“Clever” Tactics to Avoid Recording Police Activity Don’t Pass the Smell Test

by | March 4, 2021

Gordon Graham here. I recently read about a very “clever” technique to help thwart the efforts of those who want to record officers or confront cops with “First Amendment audits.” During these audits, members of the public record police activity and then post the recordings on social media sites.

An officer had the ingenious idea of playing recorded songs during an audit. The thinking: This tactic would prevent the broad distribution of the recording because the music is copyrighted and thus social media platforms would not carry it for fear of copyright violations. I love people who “think differently” and I respect you for your brilliant thought process.

“Gordon, you are obviously laying a foundation for your thoughts on this issue so please just make your point.”

No can do. As a lawyer, I have an obligation to the profession in increasing billable hours so I will digress just a bit to some thoughts from the 80s.

Way back then I was a field sergeant in Los Angeles and doing quite a bit of training for my department. One afternoon I received a phone call from the assistant chief in charge of training. He was an HQ guy I had met in the past and after all the introductory comments on the call he posed this question: “How many major drug seizures have you been involved in so far in your career?” This was an interesting query and I wondered where the conversation was going.

I had been very active as a cop prior to promoting and, as a sergeant, had a great squad of cops who seized a lot of drugs. As I was calculating a number to impress the chief, a thought popped into my head: What is his definition of “major drug seizures?” I posed that clarification question to him and his response floored me: “More than two kilos of heroin, or more than 10 kilos of cocaine, more than a pound of ‘rock’ or more than 20 kilos of marijuana.”

I was embarrassed to tell him the truth—which was “none.” While I dealt with a lot of drugs over the years, I was working in Los Angeles and most of my arrests for dope involved “personal use” or occasionally some low-level street dealer who had relatively small amounts of dope for sale. While I had seen some major loads seized by LAPD and LASD, I had no personal involvement in these big arrests.

I was taught early in my career to remember the “spirit of the law” and not just the “letter of the law,” and over time I became a fan of the thinking, “Just because the law says you can do something does not make it the right thing to do.”

When I told him “none,” he explained the CHP was going to kick off a program called “Operation Pipeline,” which involved the processes and laws for seizing drugs from vehicles traveling on major roadways (the pipeline). He wanted me to teach a portion of the program dealing with the legal aspects of these arrests and seizures, but to do that, I needed to have some knowledge of major drug arrests. Long story short I got involved with some officers who had made lots of major drug seizures. At that time, I knew I was doing good stuff—helping train cops to get drugs off the street, and that was a good goal to have.

Stretching the Law

During my ride-alongs and discussions with experienced dope cops, I learned a lot. Almost all the cops I dealt with were solid and doing things right. However, over the time I was teaching “Legal Aspects of Operation Pipeline” I saw some behaviors that (while not illegal) were “stretching the limits” of the law.

One cop was very clever. When he stopped drivers for a vehicle code violation (and this cop knew the code better than anyone I had ever met, and he could come up with some section of the V.C. to justify the stop), if he suspected the car was carrying some serious dope during his investigative efforts, he would start this line of questioning:

“Have you used cocaine today?”

And the driver would answer, “No.”

And he would then follow up with, “Have you ever used cocaine in your life?”

And some drivers would say, “Yes.”

And his next question was, “And when was that?”

And the response would be, “Last year” (or some other time frame).

And the cop’s next question was, “Did you get arrested for using cocaine then?”

And the suspect would say, “No.”

And then the cop said, “Well, you are under arrest for that now.”

His logic was (and this is indeed a stretch) that use of cocaine was a felony and there was a three-year statute of limitations in California. The driver had just admitted he had committed a felony a year ago and had not been arrested. So, “You are under arrest now” was a legal arrest and thus the cop had probable cause to search the vehicle for evidence in the vehicle. When I read the involved report, that is exactly what he wrote, and the D.A. filed the case.

In my head, that was a “stretttttttch” of the law. The prosecutors did not have a problem with it. But I had a problem with it. I was taught early in my career to remember the “spirit of the law” and not just the “letter of the law,” and over time I became a fan of the thinking, “Just because the law says you can do something does not make it the right thing to do.”

How Officers Should Behave During First Amendment Audits

This brings us back to the “First Amendment audit” issue. So here is this person who wants to “set a cop up” for national embarrassment by recording police activity and posting it for widespread distribution. By the way, for any cop who has been under a rock since the start of their career, people can (under most circumstances) video and audio record you—seriously!

I mention this because in conversations with Bruce Praet, co-founder of Lexipol, I learned many cops think people cannot record police activity. Those same cops then attempt to take away the recording device or arrest someone and it goes downhill from there—but I am again digressing.

The thinking of the cops who decided to play music to prevent the distribution of video recordings of them is indeed clever and ingenious. But the optics are troublesome. Not considering the legality of the use of this copyrighted material for these purposes, to me this tactic does not pass the “smell test.”

I think we would be better served by understanding there are a lot of people distrust cops and what cops do and they want to embarrass law enforcement personnel. Further, we must understand just about everything we do is ultimately going to become public. We must focus on being the solid professional law enforcement officers we are and ensuring that everything we do is done right. And when confronted by someone who is recording police activity—perhaps because they have negative views of law enforcement—we must strive to maintain our cool and not say or do anything that would be embarrassing if it were recorded and shared nationally.

The last lines of the above paragraph are much easier said than done and I fully understand that. In my younger years on the job (when I was much less mature) I would occasionally say and do things I later regretted. Fortunately, I had the sense to accept the advice from senior officers who were apparently unflappable—they explained it was “part of the job” and to ignore “the slings and arrows” from those who hated law enforcement.

Rise Above the Negativity

I will close with this. On a recent morning hike up and down the beach here in Southern California I saw some motorcycle cops from a nearby police department on a training day. As I was admiring their cone work and their braking drills, the sergeant recognized me and introduced me to the group. In the ensuing hour we chatted about all the “goings on” locally and nationally and all the “baloney” (the other word will not get past the editor of this piece—she is pretty sharp) and I told them I was envious; my motorcycle days are filled with great memories. But I am also glad to be retired with all the distrust and negativity directed at cops today.

I was very impressed with their comments—they love their job and love helping people who needed help and they love knowing they are making a positive difference. It was a very nice chat with these professionals and left me with a good feeling in my heart. I then chatted telephonically with some fellow “old guys” I used to ride with and told them about those motor cops I had just met. We all agreed there are many aspects of the job today that are extremely difficult, but as professionals, we should rise above all the negativity and do what we do—saving lives.

To all of you who are active in the profession today, my hat is off to you for your great work.

GORDON GRAHAM is a 33-year veteran of law enforcement and the co-founder of Lexipol, where he serves on the current board of directors. Graham is a risk management expert and a practicing attorney who has presented a commonsense risk management approach to hundreds of thousands of public safety professionals around the world. Graham holds a master’s degree in Safety and Systems Management from University of Southern California and a Juris Doctorate from Western State University.

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