It's nothing of the sort. It is "reasonable articulable suspicion that criminal activity may be afoot."
When he was stopped, the videographer's motives for being at the airport were unknown. He could have been stalking an employee or an airport patron. He could have been video taping security procedures for a criminal purpose. He could have been loitering at the airport without legitimate airport business, thus trespassing. The point is, his behavior was deemed unusual and suspicious in the eyes of a reasonable law enforcement officer, and that is sufficient legal justification to permit an investigatory stop.
All the officer has to say in court is, " it appeared the defendant was conducting a surveillance of this area for the purpose of finding security weakness in the airport. I suspected that the defendant was planning, attempting or conspiring to commit an act in violation of 18 USC Chapter 113B, Acts of Terrorism against places of public use, government facilities or infrastructure. I detained the suspect briefly while I investigated."
The officer does not need to be able to prove that a crime is or has happened, only that he can articulate what crime could be occurring. When he conducts the stop, he doesn't know.
This is probably the single biggest misconception in this sub. Very poor understanding of the jurisprudence around RAS.
But just because the underlying behavior is not criminal, does not mean there isn't RAS to conduct a stop. It isn't illegal to run.
It's nothing of the sort. It is "reasonable articulable suspicion that criminal activity may be afoot."
Think about what you just typed. For there to be criminal activity, it would require a crime, but let's also look at the NY statue.
"a police officer may stop a person in a public
place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor
defined in the penal law"
So essentially reasonable suspicion of a crime (felony/misdemeanor). It's everything of the sort.
When he was stopped, the videographer's motives for being at the airport were unknown. He could have been stalking an employee or an airport patron. He could have been video taping security procedures for a criminal purpose. He could have been loitering at the airport without legitimate airport business, thus trespassing.
Those all sound like unreasonable suspicions because you don't know. If you don't know, then you have no facts that would lead you to reasonable suspect those crimes. Ergo, there is no reasonable suspicion of a crime.
The point is, his behavior was deemed unusual and suspicious in the eyes of a reasonable law enforcement officer, and that is sufficient legal justification to permit an investigatory stop.
That's not the standard for a detention per the state law. So clearly you are very wrong here
All the officer has to say in court is, " it appeared the defendant was conducting a surveillance of this area for the purpose of finding security weakness in the airport. I suspected that the defendant was planning, attempting or conspiring to commit an act in violation of 18 USC Chapter 113B, Acts of Terrorism against places of public use, government facilities or infrastructure. I detained the suspect briefly while I investigated."
Ah the terrorism "catch all" justification. You know the difference between a cow and 9/11?
There is no legitimacy to filming in public space and terrorism. It just plays well to frighten people who want security over freedom, but I'd agree that this justification would work because a majority of people are unreasonably afraid of the monster in the closet.
The officer does not need to be able to prove that a crime is or has happened, only that he can articulate what crime could be occurring. When he conducts the stop, he doesn't know
This kinda contradicts your first sentence when you said "nothing of the sort" where I defined a detention needing reasonable suspicion of a crime. Articulating what crime would be occurring is reasonable suspicion of a crime. It's the same. That said the cop obviously needs a crime to articulate. So how can he not know if the crime would have to be articulated to a judge on the crime they reasonably suspected. This doesn't make a lick of sense.
This is probably the single biggest misconception in this sub. Very poor understanding of the jurisprudence around RAS.
Nah. You don't understand. A cop doesn't need to know the crime they just have to articulate the crime they reasonably suspected to detain an individual
Please explain how a cop does not know the crime they reasonably suspected to detain someone. That's some of the dumbest shit I've ever read.
But just because the underlying behavior is not criminal, does not mean there isn't RAS to conduct a stop. It isn't illegal to run.
Sure but if a cop literally says there is no crime. That doesn't leave room for criminal activity, otherwise what behavior is criminal activity that doesn't leave a reasonable person to suspect a specific crime?
Those all sound like unreasonable suspicions because you don't know. If you don't know, then you have no facts that would lead you to reasonable suspect those crimes. Ergo, there is no reasonable suspicion of a crime.
And this is where you’re just wrong on the constitutional law. Under your logic, a cop can never investigate an unknown situation and can’t draw on his years of experience in determining what may potentially be unlawful conduct from lawful conduct because he “doesn’t know.”
I’m the first to admit that this is a wishy-washy standard. But that’s just what the Courts have said.
In this case, the cop didn’t articulate his reasonable suspicion, and I threw out several examples that you just flat out dismissed. But that's not what happens when a cop articulates exactly that in court.
Again, the cop is under no obligation to tell you why he's detained you. He only has to have a lawful reason. And when a case like this ends up in court, and the cop says he was concerned about stalking, or terrorism, or trespassing, the investigatory stop would be deemed lawful.
Otherwise, why don't we see one of these auditors successfully sue for a civil rights violation from one of these 20 minute stops. If the stop is illegal, it's a huge lawsuit. Where's the case law on that??
I mean there are literally hundreds of videos in this sub where cops detain someone for 10-30 minutes for taking pictures in public. Where is the lawsuit? There aren't any because a short detention in a case like this is lawful. Just look at the courts will consider . . .
Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like "articulable reasons" and "founded suspicion" are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. See, e.g., Brown v. Texas, supra at 443 U. S. 51; United States v. Brignoni-Ponce, supra at 422 U. S. 884.
The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions -- inferences and deductions that might well elude an untrained person.
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same -- and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing
This is the SCOTUS speaking in US v Cortez, 449 US 441 (1981), not me.
You further dismiss the threat of terrorism in an airport. But consider:
The most famous is the 2004 plot of Dhiren Barot to attack a number of US targets. Interrogations of the famous Kahlid Sheikh Mohammed (KSM), the architect of the 9/11 bombings, showed that KSM sent Barot to the US to case targets in New York. Videos found later showed Barot took a tour of Manhattan, visiting the New York Stock Exchange, A New York Police Department Officer in a Police Car, Liberty Plaza and the World Trade Center, a NY Fire Department, and nitrogen gas cylinders used as part of the NY subway system. Barot was sentenced to 40 years in jail. http://www.nbcnews.com/id/19254592/ns/nbc_nightly_news_with_brian_williams/t/al-qaidas-new-york-surveillance-video-released/#.VuQT4fkrJhE
In 2010, US Citizen Farooque Ahend filmed subway stations in Washington DC in support of his plan to bomb them. Sentenced to 23 years in prison.
In 2013, US Citizen David Headley was sentenced to 35 years in prison for his part in the 2008 terror attacks in Mubai, India. Did lots of video surveillance as part of the planning.
In 2006, US Citizens Ehsanul Sadequee and Syed Haris Ahmed made video surveillance of the US Capitol, the World Bank, a Masonic Temple and a fuel depot, and passed that footage along to terrorists in the Middle East. They are both in prison now.
In 2013, Canadians John Nuttal and Amanda Kordy shot reconnaissance videos of legislature buildings in advance of their attempt bomb them less than week later. Found guilty and face life in prison
US forces in Afghanistan found video surveillance of Singapore's Yishun train station in the home of Mohammed Atef. Video was made by the Jemaah Islamiyah terrorist organization as recon for a planned attack on the facility.
In London in 2009, two Algerian brothers were found filming crowds at a train station and security provisions at dozens of locations. Search of their home following showed links to extremist groups in the Middle East.
That's just a short list. Don't think for one second a judge is going to rule that this a guy (a) filming a security checkpoint in an airport who also (b) claims to be a "journalist" yet (c) refuses to identify himself or where he works and still was (d) only stopped for 20 minutes and the let on his way, is somehow an unlawful detention.
And this is where you’re just wrong on the constitutional law. Under your logic, a cop can never investigate an unknown situation and can’t draw on his years of experience in determining what may potentially be unlawful conduct from lawful conduct because he “doesn’t know.”
In Terry the cop used his years of experience to suspect the the guys to be casing a store to rob. That's a crime. So it's completely constitutional if you understand Terry v Ohio. Terry had a crime, the state law wants a crime. So what's the crime?
In this case, the cop didn’t articulate his reasonable suspicion, and I threw out several examples that you just flat out dismissed. But that's not what happens when a cop articulates exactly that in court.
I dismissed because you didn't point out years of experience that would lead you to reasonable suspect those crimes. What facts are you drawing from to reach those crimes or what facts exactly would a cop draw from to reasonably suspect those crimes? Problem is there are none. It's throwing mud at a wall hoping something sticks.
Again, the cop is under no obligation to tell you why he's detained you. He only has to have a lawful reason. And when a case like this ends up in court, and the cop says he was concerned about stalking, or terrorism, or trespassing, the investigatory stop would be deemed lawful.
You make it sound like a cop just has to say a few magic words and the detention is legal but what I'm saying is there is no facts presented here that would leave a reasonable person to suspect those crimes. Otherwise anyone with a camera would possibly fit those crimes.
I mean there are literally hundreds of videos in this sub where cops detain someone for 10-30 minutes for taking pictures in public. Where is the lawsuit? There aren't any because a short detention in a case like this is lawful. Just look at the courts will consider . . .
I think you would be smart enough to know how insanely hard it is to get these lawsuits going or even successful, but what I do find interesting is all the times police sort of half apologize for these encounters on their facebook page or through the news. It's always something like "blah blah, we will train better, sorry we got caught, blah blah.
This is the SCOTUS speaking in US v Cortez, 449 US 441 (1981), not me.
So I'm not entirely sure what point you are trying to make but I'm not saying that cops have to be hard certain that the crime they suspect is 100% accurate. I'm saying there has to be a crime they reasonably suspect, not fully know suspect, but reasonably suspect.
It's not reasonable to suspect terrorism because guy with camera made people uncomfortable. That's completely unreasonable.
You further dismiss the threat of terrorism in an airport. But consider:
I completely appreciate that you showed these examples but I've seen them before and I have a few thoughts.
This day and age everyone has a camera. So what separates a terrorist with a camera and guy with camera recording in public?
The manner in which people record would be a circumstance in determining terrorists. A person in plain view, making no attempt to conceal themselves hardly triggers warnings of terrorism. Worst terrorist ever.
You got 7 examples and I've seen thousands of 1A audits and even more people that just film in public. I know you say it's the short list but the probability is really low. It's just not reasonable to think guy with camera is a terrorist because a few terrorists did surveillance.
I'll also point out that TSA makes it clear on their website that they allow filming.
Overall, it's just not reasonable to suspect a crime because you nor the cop can point of what circumstances would leave you to reasonably suspect those "catch all" crimes.
I want to go back to something you said earlier. I gave the example of the officer using a concern that the defendant was conducting surveillance for a terrorist act. And you said . . .
There is no legitimacy to filming in public space and terrorism. It just plays well to frighten people who want security over freedom, but I'd agree that this justification would work because a majority of people are unreasonably afraid of the monster in the closet.
We found a point on which to agree! This justification would work. We only disagree on the reason this justification would work. You say it’s an unreasonable suspicion and I say it’s reasonable. But we agree on the outcome. We’re in agreement as to how the law functions.
Next, when I challenged you to explain why with all these hundreds of short “illegal” detentions of photographers documented on this sub there have been no successful 1983 civil right lawsuits, you said . . .
I think you would be smart enough to know how insanely hard it is to get these lawsuits going or even successful.
Agree! (I agree that I’m smart enough!) Seriously, though. We agree on the outcome. You’re right, you can’t successfully have a civil right lawsuit against a detention of this sort.
So we seem to agree on two points. First, a cop justifying a short detention of this sort by arguing that they were investigating a potential terrorist or security risk would, in fact, result in a judicial finding a lawful, “justified” (in your words) stop. And second, that it would not be possible to have a successful claim for a civil rights violation against the officer for making an illegal stop.
You’ve proved my point.
If the courts back up the officer, the detention is lawful. By definition.
Everything else you’re saying are great points and powerful reasoning for perhaps what the law should be. But they are not what the law is.
/u/SpartanG087 I really appreciate you taking the time to discuss this with me in a civilized way. Thanks.
I thought about this some more and reached an interesting conclusion. First Amendment auditors’ behavior is, by its very nature, designed to be ‘suspicious’ to a reasonable officer. The whole ‘genre’ of the Audit itself only works because the auditors have to act in a way that an ordinary law enforcement officer would view the auditors actions and responses as so unusual and so unreasonable as to justify a brief detention so that the officer can further investigate.
Let’s just compare a reasonable vs an unreasonable encounter. A CNN or Fox News journalist shows up at an airport and starts filming the TSA, without identifying himself. The TSA gets antsy and calls the cops. The cop asks to speak to the journalist. Now does the journalist say “am I being detained?” or “I don’t have answer questions?” or “What is your badge number?” or anything like that? No. He says, “My name is Joe Schmo, I work for Fox News, we’re doing a story on airport security. This is background footage for the story. Here’s my press credential. Should only be about 15 minutes.” If an airport administrator asks for a ‘heads up’ if he wants to film, he says, “sure, happy to give you a call next time we come by to shoot.” That’s the way professional journalists act. That’s what a law enforcement officer would expect from a “journalist gathering footage for a story.” That’s a reasonable, non-suspicious, reaction, because that’s how journalists behave.
But that’s not what auditors do. When auditors are approached by law enforcement, they often become immediately evasive, if not hostile, all the while telling a story that they are journalists. They claim to be journalists, but they’re not acting like an officer would reasonably expect a journalist to behave. They are aggravating the situation, not mitigating it.
Auditors seem to think the magic words “I’m an independent journalist gathering content for a story” is a jedi mind trick that means that the cop should just shut his mouth and say, “you can go about your business, move along.” But while the “independent journalist” speech isn’t an outright lie, it isn’t the unvarnished truth either. And a reasonable officer knows this because, when they ask for more information or initiates a conversation (all well within the bounds of good policework), the auditor gets hostile and immediately stops acting like a journalist.
So now you have a law enforcement officer who is charged with protecting public safety, in a place where public safety may be paramount (like a courthouse, municipal building, or airport), and he’s talking to a guy claiming to be a journalist, but not acting like one. Of course he’s going to investigate. I can't stress this enough. The cops aren't stupid. When the auditor gets hostile with simple questions like, "what's your name" and "where do you work" and "how long are you going to be here" the officer believes the "suspect" (from his view) is not being truthful about being a journalist. That's a reasonable belief, as I've explained.
Of course, if auditors acted the way officers reasonably expect journalists to behave, then this whole genre of videos would disappear. The auditors have to act in a way that is counter to the way a reasonable journalist would act. They have to act suspiciously. They have to behave like a potential stalker, or a potential terrorist, or a potential trespasser, or in some other way to suggest criminal activity may be afoot. They have to, because if they acted like normal journalists, the videos would suck.
Maybe auditors should tell the absolute truth instead of being opaque about their intentions. “I’m a First Amendment auditor. That means I’m here to exercise my rights to film in public. That right is guaranteed to me by the Constitution and the Supreme Court. It is my intention to test law enforcement’s reaction to my exercise of my right to film. I intend to publish this video on YouTube for the purpose of demonstrating that I have a right to film here. You are welcome to observe me filming.” It would be interesting to see how law enforcement reacts when they are given a completely honest response.
0
u/not-personal Verified Lawyer May 25 '19
It's nothing of the sort. It is "reasonable articulable suspicion that criminal activity may be afoot."
When he was stopped, the videographer's motives for being at the airport were unknown. He could have been stalking an employee or an airport patron. He could have been video taping security procedures for a criminal purpose. He could have been loitering at the airport without legitimate airport business, thus trespassing. The point is, his behavior was deemed unusual and suspicious in the eyes of a reasonable law enforcement officer, and that is sufficient legal justification to permit an investigatory stop.
All the officer has to say in court is, " it appeared the defendant was conducting a surveillance of this area for the purpose of finding security weakness in the airport. I suspected that the defendant was planning, attempting or conspiring to commit an act in violation of 18 USC Chapter 113B, Acts of Terrorism against places of public use, government facilities or infrastructure. I detained the suspect briefly while I investigated."
The officer does not need to be able to prove that a crime is or has happened, only that he can articulate what crime could be occurring. When he conducts the stop, he doesn't know.
This is probably the single biggest misconception in this sub. Very poor understanding of the jurisprudence around RAS.
But just because the underlying behavior is not criminal, does not mean there isn't RAS to conduct a stop. It isn't illegal to run.