Is it a crime for citizens to photograph, video, or take notes of a police officer in the line of duty, or a right protected by the First Amendment of the U.S. Constitution? Locally, such activity, as witnessed recently, will at the very least result in a night spent behind bars.
Alexander Lege
Alexander Lege - a lanky, baby-faced teenager from Gueydan - is not necessarily someone who would strike fear in the hearts of others. He's not someone you'd describe as intimidating either.
Yet, armed with a camera phone and a decent grasp of his First Amendment rights, the 18-year-old college freshman somehow possesses an uncanny ability to invoke those very emotions among local law enforcement officers.
Since Christmas Eve, Lege has been arrested on three separate occasions, and though the charges have varied during each booking, the reason has not. You see, Lege is a self-professed "activist," dubbed "the cop watcher" by the local paper in Eunice, where he had his first two run-ins with the law. His cause: ensuring police accountability by video recording their actions.
Lege's most recent arrest came at the hands of the Lafayette Parish Sheriff's Office on the night of April 11, when he was charged with interfering with the duties of a police officer.
LPSO mugshot of Lege taken April 11.
While heading to IHOP for a late-night dinner with his girlfriend, Lege was sidetracked when he noticed an LPSO deputy involved in a routine traffic stop in the La Hacienda parking lot on Ambassador Caffery. Though IHOP wasn't far, Lege couldn't resist, and instead of whetting his appetite for a late-night breakfast, parked his car nearby and began filming the deputy from about 60 feet away with his camera phone.
The following transcript, taken from a video posted on Lege's Youtube page the day after his release from jail, recounts his arrest by LPSO on April 11:
LPSO Deputy: See what you're doing right now, you're interfering with my investigation. So here's what you're going to do - go head and move on.
Lege: I'm not interfering with your investigation, nor do I mean to.
LPSO Deputy: You drew my attention away form here by videotaping me. Now if you want I'll confiscate your phone, I will take it with me, I will book it into evidence, because you're interfering with my investigation.
Lege: Well I didn't use my phone in the commission of a crime so ...
LPSO Deputy: You're interfering with my investigation. That is the commission of a crime; 14:325, go look it up. Now.
Lege: I did look it up actually.
LPSO Deputy: I'm giving you a chance to go ahead and move along.
Lege: Where can I go and film from a safe distance?
LPSO Deputy: You can't film me from a safe distance.
Lege: Actually I can ... Supreme Court's ruling.
Lege then addresses two additional LPSO deputies who arrived at the scene:
Lege: You are aware the Supreme Court has ruled that you are able to be filmed out in public, you have no expectation to privacy and that filming from a safe distance without making contact with you is not interfering with your traffic stop. There are multiple organizations that do what I just did.
An LPSO supervisor, as requested by Lege, arrived shortly after. Here's their interaction (Note: the supervisor's first line of questions, and Lege's response, are in sequential order as heard on the video):
LPSO Supervisor: What did you stop here for? Come stick your nose where it doesn't belong? What are you involving yourself in a traffic stop for? Then what are we here for dude? What is it you want with me? You got some type of point you're trying to make or something? Are you trying to show off for somebody or something? Why do you feel the need to interject yourself in this situation?
Lege: I do have a point. I do have a point. A neutral third-party would be very helpful in court.
LPSO Supervisor: So, you're a self-appointed witness for everyone? Did he [deputy no. 1] violate anybody's rights? Then why you feel you need to interject yourself in this situation?
Lege: Because something might have happened.
LPSO Supervisor: Wanna do your thing, Randall? [Deputy Randall [Broussard] then reads Lege his Miranda Rights, and he is placed in cuffs and booked into parish jail for the night.]
Upon viewing Lege's video, our interests, from a First Amendment Rights perspective, were piqued. Following some research and several interviews with Lege and the ACLU of Louisiana (ACLU and the Tulane Civil Litigation Clinic weighed in several years ago on the New Orleans Police Department's reaction to citizen video taping), The IND spoke recently with LPSO Capt. Kip Judice.
Though our conversation - through email and by telephone - included the handling of Lege's arrest, our questions also focused on LPSO's training requirements for deputies on the rights granted by the First Amendment, and more specifically, whether those trainings deal directly with the public's right to video an officer in action.
Judice, in an emailed statement, responds:
We are continually reviewing policies, procedures and practices of our employees to make sure we are providing services with the highest standards of ethics, honesty and fairness. We will continue to do so. All deputies receive training with regards to the Constitution and the amendments; we do focus some training on First, Second, Fourth and Fifth amendments. That training is introduced at the Police Academy but reinforced at biannual in-service training. This training occurs continuously. Some may be conducted at roll call, especially when the Legislature passes new laws. For time sake, we send out directives for the supervisors to go over with deputies. This pertains to court decisions as well.
Regarding Lege's arrest, and whether it jibed with LPSO policy, and both state and federal law, including the Aug. 29, 2011, ruling by the U.S. Court of Appeals that affirmed the right to video police, Judice responds:
This deputy was forced to divide his attention between the person who he had stopped for several traffic infractions and the person who pulled up in the parking lot of where the stop ended. The deputy was in a difficult position with the citizen filming from his rear or backside. This presented a safety concern to the officer since it was nighttime and the officer could not see exactly what the citizen was pointing towards him. The distance was about 60 feet but the officer's concern was for his safety and the violators. The deputy has completed his report and it was sent to the District Attorney's Office who will determine if charges are actually accepted or refused.
With respect to this deputy's actions we have reviewed all the circumstances and found that there were no policy violations nor were there any violation of the Supreme Court Ruling. Every situation that an officer handles is different and decisions to arrest are based on a number of considerations. This deputy under these circumstances decided that an arrest was warranted.
We stress by policy that a citizen has a right to video tape us, but that does not supersede the officer safety aspect of the job.
The IND by no means questions the fact that an officer's safety is paramount, yet, Lege's intention to video was clearly stated from the start of his interaction with the deputy. When the deputy objected, Lege asked the deputy to select a safe vantage for him to continue filming the traffic stop. Again, the officer objected.
"There is an absolute constitutional right to film police officers as long as you are not actively interfering," says Marjorie Esman, director of the ACLU of Louisiana, which had already heard of Lege's story by the time she spoke with us in a phone interview last week. "From what I have seen, he's been engaging in absolutely legally protected conduct. His actions have not met the legal standards of interfering with a crime scene."
Whether Lege will receive the ACLU's backing if his case is actually prosecuted by the 15th Judicial District Attorney's Office remains to be seen.
"In terms of our legal strategy or representation, I can't say what we'll do," says Esman. "We did put out a report a couple years ago on a similar case in New Orleans. But I can't discuss our legal strategy beyond that."
For Lege - despite the threat of spending another night in jail, not to mention the stress his arrests have had on his girlfriend - he says he won't give up his activism, and plans to keep on keeping a watchful eye on police.
Regarding the April 11 encounter with LPSO, Lege writes:
I knew neither the officer nor the female. Had nothing happened and everyone acted without overstepping their boundaries, then like every other incident I film I would have deleted the footage and moved on. Filming holds everyone accountable for any wrong doings that MAY happen.
As of this posting, he has yet to be arrested a fourth time. An email asking 15th Judicial District Attorney Mike Harson for a comment on how his office plans to handle the charges against Lege has yet to receive a response.
In concluding, posted below is an excerpt from the introduction of the ACLU's 2010 report involving the First Amendment and a lawsuit filed on behalf of 15 citizens against the NOPD (the three-day trial concluded in March 2010 with the jury unable to reach a verdict on whether the NOPD violated these people's rights or not):
The right to observe the police is guaranteed by the First Amendment of the United States Constitution. Photography and videography are forms of expression protected by the First Amendment so long as members of the public do not interfere with an officer's ability to do his or her job.
When police officers harass and arrest members of the public for observing, photographing, or filming police activities, they are breaking the law. Police harassment and arrests of observers who use cameras or a notepad to record a scene also has a serious chilling effect on the ability of citizens to hold law enforcement accountable. By simply witnessing and documenting possible incidents of police misconduct, individuals can deter police misconduct.
Although members of the public have a right to observe the police, they cannot interfere with police duties. Police work is inherently dangerous, but arrests for "interference" must be based on evidence that the bystander intended to interfere with the police officer's duties. Exercising the constitutional right to observe, photograph, or record police activity in public is not, on its own, "interference." While officers may be unhappy that they are being recorded when they are performing an arrest or conducting other police activity, their discomfort does not make a lawful exercise of a First Amendment right a crime.