Posted on Mar 05, 2014

You wouldn’t think that simply filming a traffic stop with your cell phone camera would land you in jail. But not only did Florida resident Brandy Berning spend a night in jail for doing just that, she was reportedly also physically abused after refusing to forfeit her First Amendment right to record police conduct.

After Berning allegedly used a High Occupancy Vehicle (HOV) lane illegally, she was pulled over by Lieutenant William O’Brien. Everything was transpiring just like a normal traffic stop would … until Berning mentioned that she was recording the conversation.

Lt. O’Brien then lied to Berning by telling her she had committed a felony and demanded her phone. When she refused, Berning claims O’Brien tried to force her from the car, spraining her wrist. Ultimately, the ordeal ended with Berning spending the night in jail, but no charges were filed.

Some police officers may be uncomfortable with the idea of peaceful citizens filming their behavior. However, the Department of Justice plainly says, “It is now settled law that the First Amendment protects individuals who photograph or otherwise record officers engaging in public activity in a public place."

The Case of Curtis Harris

Surveillance might be the only way for common citizens to hold police accountable for their actions. A prime example of why would be the police brutality case of Curtis Harris.

In 2003, Harris was arrested by Milwaukee Police following a domestic dispute. When Harris was taken back to the police station, Officer Kevin Clark threw him headfirst into a concrete wall, rendering him a quadriplegic for life.  Officer Clark claimed Harris threw a punch beforehand, which triggered his defensive reaction.

 To make a long, tragic story short, the law firm of Hupy and Abraham was able to secure $3 million for Mr. Harris, the largest police brutality award in Wisconsin history.

Fortunately, the altercation was caught on a police surveillance camera, proving Harris did not throw a punch at Officer Clark. Attorney Jason Abraham, who worked on the case, went so far as to say, “Without the video tape, there probably is no case here.”

And That’s the Point

Without video evidence to prove a police brutality claim, police can get away with almost anything simply because their statements will almost always be perceived as most credible regardless of where the truth lies.

One can’t help but wonder what would’ve happened in Curtis Harris’s case without the video. Or maybe we already know …

In 2012, a Houston man named Sebastian Prevot went past the white line at a four-way stop and two officers then tried to pull him over. In fear of being detained and having his car impounded, Prevot headed home instead, driving the speed limit and stopping at every stop sign.

By the time he arrived home, 10 squad cars were already there. Prevot claims to have gotten out of his car and put his hands in the air as police drew their weapons. From there, the police proceeded to beat Prevot, which they don’t even deny, to the point that the jailhouse doctor insisted he go straight to the hospital instead of a jail cell.

The Houston Police Department claims Prevot evaded arrest, and “earned” his injuries, whereas Prevot claims he was compliant from the start. Prevot’s wife, Annika Lewis, filmed the whole thing on her cell phone camera, but the footage has never seen the light of day.

When the officers realized Lewis was recording what was taking place on her own property, they tried to grab the phone from her. When she refused to let it go, they twisted her arm and punched her multiple times. Once they got a hold of the phone, they took it apart to make sure no evidence would be left behind.

In the end, Prevot’s car was impounded and never returned, his excessive force complaint was dismissed and he’s now considered a felon for evading arrest. There will be no $3 million settlement for Prevot because there is no video footage to back up his claims.

The officers who roughed up Prevot emerged from the incident unscathed. HPD Internal Affairs found their behavior justified and the Justice Department isn’t reviewing the case.

The law clearly states that the First Amendment grants citizens the right to record police behavior. Unfortunately, police are all too often trying to suppress this right because it seems to be the only thing keeping them from abusing their authority and getting away with it.

Jill Erin Wellskopf
Connect with me
Director of Marketing, Hupy and Abraham