Aside from exposing the legal farce of these internal DHS “security” checkpoints, the phrase “Am I free to go” has taken on a life of its own. (We prominently pushed it in both of our feature films.) We knew that this works to withdraw oneself from unwanted police encounters. Now we have more video proof!

To learn more about how to flex your rights at DHS checkpoints, check out our new article on the topic. It also includes tips for flexing your rights at DUI checkpoints, drug checkpoints, and TSA checkpoints.

As you can see from the video, one must literally exercise one’s rights to see success. The act of legal noncompliance is a skill that requires repeated, disciplined effort. (The more you do it, the easier it gets!)

When done correctly, the act creates shame and discomfort among officers tasked with detaining and interrogating innocent people. More importantly, it sends a message to law enforcement that we the people do not support unconstitutional intrusions of our privacy and liberty. That’s what flexing your rights is all about!

Contents:

1. What are “Jury Rights”?
2. Movie Overview
3. Campaign Objectives
4. Budget & Plan
5. Donate & Give Me Feedback

Since 2002, Flex Your Rights’ films have taught you and yours how to assert your constitutional rights on the road, in your home, and on the streets. As part of our ongoing effort to eradicate constitutional illiteracy, I decided to cover those three “theaters of battle” first. (28 million YouTube views later, I think we covered ‘em pretty well!)

Now it’s time for us to flex our rights in a courtroom theater — as members of a jury.

1. What are “Jury Rights”?
Jurys have the right and the power to find a defendant “not guilty” even if the evidence shows that a law was broken. Also known as “jury nullification” or “jury independence,” this is a well-established constitutional doctrine in American case law. It’s purpose is to protect defendants from laws that jurors feel are unjust or misapplied.

Unfortunately, most jurors are not aware of their power to vote their conscience. Even fewer know how to intelligently exercise that right. Moreover, judges often do everything in their power to keep jurors in the dark about their right. (New Hampshire is the only state that allows defense attorneys to inform juries of their right to judge the law.)

But Flex fans like you already know that you can’t count on government officials to tell you about your constitutional rights. Jury rights are no exception. That’s what this new movie is all about!

2. Movie Overview
The working title of the 40-minute film is Not Guilty: A Juror’s Guide to Protecting Good People from Bad Laws.

The main storyline features a young woman being interviewed by a reporter. She’s outing herself as the holdout juror who refused to convict a high-profile medical marijuana grower, leading to his [Spoiler Alert!] acquittal.

Through flashbacks, we learn how she embraced the news of her jury summons. Instead of avoiding service — like so many of us try to do — she carefully prepared to improve her odds of getting selected. We see how she cleverly responds to lawyers’ questions intended to weed-out conscientious jurors. Then we watch her win over jury members initially set on conviction.

Not Guilty will also present a brief history of jury independence, and straightforwardly address the most compelling moral justifications and criticisms of the practice. Viewers will fully appreciate how jury service is one of the most important things they can do to fight abusive government power.

3. Campaign Objectives
First things first, I want to create the most powerful, entertaining, and enduring jury education tool in the universe. Brochures, essays, and expert lectures are essential jury education media. But film has a unique power to inspire us to act.

When it’s completed, I will upload the full-length version and a 5-minute teaser trailer to YouTube. I’ll do my bit to persuade popular bloggers and mainstream media reporters to cover it. But ultimately the video will sink or swim based on its own merits.

It’s impossible to know exactly how popular these new jury rights videos will be. But if view trends for our existing YouTube videos offer any hint, I think that we could reach 10 million new video views within the first year of release.

But video views will be just the first measure of success. The most valuable victories will be won months and years later. These will be counted by the number of viewers who get on juries AND refuse to convict defendants charged with victimless crimes AND then choose to out themselves to the media just like our brave protagonist.

Each and every new “not guilty” verdict sends a powerful message to prosecutors and legislators: We the people will no longer help the government lock up good people for breaking bad laws.

4. Budget & Plan
My primary 2013 goal is to raise $100K to produce Not Guilty. That was the budget for our most recent film, 10 Rules for Dealing with Police. With fewer shooting locations than 10 Rules had, we should be able to achieve even better production quality with a $100K budget.

Los Angeles filmmaker Adam “Hawk” Jensen is set to direct. You might have seen his excellent Reason.TV video, The Government’s War on Cameras. Longtime Flex filmmaker Roger Sorkin is set to produce.

My secondary 2013 goal will be to complete the Not Guilty screenplay. As I explore the topic I’ll interview some of the top lawyers, scholars, and activists covering this issue. These include — but are not limited to — Radley Balko, Clay Conrad, Prof. Paul Butler, Prof. James Duane, Iloilo Jones, Prof. Michael Huemer, Prof. Angela J. Davis, Julian Heicklen, Mark Sisti, and Ed “NJWeedman” Forchion.

5. Donate & Give Me Feedback
In the coming weeks and months I’ll flesh out the project in greater detail. But in the meantime your early support helps aid my writing, research, and outreach to grant-giving foundations.

Speaking of foundation grants, they take lots of time and effort to secure. (And only a precious few fund film.) So every dollar I can raise from you — my most reliable givers — provides more proof that we have a groundswell of support needed to make this project succeed.

Also, many of you are already jury nullification experts who have something to teach me. If you’ve got a short story to share about your own jury experience or you’re a lawyer or defendant with personal insights or ideas, please contact me directly or post a comment to Flex Your Rights’ Facebook page.

I’m excited to hear what you think!

Steve Silverman, Founder & Executive Director

Like the real life incident, the show depicts an illegal search based on a bogus drug dog alert. (It also takes place along the notorious Madison County, Illinois “forfeiture corridor” that trapped Terrance.) The drama also exposes the dirty drug war politics behind such searches — including the constitutional abuses done in pursuit of asset forfeiture money.

And if that’s not enough, the young driver character, Zach, gets arrested and charged with felony wiretapping after recording the incident with his iPhone. (He later finds a “Know Your Rights” website with an uncanny resemblance to the old FlexYourRights.org design!)

I’m not gonna spoil it anymore, but it’s really fun to watch and the ending is superb. You can watch the entire episode here. It looks like the recently pulled the full-length episode, but they’ve still got a 5-min clip of the traffic stop part.

According to the ratings, 10 million people watched this Sunday evening. That’s, perhaps, 10 million more people better prepared to assert their constitutional rights in the face of abusive police power.

Yours in Liberty & Justice,

Steve Silverman

P.S. Do you want to help me create more educational content to inspire ten of millions more people? Please make a small or large donation today. I can’t do it without you.

#1: WTF?! The huge sliding image thing [on the homepage] eats up my entire screen!
You’re right. It’s big — especially if you’re viewing the site from a laptop or desktop PC. But if you have access to a smartphone or tablet device, please see what it looks like there. (If you don’t have access to a mobile device, check out the 2-minute video demo below.)

On your mobile device, scroll up and down a bit. Do you see how all of the navigation buttons are big and easy to click on even the tiniest of mobile screens? See how the text is big and easy to read? And do you notice how you don’t have to do that annoying pinch-to-zoom gesture to find the things you want to see? Pretty cool, huh?

It’s crazy that only one year ago mobile viewers made up 16% of FlexYourRights.org’s traffic. Now mobile is nearly 30% of our traffic … and growing fast! This redesign is my humble effort to keep ahead of this technological shift. (If you prefer laptop or desktop browsing, I think you’ll soon see how the new design give you a better experience too.)

#2: But I want a mobile app!
No you don’t. Mobile apps are like sick cats: they are full of bugs and need constant attention. Worse, mobile apps rarely give you access to the full website.

Instead of requiring you to download a separate app, our new site is based on mobile-first design principles. In other words, no matter what size your device is, the site dynamically fits to your screen.

#3: Those annoying Facebook, Twitter, and YouTube thingys are everywhere.
As a 35-year-old, I’m not a “digital native”. This social media stuff is kinda new to me too. So I try to be a bridge between the YouTube generation and techno-phobic Baby Boomers. (There’s a lot we can learn from each other!)

I created BUSTED, our first know-your-rights video, before YouTube existed. Since then our videos have reached 20 million YouTube views. So please pardon me for being an evangelist for the radical technologies making this possible.

For starters, if you’re only receiving Flex alerts via email, please “like” us on Facebook or follow us on Twitter. And if you’re not yet on Facebook or Twitter, please consider joining so you can instantly share our articles and videos with your friends and loved ones. They’ll be glad you did, and so will I.

In Liberty & Justice,

Steve Silverman

P.S. We’ll be creating more new content than ever before, so be sure to follow us on Facebook and Twitter, or check the site regularly to see what’s hot.

Steve (center) & Scott (right) after ride-along with MPD’s Sgt. Brett Parson (circa 2006)

My fiancée was out of town last Saturday, so I hung out at a bar with Scott Morgan. We reminisced about our amazing 10-year partnership. (In fact, Scott will be the best man at my wedding next spring!)

When we met, I was a 25-year-old trying my darndest to look like an earnest khaki-clad non-profit pro. Scott had impressed me enough on paper with his straight-A transcript from Guilford College where he majored in criminal justice. So I invited him to lunch.

Despite his crazy droopy eyes, his 2-pack-a-day menthol cigarette habit, and frequent use of the word “dude” — I knew that this dude was smart. (Brilliant, perhaps.)

So I invited him to give me his double-barrelled criticism of my screenplay, which would eventually become BUSTED: The Citizen’s Guide to Surviving Police Encounters. After enduring a 30 minute lecture on criminal procedure and constitutional law, I realized Scott was the missing piece that would make this project possible.

10 years later, Scott puffs his trademark electronic cigarette. (He quit real cigarettes for good last year.) Chatting up a young guy on the stool next to us, his face light up when he hears what we do. “I’ve seen all your videos on YouTube!” He explains that he’d been arrested after consenting to a car search. The cops found a single pill. He didn’t have a prescription. Now he’s got a criminal record.

We’re not amazed anymore when people tell us they’ve seen our videos. What’s really cool is that for every I-wish-I-had-known-my-rights story, we hear a success story. Sometimes success is avoiding a police search and driving away with your dignity intact. Other times success is being able to fight a petty possession charge in court.

But once in awhile we meet someone who flexes their rights perfectly — on video — AND is able to broadcast the encounter online to hundreds of thousands of people AND launch a federal lawsuit that could positively impact the way police across the nation are trained to handle traffic stops.

Those wins make our late hours, insecure incomes, and other challenges worth the trouble.

In 2002, Flex Your Rights began as an idea on a 40-page screenplay. By 2012, we’ve broadcast a message of hope to tens of millions of people. If technology continues apace, I expect we’ll look back in similar astonishment of our achievements in 2022.

Thank you for your enduring support in defense of liberty and justice for all.

Steve Silverman,

Founder & Executive Director

I’m not sure what I expected when I showed up to volunteer a year later, but what I found was just Steve. He was broke and living off of beans and rice because paying himself would have depleted the budget for a film he planned to make called BUSTED: The Citizen’s Guide to Surviving Police Encounters. The plan was for the film to put this new organization on the map. Maybe we’d even get paid next year. It was a good plan.

In the years since, Flex Your Rights has become a familiar name among freedom-lovers across the nation and beyond. We’ve produced two hit films, reached over 19 million viewers online, appeared on FOX News, written for major publications, and had the privilege of working alongside the greatest civil libertarians of our generation. Above all, we’ve helped make know-your-rights education a central part the broader movement for liberty and justice in America.

Steve warned me that we’d never make more than a modest living doing this work, and he was right. But he also said we could educate millions, defend the constitution, and even change lives. He was right about that, too.

I want to thank every one of you for supporting us and making it possible for us to continue doing the work we love. More than anything, though, I want to thank Steve, whose vision, commitment, and sacrifice are the reason this great organization exists.

If you’re as impressed as I am with everything Steve has accomplished in the last 10 years, I hope you’ll consider contributing what you can to help Flex Your Rights accomplish even bigger and better things in the years to come.

Sincerely,

Scott Morgan
Associate Director

U.S. Supreme Court building. (Photo credit: Wikipedia)

Mapp v. Ohio
367 U.S. 643, 81 S.Ct. 1684,
6 L.Ed.2d 1081 (1961)

Police officers forcibly entered Dollree Mapp’s home in search of a bombing suspect. In the course of the search, officers failed to produce a valid search warrant and denied Mapp contact with her attorney, who was present at the scene. While the suspect was not found, officers did discover illegal pornography in Mapp’s home, for which she was charged and convicted. Mapp appealed her conviction claiming that the evidence against her should not be admissible in court because it was illegally obtained.

In Mapp v. Ohio, the Supreme Court ruled that illegally obtained evidence is not admissible in State courts. The Court found that the Fourteenth Amendment right to due process of law and the Fourth Amendment right against unreasonable searches and seizures could not be properly enforced as long as illegally obtained evidence continued to be presented in court. The ruling argued that there was no other effective means of deterring widespread Fourth Amendment violations by police. The ruling acknowledged that sometimes a criminal could go free due to improper police conduct, but argued that the interest in promoting professionalism among police outweighed this concern.

The policy established in Mapp v. Ohio is known as the “exclusionary rule.” This rule holds that if police violate your constitutional rights in order to obtain evidence, they cannot use that evidence against you. If you have been charged with a crime and you feel that the evidence was illegally obtained, your lawyer can make a “motion to suppress” in which the judge will consider the manner in which the evidence was obtained and make a decision as to whether or not it can be presented during the trial. In many instances, the evidence is central to the prosecution’s case, therefore when the judge grants a motion to suppress, it is common for all charges to be dropped.

The exclusionary rule is a critical remedy against improper searches, and can be used as an effective protection by citizens who know their rights. The reality is that police officers on the street consider it their primary duty to identify and arrest criminals, and often consider the procedural guidelines which restrict their authority as a secondary concern or even a hindrance. In this context, it is understandable that police sometimes perform searches when they shouldn’t.

Here’s what you should know about illegally seized evidence

1. Consenting to a search automatically makes the evidence admissible in court. You always have the right to refuse search requests!
2. A search is legal if the officer has probable cause to believe you may be engaged in criminal activity.
3. Police officers are quick to conclude that probable cause has been established. Don’t try to be clever, just keep your mouth shut!
4. If you feel that police have seized evidence from you illegally, don’t discuss it with the arresting officer. Get a lawyer!

say hello to my furry Ouija board

In Illinois v. Caballes, the Supreme Court ruled that police do not need reasonable suspicion to use drug dogs to sniff a vehicle during a legitimate traffic stop.

This decision stems from the case of Roy Caballes, who was pulled over for speeding and subsequently arrested for marijuana trafficking after a drug dog was brought to the scene and alerted on his vehicle. The Illinois Supreme Court reversed his conviction, finding that a drug sniff was unreasonable without evidence of a crime other than speeding.

But in a 6-2 ruling, the Court held that the Fourth Amendment is not implicated when police use a dog sniff during the course of a legal traffic stop. Justice Stevens wrote the Opinion of the Court, finding that since dog sniffs only identify the presence of illegal items — in which citizens have no legitimate privacy interest — the Fourth Amendment does not apply to their use.

What this ruling means for you

The Caballes ruling authorizes police to walk a drug dog around the vehicle during any legitimate traffic stop. If the dog signals that it smells drugs, police then have probable cause to conduct a search.

However, the ruling does not allow police to detain you indefinitely until dogs arrive. The legitimacy of the traffic stop still depends on its duration. Basically, if police can’t bring a dog to the scene in the time it takes to run your tags and write a ticket, the use of the dog becomes constitutionally suspect. So if you’re pulled over and police threaten to call in the dogs, you are not required to consent to searches.

Usually, the officer won’t have a police dog on hand and he needs reasonable suspicion to detain you while waiting for the drug dog. Before the dog arrives, you have the right to determine if you can leave by asking “Officer, am I free to go?” If the officer refuses and detains you until the dogs come, you have the right to remain silent and refuse to consent to any searches.

If a dog arrives, you have the right the right to refuse to consent to a dog sniff, even if the officer claims you have to. Be aware that unlocking your car at the officer’s request or handing the officer your keys is the same as consenting to a search. You always have the right to refuse by stating “Officer, I don’t consent to any searches.” (Repeat, if necessary.)

If a judge determines that officer had no justification to detain you until the dog arrived, any evidence discovered by the dog may be thrown out in court.

What this ruling does not do

Caballes does not constitute a significant change in the constitutionality of dog sniffs. This case essentially clarifies previous rulings in which the Court was reluctant to apply the Fourth Amendment to the use of drug dogs.

The ruling also does not apply to the use of police dogs in situations other than legitimate traffic stops. For example, suspicionless dog sniffs in parking lots or on sidewalks are not authorized by Caballes, and the Court has found random drug checkpoints unconstitutional. Nonetheless, the Court’s “no privacy interest in contraband” doctrine is a nasty one, but it might open up possibilities for future legal challenges.

Possible legal challenges to Caballes

The Supreme Court recently agreed to hear a case that casts doubt on the effectiveness of drug dogs to generate probable cause for a vehicle search. In Florida v. Harris, the Florida Supreme Court ruled that a drug dog’s reliability record must also be considered to determine probable cause.

The case will provide long-due scrutiny to the legal assumption that dogs are reliable contraband indicators. In their dissenting opinion of Caballes, Justices Souter and Ginsburg pointed to studies showing that drug dogs frequently return false positives (12.5-60% of the time, according to one study). A recent Chicago Tribune field study revealed that drug dogs are more often wrong than they are right when alerting for drugs in vehicles. (Worse, police often train their dogs to falsely “alert” on suspected vehicles.)

A high court ruling in favor of Harris would effectively overturn Caballes, because a dog “alert” would no longer be enough to justify a vehicle search.

Medical marijuana and the murkiness of “contraband”

17 states and the District of Columbia have legalized the use of medical marijuana for citizens with a doctor’s recommendation. As such, the Caballes “contraband” distinction fails in states such as California or Colorado where hundreds of thousands of people are legally authorized to possess and use it.

After all, if police dogs are regularly alerting on substances that are no longer illegal, that flips the ”no privacy interest in contraband” doctrine on its head. For example, a vehicle search resulting from a drug dog alerting for marijuana in Mendocino or Boulder is unconstitutional under Caballes. The odor of marijuana can no longer be probable cause, because prior to the search it’s impossible for an officer (or a drug dog) to know whether or not the detected marijuana is contraband or not.

While this defense might not work in federal courts — which have yet to recognize the legal standing of medical marijuana — it could be used to challenge dog searches in states that have legalized medical marijuana.

Related articles

• How the War on Drugs Distorts Privacy Law – Stanford Law Review (justcrim.typepad.com)
• SCOTUS Will Consider Dogs’ Reliability As Probable Cause Generators (reason.com)

My latest YouTube video takes a look at this tricky question.

Last week the City of Boston agreed to pay Simon Glik $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his 2007 felony arrest for videotaping police roughing up a suspect. Prior to the settlement, the First Circuit Court of Appeals unanimously ruled that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The Boston Police Department now explicitly instructs its officers not to arrest citizens openly recording them in public.

Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you’re an aspiring cop watcher you must be uniquely prepared to deal with hostile cops.

If you choose to record the police you can reduce the risk of terrible legal consequences and video loss by understanding your state’s laws and carefully adhering to the following rules.

Rule #1: Know the Law (Wherever You Are)

Conceived at a time when pocket-sized recording devices were available only to James Bond types, most eavesdropping laws were originally intended to protect people against snoops, spies, and peeping Toms. Now with this technology in the hands of average citizens, police and prosecutors are abusing these outdated laws to punish citizens merely attempting to document on-duty police.

The law in 38 states plainly allows citizens to record police, as long as you don’t physically interfere with their work. Police might still unfairly harass you, detain you, or confiscate your camera. They might even arrest you for some catchall misdemeanor such as obstruction of justice or disorderly conduct. But you will not be charged for illegally recording police.

Twelve states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—require the consent of all parties for you to record a conversation. But do not despair if you live in these states: All but 2 —Massachusetts and Illinois—have an “expectation of privacy provision” to their all-party laws that courts have ruled does not apply to on-duty police (or anyone in public). In other words, it’s technically legal in those 48 states to openly record on-duty police.

IMPORTANT UPDATES: As mentioned earlier, the First Circuit Court of Appeals covering Massachusetts declared the state’s ban on recording police to be unconstitutional. In May, The Seventh Circuit Court of Appeals covering Illinois also declared the state’s harsh recording ban unconstitutional, ordering authorities to stop enforcing it. In November, The Supreme Court of the United States rejected Illinois’ petition to appeal the Seventh Circuit Court’s ruling.

Rule #2 Don’t Secretly Record Police

In most states it’s almost always illegal to record a conversation in which you’re not a party and don’t have consent to record. Massachusetts is the only state to uphold a conviction for recording on-duty police, but that conviction was for a secret recording where the defendant failed to inform police he was recording. (As in the Glik case, Massachusetts courts have ruled that openly recording police is legal, but secretly recording them isn’t.)

Fortunately, judges and juries are soundly rejecting these laws. Illinois, the state with the most notorious anti-recording laws in the land, expressly forbids you from recording on-duty police. Early last month an Illinois judge declared that law unconstitutional, ruling in favor of Chris Drew, a Chicago artist charged with felony eavesdropping for secretly recording his own arrest. Last August a jury acquitted Tiawanda Moore of secretly recording two Chicago Police Internal Affairs investigators who encouraged her to drop a sexual harassment complaint against another officer. (A juror described the case to a reporter as “a waste of time.”) In September, an Illinois state judge dropped felony charges against Michael Allison. After running afoul of local zoning ordinances, he faced up to 75 years in prison for secretly recording police and attempting to tape his own trial.

The lesson for you is this: If you want to limit your legal exposure and present a strong legal case, record police openly if possible. But if you videotape on-duty police from a distance, such an announcement might not be possible or appropriate unless police approach you.

Rule #3: Respond to “Shit Cops Say” 

When it comes to police encounters, you don’t get to choose whom you’re dealing with. You might get Officer Friendly, or you might get Officer Psycho. You’ll likely get officers between these extremes. But when you “watch the watchmen,” you must be ready to think on your feet.

In most circumstances, officers will not immediately bull rush you for filming them. But if they aren’t properly trained, they might feel like their authority is being challenged. And all too often police are simply ignorant of the law. Part of your task will be to convince them that you’re not a threat while also standing your ground.

“What are you doing?”

Police aren’t celebrities, so they’re not always used to being photographed in public. So even if you’re recording at a safe distance, they might approach and ask what you are doing. Avoid saying things like “I’m recording you to make sure you’re doing your job right” or “I don’t trust you.”

Instead, say something like “Officer, I’m not interfering. I’m asserting my First Amendment rights. You’re being documented and recorded offsite.”

Saying this while remaining calm and cool will likely put police on their best behavior. They might follow up by asking, “Who do you work for?” You may, for example, tell them you’re an independent filmmaker or a citizen journalist with a popular website/blog/YouTube show. Whatever you say, don’t lie—but don’t let police trick you into thinking that the First Amendment only applies to mainstream media journalists. It doesn’t.

“Let me see your ID.”

In the United States there’s no law requiring you to carry a government ID. But in 24 states police may require you to identify yourself if they have reasonable suspicion that you’re involved in criminal activity.

But how can you tell if an officer asking for ID has reasonable suspicion? Police need reasonable suspicion to detain you, so one way to tell if they have reasonable suspicion is to determine if you’re free to go. You can do this by saying “Officer, are you detaining me, or am I free to go?”

If the officer says you’re free to go or you’re not being detained, it’s your choice whether to stay or go. But if you’re detained, you might say something like, “I’m not required to show you ID, but my name is [your full name].” It’s up to you if you want to provide your address and date of birth if asked for it, but I’d stop short of giving them your Social Security number.

“Please stop recording me. It’s against the law.”

Rarely is it advisable to educate officers about the law. But in a tense recording situation where the law is clearly on your side, it might help your case to politely present your knowledge of state law.

For example, if an insecure cop tries to tell you that you’re violating his civil liberties, you might respond by saying “Officer, with all due respect, state law only requires permission from one party in a conversation. I don’t need your permission to record so long as I’m not interfering with your work.”

If you live in one of the 12 all party record states, you might say something like “Officer, I’m familiar with the law, but the courts have ruled that it doesn’t apply to recording on-duty police.”

If protective service officers harass you while filming on federal property, you may remind them of a recently issued directive informing them that there’s no prohibition against public photography at federal buildings.

“Stand back.”

If you’re approaching the scene of an investigation or an accident, police will likely order you to move back. Depending on the circumstances, you might become involved in an intense negotiation to determine the “appropriate” distance you need to stand back to avoid “interfering” with their work.

If you feel you’re already standing at a reasonable distance, you may say something like, “Officer, I have a right to be here. I’m filming for documentation purposes and not interfering with your work.” It’s then up to you to decide how far back you’re willing to stand to avoid arrest.

Rule #4: Don’t Share Your Video with Police

If you capture video of police misconduct or brutality, but otherwise avoid being identified yourself, you can anonymously upload it to YouTube. This seems to be the safest legal option. For example, a Massachusetts woman who videotaped a cop beating a motorist with a flashlight posted the video to the Internet. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her. (As usual, the charges against her were later dropped.)

On the other hand, an anonymous videographer uploaded footage of an NYPD officer body-slamming a man on a bicycle to YouTube. Although the videographer was never revealed, the video went viral. Consequently, the manufactured assault charges against the bicyclist were dropped, the officer was fired, and the bicyclist eventually sued the city and won a $65,000 settlement.

Rule #5: Prepare to be Arrested

Keene, New Hampshire resident Dave Ridley is the avatar of the new breed of journalist/activist/filmmaker testing the limits of the First Amendment right to record police. Over the past few years he’s uploaded the most impressive collection of first-person police encounter videos I’ve ever seen.

Ridley’s calm demeanor and knowledge of the law paid off last August after he was arrested for trespassing at an event featuring Vice President Joe Biden. The arresting officers at his trial claimed he refused to leave when ordered to do so. But the judge acquitted him when his confiscated video proved otherwise.

With respect to the law Ridley declares, “If you’re rolling the camera, be very open and upfront about it. And look at it as a potential act of civil disobedience for which you could go to jail.” It’s indeed disturbing that citizens who are not breaking the law should prepare to be arrested, but in the current legal fog this is sage advice.

“Shut it off, or I’ll arrest you.”

At this point you are risking arrest in order to test the boundaries of free speech. So if police say they’ll arrest you, believe them. You may comply by saying something like “Okay, Officer. But I’m turning the camera off under protest.”

If you keep recording, brace yourself for arrest. Try your best not to drop your camera, but do not physically resist. As with any arrest, you have the right to remain silent until you speak with a lawyer. Use it.

Remember that the camera might still be recording. So keep calm and act like you’re being judged by a jury of millions of your YouTube peers, because one day you might be.

Rule #6: Master Your Technology

Smartphone owners now outnumber users of more basic phones. At any moment there are more than 100 million Americans in reach of a device that can capture police misconduct and share it with the world in seconds.

If you’re one of them, you should consider installing a streaming video recording and sharing app such as Qik or Bambuser. Both apps are free and easy to use.

Always Passcode Protect Your Smartphone

The magic of both apps is that they can instantly store your video offsite. This is essential for preserving video in case police illegally destroy or confiscate your camera. But even with these apps installed, you’ll want to make sure that your device is always passcode protected. If a cop snatches your camera, this will make it extremely difficult for her to simply delete your videos. (If a cop tries to trick you into revealing your passcode, never, never, never give it up!)

Keep in mind that Qik and Bambuser’s offsite upload feature might be slow or nonexistent in places without Wi-Fi or a strong 3G/4G signal. Regardless, your captured video will be saved locally on your device until you’ve got a good enough signal to upload offsite.

Set Videos to “Private”

Both apps allow you to set your account to automatically upload videos as “private” (only you can see them) or “public” (everyone can see them). But until police are no longer free toraid the homes of citizens who capture and upload YouTube videos of them going berserk, it’s probably wise to keep your default setting to “private.”

With a little bit of practice you should be able to pull your smartphone from your pocket or purse, turn it on, enter your passcode, open the app, and hit record within 10 seconds. Keep your preferred app easily accessible on your home screen to save precious seconds. But don’t try to shave milliseconds off your time by disabling your passcode.

Both apps share an important feature that allows your video to be saved if your phone is turned off put to sleep—even if you’re still recording. So if you anticipate that a cop is about to grab your phone, quickly tap the power button to put it to sleep. Without your passcode, police won’t be able to delete your videos or personal information even if they confiscate or destroy your phone.

With the iPhone 4 and Samsung Galaxy Android devices I tested, when the phone is put to sleep the Qik app immediately stops recording and uploads the video offsite. But if the phone is put to sleep while Bambuser records, the recording continues after the screen goes black.

This Bambuser “black out” feature is a double-edged sword. While it could easily trick cops into thinking you’re not recording them, using it could push you into more dangerous legal territory. As previously mentioned, courts have shown a willingness to convict citizens for secretly recording police. So if you’re somehow caught using this feature it might be easier for a prosecutor to convince a judge or jury that you’ve broken the law. It’s up to you to decide if the increased legal risk is worth the potential to capture incriminating police footage.

Other Recording Options

Cameras lacking offsite recording capability are a less desirable option. As mentioned earlier, if cops delete or destroy your footage—which happens way too often—you might lose your only hope of challenging their version of events in court. But if you can hold on to your camera, there are some good options.

Carlos Miller is a Miami-based photojournalism activist and writer of the popular Photography is Not a Crime blog. While he carries a professional-end Canon XA10 in the field, he says “I never leave home without a Flip camera on a belt pouch. It’s a very decent camera that’s easier to carry around.”

The top-of-the-line Flip UltraHD starts at $178, but earlier models are available for $60 on Amazon. All flip models have one-button recording, which allows you to pull it out of your pocket and shoot within seconds. The built-in USB then lets you upload video to YouTube or other sharing sites through your PC.

Small businessman and “radical technology” educator Justin Holmes recommends the Canon S-series line of cameras. In 2008, his camera captured a police encounter he had while rollerblading in Port Dickenson, New York. His footage provides an outstanding real-life example of how a calm camera-toting citizen can intelligently flex their rights.

“I typically carry a Canon S5-IS,” Holmes says. “But if I was going to buy one new, I’d go for the SX40-HS. If I were on a budget and buying one used, I’d go for S2-IS or S3-IS.” The features he regards as essential include one-touch video, high-quality stereo condenser microphones, fast zoom during video, and 180×270 variable angle LCD. But the last feature he regards as “absolutely essential.” With it the user can glance at the viewfinder while the camera is below or above eye level.

Rule #7: Don’t Point Your Camera Like a Gun

“When filming police you always want to avoid an aggressive posture,” insists Holmes. To do this he keeps his strap-supported camera close to his body at waist level. This way he can hold a conversation while maintaining eye contact with police, quickly glancing at the viewfinder to make sure he’s getting a good shot.

Obviously, those recording with a smartphone lack this angled viewfinder. But you can get a satisfactory shot while holding your device at waist level, tilting it upward a few degrees. This posture might feel awkward at first, but it’s noticeably less confrontational than holding the camera between you and the officer’s face.

Also try to be in control of your camera before an officer approaches. You want to avoid suddenly grasping for it. If a cop thinks you’re reaching for a gun, you could get shot.

Becoming a Hero

If you’ve recently been arrested or charged with a crime after recording police, contact a lawyer with your state’s ACLU chapter for advice as soon as possible. (Do not publicly upload your video before then.) You may also contact Flex Your Rights via Facebook or Twitter. We’re not a law firm, but we’ll do our best to help you.

If your case is strong, the ACLU might offer to take you on as a litigant. If you accept, your brave stand could forever change the way police treat citizens asserting their First Amendment right to record police. This path is not for fools, and it might disrupt your life. But next time you see police in action, don’t forget that a powerful tool for truth and justice might literally be in your hands.

Related articles

• Seventh Circuit Says Citizens Have a Right to Record the Police (blogs.findlaw.com)
• Boston pays $170k to settle cell phone recording lawsuit (arstechnica.com)