Wednesday, August 6, 2008

The "unlawful photographs" -- revealed!

Scott Conover, the man arrested for "unlawful photography" because he took a picture of a police officer on a public road, has his court date today in Johnson County General Sessions Court.

[UPDATE: Conover's court appearance has reportedly been delayed until Wednesday, September 3.]

Meanwhile, on the eve of that next chapter in this infuriating story, blogger and photographic freedom activist Carlos Miller has published a lengthy post containing more details on the events of June 8 -- including the photos themselves, the collections of pixels that started all this nonsense.

Deputy Starling McCloud, left, handcuffs Scott Conover, right, while Deputy Ben May, center, looks on. Photo taken with Conover's iPhone by Conover's 12-year-old daughter, who was then herself threatened with false arrest for this instance of "unlawful photography." Reprinted with permission from Carlos Miller. (The original photo that got Conover arrested actually didn't turn out nearly as well. But you can see it on Miller's site.)

Miller interviewed Conover about what occurred, as well as the background underlying it. Turns out, Conover has been something of a thorn in the Johnson County Sheriff's Office's side -- which, I hasten to point out, doesn't make him guilty of anything. Quite the contrary, in fact, if Conover's tale is true.

According to Conover, a few years ago, he witnessed a pair of officers "beat the sh*t out of" a man in front of a bar he owns. He gave a witness statement to the man's attorney. Upon seeing the statement, the police "came by and asked me why I was getting involved.” From that point on, according to Conover, the police began routinely harassing customers leaving his bar, stopping people on suspicion of drunk driving without any just cause for doing so. Conover eventually "sued them and settled out of court for an undisclosed sum," he says.

That helps explain why Conover took the "offending" picture on the night in question:

[Ahead of Conover on the road] were a group of customers who had just left the bar. A Johnson County Sheriff’s deputy, who was parked along side of the road, pulled over the car with the customers.

“The lady who was driving doesn’t drink,” [Conover] said. “Her husband, who does drink, was sitting in the passenger’s seat.”

Conover pulled up to the scene and stopped his Hummer in front of the traffic stop. He asked his son for his iPhone, then rolled the window down and said:

“Hey fellas, I’m just getting your picture.”

A quick note here: whereas the officers' accounts made it sound like Conover was insolently taunting the officers when he announced he was going to take their picture, Conover's account makes it sound like he was actually trying to reassure them that he was merely pointing a camera at him, not something more sinister. That's actually a pretty responsible thing to do.

Now, obviously, I don't know for sure who's telling the truth -- but since it's already known that Officer McCloud has made at least one false statement under oath (i.e., claiming that Conover's iPhone pointed a red light at him, causing him to fear for his life -- something that iPhones cannot do), I daresay he doesn't have too much credibility. Between McCloud and Conover, Conover is the one who hasn't yet been caught in a lie.

Anyway, back to the article:

Then he snapped the photo. Deputy McCloud - who has been on the force only 18 months - told him that photographing him was illegal.

“I asked, ‘what planet are you from?’,” Conover said.

McCloud started threatening to arrest him if he did not delete the photo...

At this point, I want to stop again, and reiterate something I mentioned previously: it doesn't matter if you approve of Conover's actions. It doesn't matter if you think he was being rude, or a jerk, or whatever. It doesn't even matter if you're inclined to give the officer the benefit of the doubt when making snap judgments in the line of duty, particularly with regard to citizens who are annoying him. Whatever your position on those issues, the fact remains that, under any possible interpretation of the facts (as recalled not just by Conover, but by the officers themselves in their statements), it can never, ever, ever be acceptable for a police officer to "threaten to arrest [a citizen] if he [does] not delete [a] photo" -- which the officers admit occurred. Such a demand is never justifiable, because, again:

"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."

And if McCloud was flustered by Conover's (perfectly legal) actions, too freaking bad. That's no excuse for using the power of his badge to make illegitimate, illegal, arguably unconstitutional demands, on pain of imprisonment. He's a police officer. His job is to serve and protect the public, within the bounds of the law. He is required to respect the public's rights, even when the public is pissing him off. He doesn't get to just make up new laws because some guy was annoying him.

So don't make this about Conover. Don't you dare. It's not about Conover, or his actions, or his character. It's about Officer McCloud. Even if you don't buy Conover's explanation of his actions -- and, personally, I do, but even if you don't -- Conover still didn't commit a crime by taking that picture, and McCloud did commit a crime by threatening to arrest him if he didn't delete it. McCloud should be punished. Conover should not. Period.

Anyway, continuing with Conover's story, as told by Miller:

Conover’s wife even asked her husband to just hand the deputy the iPhone, but he refused. The deputy kept threatening him with arrest if he didn’t delete the photo. [It's worth reiterating that McCloud's own account confirms this, as does Lane's account. -ed]

The deputy then ordered Conover out of his car.

“I threw the phone back to my [12-year-old] daughter and told her to keep taking photos.”

By then, two Mountain City police officers had pulled up to the scene, including Kenneth Lane and Ben May ... McCloud placed two sets of handcuffs on Conover, who is six-feet tall and weighs 270 pounds, and apparently looked as if he could break out of a single pair of handcuffs.

Conover’s daughter snapped two photos before McCloud threatened her with arrest.

“He started trying to get in my Hummer and get to the back seat where my kids were. I told him, ‘You better not go back there or else we’re going to have some real problems’,” he said. [The statements by McCloud and Lane do not mention this statement, but they say Conover was "irate," "cussing" and "cursing." -ed.]

McCloud decided against arresting the daughter.

At the jail, Conover asked McCloud if had ever heard of the First Amendment.

“He then turned to me and said, ‘I’m charging you with disorderly conduct’.”

Ah, "disorderly conduct." That, I suspect, is the charge they will try to stick Conover with today, given the transparently bogus nature of the other charges ("unlawful photography" and "pointing of laser at law enforcement officer"). And, as Miller notes, "disorderly conduct is a charge that police use when they can’t think of an actual crime committed."

But let's be clear about something. Annoying a police officer is not "disorderly conduct." Being insubordinate to a police officer -- who is making demands that he has no right to make -- is not "disorderly conduct." Being rude to a police officer is not "disorderly conduct." Even cursing at a police officer is not "disorderly conduct," unless I missed the memo where the First Amendment was repealed.

Nor is rudeness or vulgarity to an officer even particularly worthy of moral opprobrium, in my view, when it was clearly provoked by the officer's own illegal actions, his unjustifiable threats, his blatant abuse of power (and, no doubt, his own rudeness). It's always better not to be rude, of course, but I imagine few of us would be able to contain our anger at the officer in that situation. I'd probably be rude, too. And that's not a crime.

Now, threatening a police officer with bodily harm is a crime, and if the D.A. can manage to portray Conover's alleged statement (which neither of the officers considered important enough to include in their accounts of the incident) that "you better not go back there [into the back seat, where the 12-year-old daughter was sitting] or else we’re going to have some real problems" as a true threat of imminent bodily harm -- which I'm going to say is a real stretch -- then they might be able to get him on a technicality.

But let's be honest, and keep things in context. On the one hand, you have three armed officers clearly and straightforwardly threatening a man with false arrest for doing something perfectly legal (taking a picture on a public road). On the other hand, you have, arguably, a vague "threat" by an unarmed citizen who is distraught because his civil rights are being trampled, his car is being trespassed upon, and his 12-year-old daughter is now also being threatened with a false arrest. Between the officer making threats under color of law to protect his ego, and the father making "threats" to protect his daughter, who is the real criminal? Who's truly "threatening" whom?

The answer is obvious. If Conover's account is even remotely accurate -- and it is consistent with the accounts by Officers McCloud, Lane and May -- the only person who committed a crime here was Officer Starling McCloud. The only "disorderly conduct" that occurred was the ridiculous violation of an innocent citizen's rights by three officers of the law. And it will be an absolute disgrace if Conover is charged with any crime today. Even moreso if he's charged with something and McCloud is not.

What should happen is this: Conover should be released with the county's apologies. McCloud should be arrested and charged with false imprisonment, false arrest, perjury, violations of two citizens' civil rights (Conover's and his daughter's), and any other crimes he may have committed (I suspect there are several others I'm not thinking of). He should be fired immediately. And the Johnson County Sheriff's Office should apologize to the entire public -- their employer -- for this egregious abuse of power, and should institute new policies and training programs to ensure that a similar outrage never happens again.

Anyway, read the whole thing. And I'll keep you updated as soon as I hear anything about how Conover's court appearance went down.

P.S. In case anyone is wondering what "disorderly conduct" actually means, here's the statutory definition under Tennessee law:

§ 39-17-305. Disorderly conduct

(a) A person commits an offense who, in a public place and with intent to cause public annoyance or alarm:

(1) Engages in fighting or in violent or threatening behavior;

(2) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard or other emergency; or

(3) Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose.

(b) A person also violates this section who makes unreasonable noise that prevents others from carrying on lawful activities.

(c) A violation of this section is a Class C misdemeanor.

I can imagine a couple of possible tortured arguments for justifying such a charge against Conover. But those arguments ultimately should not carry the day -- both because they are ultimately wrong on the law, and also because they completely miss the point of what occurred, by all accounts.

Any alleged "disorderliness" on Conover's part -- and, again, I don't think his conduct, as recounted by all parties, actually meets the legal definition in any event -- occurred after the officers engaged in blatantly illegal bullying behavior under color of law, and threatened McCloud with an transparently false arrest for the perfectly legal action of taking a picture. If McCloud got a little "disorderly" in response to their egregious actions, well, there's a good reason for that. If you want your citizenry to stay "orderly," don't trample all over their legal and constitutional rights. When police blatantly abuse their power, a little bit of disorderliness is completely justified.

But, hey, if they want to charge Conover with "disorderly conduct" on some technicality, I won't have a huge problem with it -- so long as they also charge Officer McCloud for all the far more serious crimes that he committed.