Law & Disorder / Civilization & Discontents

Jury says journalist arrested while video taping police is not guilty

Miami man plans to sue department over unauthorized deletion of his footage.

by Timothy B. Lee - Nov 8 2012, 8:00pm EST

Police Major Nancy Perez, moments before she arrested Miller on January 31, 2012.

Image courtesy of Carlos Miller

A jury acquitted a Florida photojournalist who was arrested on January 31 while documenting the eviction of Occupy Miami protesters. The police accused Carlos Miller, author of a popular blog about the rights of photojournalists, of disobeying a lawful police order to clear the area. But another journalist testified he had been standing nearby without incident.

After Miller's January arrest, the police confiscated his camera and deleted some of his footage, including video documenting his encounter with the police. That may prove to be an expensive mistake. Miller was able to recover the footage, which proved helpful in winning his acquittal. He says his next step will be to file a lawsuit charging that the deletion of the footage violated his constitutional rights.

"I was questioning their orders. That's what I do"

The one-day trial occurred on Wednesday. In a Thursday interview, Miller told us that the prosecution accused him of "being antagonistic to police because I was questioning their orders." However, he said, "that's what I do. I know my rights. I know the law."

During the trial, Miller's attorney, Santiago Lavandera, admitted that Miller used some coarse language with the police officers at one point during the evening. But he stressed that it wasn't the job of a journalist to meekly obey police orders.

"When you’re a journalist, your job is to investigate," Lavandera told the jury. "Not to be led by your hand where the police want you to see, so they can hide what they don’t want you to see. As long as you are acting within the law, as Mr. Miller was, you have the right to demand and say, ‘no, I’m not moving, I have the right to be here. This is a public sidewalk, I have the right to be here.’"

Miller told us the jury deliberated for only about half an hour before returning a verdict of "not guilty." He said his case was helped by the footage he recovered from his camera. That footage, he told us, clearly showed that there were other journalists nearby when he was arrested.

One of them was Miami Herald reporter Glenn Garvin, who testified in Wednesday's trial. According to Miller, when Garvin saw Miller being arrested by Officer Nancy Perez, "he immediately thought he was going to get arrested, so he asked Nancy Perez if it was alright for him to be standing there and she said, yes, he was under no threat of getting arrested."

Enlarge / Perez is cross-examined by Miller attorney Arnold Trevilla.

Bruce Wayne Stanley

There's a history of confrontations between Miller and the police, and Miller said the police had singled him out for that reason. An e-mail disclosed during the trial showed the police had been monitoring Miller's Facebook page and had sent out a notice warning officers in charge of evicting the Occupy Miami protestors that Miller was planning to cover the process.

Constitutional challenge

Now that Miller doesn't have a jail sentence hanging over his head, he's planning to turn the tables on the Miami-Dade Police Department. He plans to file a lawsuit arguing the deletion of his footage by the police violated his constitutional rights.

According to Miller, such incidents are disturbingly common around the country. As camera-equipped cell phones have proliferated, ordinary Americans have increasingly used the devices to document how police officers do their jobs. And he said he heard of numerous incidents in which the police confiscate these devices and delete potentially embarrassing footage.

Miller told us most victims don't stand up for their rights in court. In many cases, people are happy simply to have the police drop the charges against them. But Miller isn't so easily cowed.

If Miller files his lawsuit, he will join a handful of other plaintiffs who have gone to court to vindicate their rights to record the activities of police officers. Judges in Massachusetts and Illinois have held it unconstitutional to arrest people for recording the activities of police. A Baltimore man has sued the police for deleting his footage from his cell phone. The Obama administration filed a brief in the case arguing that deleting such footage violates the Fourth Amendment.

Miller points out that if an ordinary citizen deleted footage relevant to an alleged crime, he could be charged with destruction of evidence, a felony. He believes that police officers should also be held accountable when they seize cameras and delete footage.