Saturday, September 25, 2010

State Rep. Tom McMillin on the Jury's Verdict

State Rep. Tom McMillin (R-Rochester Hills) had the following statement regarding the verdicts given in the trial of the four Christian missionaries arrested at the Dearborn Arab American Festival:

"Today in Dearborn, the jury got it mostly right in finding Paul, David and Nabeel innocent of disturbing the peace. The city of Dearborn, the Dearborn Police and especially the Dearborn Mayor owe them a huge apology immediately.

However the guilty decision for Negeen Mayel's charge of failure to obey a police officer is extremely disturbing to me. I met with the ACLU here in Michigan recently to make sure we had good laws protecting citizens' right to video police officers and their activity and they said we have the model for other states. But based on today's decision, it seems that police in Michigan can get cameras turned off before doing questionable things (like making an arrest that was just found to be bogus by the jury). And how did the police have the right to tell Negeen Mayel to turn off her video camera and how can he touch her....for what reason? The video she took made it clear the police stepped way out of bounds.

Now - for all this charade, the city of Dearborn needs to be dealt with firmly....unless they plan to try to secede from the union and have their own laws. This is the United States of America and we here in the USA have something called Freedom of Speech. Dearborn - get used to it!"


Lydia McGrew said...

Here's what I believe the ACLU means by talking about Michigan's laws as a model for other states:

As regards recording, some states have what is called a "reasonable expectation of privacy" clause in laws _against_ recording without permission--in other words, wiretapping or secret recording laws. When there is such a clause, it is legal to record someone without first asking his consent if the recording is done on a public street, a place where there is no "reasonable expectation of privacy." Some states don't have that clause, which is obviously a problem.

So what Negeen was doing was not illegal. Well and good, and of course exactly what we would have thought all along.

However, this doesn't really address what I gather/suspect was the claimed rationale for the charge and conviction--namely, a blanket law permitting police to tell you to stop even a _legal_ activity if they feel it is necessary to tell you to stop it for the sake of public order or whatever. Most of these laws that I have seen really do sound like the police can give you any order they want. The interpretation turns on the meaning of "lawful"--does the order have to be "lawful" only in the sense that it is not _against_ some other law for you to obey it (for example, they can't order you to murder somebody), or does it have to be "lawful" in the sense of being backed up by some independent law against that activity or specifically permitting the police to make the order? Prima facie, the laws read like they are meant to be taken in the former sense. So, for example, a policeman can reasonably order someone not to stop and stare while he is making an arrest, he can order people to move on, even though there is nothing _in itself_ illegal about your stopping and standing for a few minutes on that part of the street. The police want the power to do this because it might, for example, be dangerous to have random people standing around during the arrest of a criminal who might do something dangerous, start shooting, etc.

So the mere fact that Michigan's laws protect the _legality_ of videotaping on a public street does not mean in itself that a policeman might not _also_ be granted the authority to tell someone to stop videotaping. That's because these "failure to obey" laws appear on the face of it to give police the power to order people to stop doing _legal_ things when the police deem that necessary for the sake of public order.

It's pretty obvious that there has to be some limit on these "failure to obey" laws, but what that limit is has apparently not been decided and encoded in law. What there probably should be is some qualifier like "reasonable" or "reasonable and necessary" in addition to "lawful"--so that the law would penalize "failure to obey the reasonable and necessary order of a policeman." Or perhaps the law should include a provision expressly allowing for suit on the grounds that an order was unreasonable, arbitrary, frivolous, or harassing, which would restrain police from abusing it.

As things stand, however, it looks like some clarification is needed, and I don't know that case law to date upholds a _right_ to videotape police activities.

Representative Tom McMillin said...

thanks Lydia. late yesterday i emailed my staff to get another meeting with me and ACLU put together. i really don't think i misunderstood them -- and i guess there's nothing to say that the jury/judge got it wrong, which is one reason why the defense will have basis for appeal.
but specifically to police activity and arrests...that's when it seems particularly important to be able to video the police activity...if it weren't for videos, many wrong police activity would go unpunished and they'd have carte blanche - see

Lydia McGrew said...

I totally agree about the importance of videotaping, and I'm not necessarily saying that you misunderstood them. I'm just saying that "good" laws on videotaping might not be good enough--that is, ideally, the law would say that you have a _right_ to videotape or that a policeman can't tell you to stop "just because," not only that it is _legal_ to videotape. I've never heard of an actual law that addresses the issue that is that good.