risk their lives" for all of us ungrateful bastards -- including for know-it-all jerks like Scott Conover, who have the audacity to annoy America's Heroes in the line of duty, which, if it isn't a crime, it should be. People in this category do not recognize any civil-liberties concerns related to law enforcement as being remotely legitimate, because police are, again, heroes who would never dream of abusing their authority (of which they should have more, by the way), and anybody who thinks otherwise is a stinkin' ACLU-loving, tin-foil-hat-wearing, commie pinko idiot. U-S-A! U-S-A! (People in this category, incidentally, generally feel the same way -- but even more intensely -- about the military.)

* The "police can do no right" brigades. These folks are significantly more common in the blogosphere than IRL; they are the idiots whose helpful contribution to discussions like this is to make statements like "stinking pig cops," and/or to paint all police misbehavior as part and parcel of a vast conspiracy. Needless to say, they make the rest of us -- those who seek to criticize the police only when the criticism is actually justified, and who otherwise respect and appreciate the hard work officers do -- look bad. They also make us easy targets for Group #1, which sees anyone who criticizes the police as being in this group. People in this category are unable to distinguish between actual bad policing and the mere appearance or suggestion thereof, because they never give a "pig" the benefit of the doubt; indeed, they would never dream of doing so. The police are bad, bad, bad.

* The "well, yeah, but he was being a jerk" brigades. There is some overlap between Group #1 and this group, but not too much. Generally, members of this group are a whole different type of animal: instead of being credulous believers in the purity and righteousness of the police, these folks are the masters of judgmental snark with regard to the officers' victims. It isn't so much that they always give police the benefit of the doubt, as that they never give that benefit to those whose rights get trampled. They can always find some fault in the victim, and they regard this fault as the overriding issue that everyone else is overlooking. Without recognizing that they're doing so, they pose an almost impossible standard on the victims of police misconduct: unless the citizen's behavior was totally and completely above reproach throughout the entire incident (and, frankly, it's awfully hard to avoid getting angry when an officer of the law is blatantly bullying you), the whole thing is really the citizen's fault, according to the people in this group. The motivation of these folks is hard to divine, but their effect on the debate is clear: they make it far easier for the defenders of police misbehavior to turn the tables on their accusers, or at least obfuscate the issue by putting the victim on trial and spreading harmful memes about his or her behavior. To the extent that some of those memes may have some validity, the people in this group feel vindicated, failing to recognize that, in order for any of us to have rights, jerks must have rights too.

It's always frustrating to see the people in these three groups come out from under their rocks whenever a story like this breaks. But alas, such is the nature of discourse these days. Mercifully, the discussion here on The One Blog has been mostly free of these characters thus far, but if my blogging about this issue continues to attract attention, I figure they're bound to show up in greater numbers sooner or later -- and I figure it's easier to recognize them if you're on the lookout for 'em. So, be on your guard, as Gandalf would say. (He would then add, "There are older and fouler things than Orcs in the deep places of the world." But that's probably not pertinent here.)

P.S. If you're keeping score at home, this was my "one longer post" for the week. For normal posts, I've got 18 minutes left. Yes, I realize it's only Wednesday... and I only started counting on Tuesday. Harumph. ;)

UPDATE 2: I've posted a another detailed post about this case, including a link to another blog that has published the photos in question, along with a more detailed account by Conover of what occurred. Read the whole thing.