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After Freddie Gray death, cop-watchers film police to prevent misconduct

Post Freddie Gray, cop-watchers film police to protect against misconduct.

On a sultry West Baltimore night, six police officers walked down a concrete courtyard of Gilmor Homes — while self-styled "cop-watcher" David Whitt held up his camera and pushed the record button.

One officer confronted him, asking, "Do you have I.D.?"

"Am I being detained?" Whitt shot back.

As the heated confrontation continued, the officer took out a cellphone camera, held it up to Whitt and repeated, "Do you have I.D.? Do you live here? Because if not, you're trespassing."

After Whitt responded, saying he had a right to film police, the officer walked away, telling him, "Thank you for putting my safety at risk. I appreciate it. You're also putting your safety at risk by following me."

The scene illustrates the tension-filled encounters playing out in Baltimore and across the nation, as camera-toting residents seek to document examples of police brutality or other misconduct. Activists like Whitt, who is from Ferguson, Mo., the scene of unrest last year, are linking with residents in Baltimore, Charleston, S.C., and other cities to create a network that can expose problems with lightning speed through social media.

Among those who have signed on is Kevin Moore, who gained nationwide attention in April for capturing the arrest of Freddie Gray on a cellphone video. In the aftermath of Gray's death, Moore created WeCopwatch Baltimore and has accumulated dozens of hours of police footage and begun "Know your Rights" discussions with fellow residents of West Baltimore.

Similar groups around the nation go by various names, including Cop Block, Peaceful Streets Project and Communities United Against Police Brutality. But they have a common weapon: candid video that can capture police violating regulations.

The power of such video clips is clear, even when they do not originate from cop-watching groups. In North Charleston, S.C., an officer was charged with murder after he was filmed shooting a fleeing suspect in the back. In McKinney, Texas, an officer resigned after he was filmed slamming a bikini-wearing teenager to the ground. In Baltimore, at least two officers have been suspended in the past year after surveillance video raised questions about brutality.

Rachel Lederman, a California lawyer who has worked with cop-watchers through the National Lawyers Guild, said, "Filming the police is one of the most crucial ways to stem racist police and misconduct."

But policing experts say such cop-watchers sometimes go too far. "I think law enforcement by and large understands and respects the bounds of the First Amendment," said Ron Hosko, a former assistant FBI director and president of the Law Enforcement Legal Defense Fund. "The friction develops when those folks step beyond simply being passive observers to encouraging action criticizing police. To me, that is where the line is between observing and interference."

The movement, which dates as far back as the 1991 police beating of Rodney King in Los Angeles, has accelerated in recent years thanks to social media tools such as Facebook and cheap, unobtrusive video recording devices. Even Anonymous, an informal association of activists and hackers, has posted an "Operation Copwatch" video on YouTube that asks its more than 4.5 million online followers to record police interactions.

And now groups such as the American Civil Liberties Union are promoting technologies that will allow video to be posted online instantly — innovations that could further intensify the tug of war between police and residents, and the legal battles that follow.

Baltimore Police Commissioner Anthony Batts has criticized local cop-watchers for mobbing officers and sticking cameras "inches" from their faces. "When you have 50-60 people, it makes it difficult to get eyewitnesses, it makes it difficult to get information," he told a group of reporters last month.

Police departments around the nation have acknowledged the right of residents to film police in public areas, and many are beginning to equip officers with body cameras. Baltimore's body camera program, which will start later this year by testing cameras on 155 officers, will take four years to fully implement.

Meanwhile, Moore keeps filming. He and other activists want to expose incidents of misconduct and stop police from disproportionately arresting African-Americans for petty offenses. He said of the problems that lead him and others to point cameras at police, "It's deep. It's much bigger than Freddie Gray."

'I instantly started recording'

On April 12, Moore was sleeping in his apartment in the red-brick Gilmor Homes complex when his uncle yelled up the stairwell, "They're tasing Freddie." Moore grabbed his cellphone, threw on a black hoodie and jeans, and rushed outside.

Officers had dragged his friend Gray from a courtyard to a spot on a sidewalk a few yards away.

"Once I got around to see where Freddie was, I instantly started recording," Moore said. "I just noticed the way they had him folded up. They had him folded like a crab or a piece of origami."

The video — later broadcast by CNN and other networks — shows officers restraining Gray on the ground with his feet and arms folded back. Gray screams as he is dragged to a police van, and Moore shouts, "Don't worry, Shorty, we recording this."

An officer tells Moore and others to get off the street. "I sure will," Moore responds, "but that ain't gonna stop me from using this phone."

Within an hour, Gray sustained a severe spinal injury in the van; he died a week later. Six officers involved in his arrest and transport have been charged with offenses ranging from misconduct to second-degree murder.

Even after Moore's video went viral, he was able to maintain a measure of privacy. Days after Gray's death, Moore was back at the K&H corner market where he works. As he served coffee, locals came by asking for "Kev" and he responded with one-word nicknames like "Dreds" or "Uncle." They talked about what happened to Gray — and said it was far from unusual. Few knew Moore was among those who shot video of Gray.

This is the community he prefers, a place where neighbors play pinochle on card tables in the courtyard, and the sounds of a passing ice cream truck mix with the clomps of a horse-drawn arabber's cart. Here, he can watch his young daughter scurrying off across the concrete courtyard to meet a crowd of friends. Here, he can maintain a level of protective anonymity, remaining close to neighbors but unknown to outsiders — even as overhead security cameras record residents' every move.

But that anonymity vanished when he decided to speak out about Gray's arrest. Soon, police used Twitter to broadcast a photo of Moore captured by a city surveillance camera the morning of the arrest. It showed him filming police, and the tweet said police wanted to interview him. Moore, who said he had already spoken at length to investigators and given them his video, called the police move an "intimidation tactic." Police didn't respond to The Baltimore Sun's questions about the posting.

As protests over Gray's death spread across Baltimore — and turned into rioting — Moore linked up with cop-watchers from Ferguson and became part of a broader movement.

Chad Jackson and Whitt had driven to Baltimore in the wake of Gray's death to help Moore set up his own group. The two men had worked in Ferguson amid the furor over the police shooting of an unarmed teen, recording police and handing out cameras. They were among the cop-watchers and other protesters who traveled to Baltimore; some donned the white, full-face masks that were a symbol of the group Anonymous.

They were frequently on West Baltimore's streets — and their sometimes antagonistic attitude toward police brought trouble.

On April 30, members of the National Guard and police lined the streets while helicopters hovered above. The area was still seething, three days after riots tore up pharmacies and other businesses, and officials had declared a state of emergency.

Moore, Jackson and another activist were drinking beer and yelling to a crowd of protesters, "[Expletive] the police, we are going to kill the police!" according to the court documents. Protesters cheered and the men drove off, at which point "marked and unmarked vehicles turned on their sirens and pursued the group."

Moore acknowledges shouting expletives about police, but says he never said "kill the police." To Moore, the allegation simply provided a reason for stopping an out-of-state car whose passengers were wearing white masks.

Moore said they drove several blocks after the police began pursuit. "We weren't going to stop there in the dark. I wanted to go where there were cameras, street lights and my people."

At 8:30 p.m., Moore and the two cop-watchers from Missouri stood handcuffed on the side of Presbury Street, about 15 yards from the spot where Gray was arrested.

Moore was released after two hours. Jackson and the other activist were arrested and taken to jail. The two men face riot-related charges that carry a maximum penalty of life in prison, and are out on bail while awaiting a July court date.

Changing the dynamic

The stop on April 30 wasn't Moore's first run-in with police. He has a "failure to obey" charge on his record from 2013 that was never pursued by prosecutors and says he had other legal troubles when he was "young and dumb." "Me personally, I've been thrown down a flight of steps by a police officer," he said. "They put my face to the ground. Busted my lip. ... I've been everything but tased and it's because of my dreds and my skin color and baggy cloths and now Copwatch."

Whitt and Jackson also have previous arrests and say their experiences drove them to pick up a camera and film.

Jacob Crawford, organizer of WeCopwatch in Oakland, Calif., said one interaction with police led him to pick up the camera. "If I'm having these experiences, I thought people with not half of the white privileges I have were getting it worse."

Police brutality has been a problem in Baltimore. An investigation by The Baltimore Sun last year revealed that the city paid nearly $6 million in court judgments and settlements in more than 100 lawsuits alleging brutality and other misconduct since 2011. The U.S. Department of Justice is investigating the city police to see if there is a "pattern or practice" of misconduct, including the violation of constitutional rights.

Moore and the cop-watchers from Missouri say they also are rebelling against a broader problem: policing strategies that have saddled residents in many black neighborhoods with arrests for petty crimes such as loitering.

In Ferguson, a Justice Department investigation highlighted that issue. For example, African-Americans made up 67 percent of the town's population but the vast majority of minor arrests — "manner of walking," 95 percent; and "failure to comply," 94 percent. Ferguson police have said they're responding with reforms in the department.

In Baltimore, some have criticized the aggressive policing in Martin O'Malley's mayoral term. The rates of violent and property crimes dropped significantly, but critics say the frequent arrests for minor offenses deepened mistrust between police and residents, especially in African-American neighborhoods. In 2005, for example, police made more than 100,000 arrests in a city of 636,000.

The NAACP and ACLU sued the city on behalf of 14 people, alleging that their arrests indicated a broad pattern of abuse in which thousands were routinely arrested without probable cause. The city settled the lawsuit in 2010 for $870,000, agreed to retrain officers and publicly rejected zero-tolerance policing.

More recent data show that African-Americans still experience a disproportionate share of petty crime arrests. Although they make up 64 percent of Baltimore's population, they accounted for 95 percent of arrests for loitering, 92 percent for resisting arrest, according to data from 2013 to 2015.

In Baltimore, charges such as "failure to comply" are known by defense attorneys as "trip tickets," a method for police to get someone to the station for questioning.

"If a cop asks me if the sky is blue, I'm going to ask him, "Am I being detained?' They don't do this in white neighborhoods," Whitt said.

He and other cop-watchers want to change that dynamic. "We want discretion and warnings from police," Whitt said. "Not so many arrests."

To that end, Whitt, Crawford and other activists handed out more than 200 cameras in Ferguson last fall, and have an overall goal to distribute 1,000. They've raised $8,565 through gofundme.com and received an individual donation of $10,000.

So far, they've shot 100 days worth of footage of police in Ferguson alone, and have given several "Know Your Rights" orientation sessions to residents so they know what they should and should not do while filming and interacting with police.

Whitt has also helped to recruit members for his group, WeCopwatch, which has chapters in Oakland, Calif., Ferguson, Detroit and most recently, North Charleston, S.C.

The activists say the act of filming could be as important as the footage itself.

Referring to one troubling police shooting that was captured on a cellphone, Whitt said, "If that [videographer] in North Charleston had made himself known, Walter Scott may not have been shot."

Right to record

Battles over the right to record police — and the boundaries of that right — have taken place on the streets and in the courts for years. Gradually, police agencies have developed policies designed to allow such recordings, which judges have said are protected by the First Amendment to the U.S. Constitution.

Attorney Mickey H. Osterreicher, general counsel for the National Press Photographers Association, trains the media and police on the legal rights of citizens to record in public places. He is a member of the International Association of Chiefs of Police advisory committee on public recording of police.

He said police and the public still do not fully understand the issue. "There are a lot of citizens who still believe that if an officer orders you to stop recording that that's a lawful order. But it isn't."

Still, making that argument to an officer in the heat of the moment is not easy.

"They have the badge and the gun, and if you don't comply you're probably going to get arrested for disorderly conduct or other minor offenses," he said. "I call them the catch and release charges. They're not interested in the charges sticking. They just want to stop you from doing what you're doing."

Conservative and liberal legal advocates — from the Heritage Foundation to the ACLU — agree in their reading of federal court cases that the First Amendment protects the right to record police officers in public.

A Heritage Foundation legal analysis of the subject said, "There is a strong public interest in making police officers' public conduct transparent. Filming the police can yield evidence of government misconduct — among the core concerns of the First Amendment."

The report, written by Evan Bernick and Paul J. Larkin Jr. and published last year, cited research showing that "police are less likely to engage in misconduct when they know they are being recorded." It also states that officers have no privacy interests that are greater than "the strong public interest in transparency."

The right to record police actions, however, comes with "reasonable time, place and manner restrictions," the report noted — meaning that citizens cannot be a threat to the safety of police officers or to the public while recording.

In Maryland, an important test of the right to record police actions originated at the 2010 Preakness.

A Howard County man, Christopher Sharp, said city police deleted video from his cellphone that he claimed would show officers roughing up a friend at the racetrack. The ACLU of Maryland sued the Baltimore Police Department, and as the case progressed, the Justice Department intervened for the first time in such a case to express its opinion that people have a constitutional right to film police. It followed up with guidance on how Baltimore police should develop their policy.

The letter instructed: "Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices. ... Policies should prohibit officers from destroying recording devices or cameras and deleting recordings or photographs under any circumstances."

The next month, the Police Department issued a directive prohibiting officers from preventing people from taking photos or video of crime scenes and other law enforcement activities in public view. The ACLU praises Baltimore's policy as a national model.

Last year, the city settled Sharp's case for $250,000; neither the city nor the officers acknowledged wrongdoing.

Deborah Jeon, legal director for the ACLU of Maryland, believes state residents are aware of their right to film police so long as they do not interfere with the activities of officers. Nearly all of the state's police departments have adopted policies informing officers about the rights of residents to film their public actions, she added.

"I feel like the tide has turned and that it is becoming an established part of how the public holds the police accountable," Jeon said. "It's some of the most effective proof you can provide in a case where you're alleging misconduct."

This summer, the ACLU of Maryland is pushing to extend the impact of that right by launching a Mobile Justice app for cellphones. The technology, being used at several other branches across the nation, will allow users to upload video to the organization as they are recording it — preserving the video before a police officer has a chance to seize the phone and delete it. There are similar apps, including Cop Watch Video Recorder for iPhones and Hands Up for Android devices.

"Police can't stand the fact that people are watching what they're doing," said attorney Barry Glazer. He represented a Baltimore woman who claimed her constitutional rights were violated when she was arrested while recording a 2009 encounter with police in Towson; the case was settled. "Boy, do they hate that. Even when they're not doing anything they have to worry about."

While allegations of police deleting videos or photos have decreased in Maryland, they continue to pop up here and around the nation, Jeon said.

Just last year, for example, a Baltimore County auxiliary police sergeant confronted a bystander filming an arrest in Towson and told the videographer that he had "lost" his constitutional rights. Police Chief Jim Johnson later said that the officer's order to stop filming was "incorrect, inappropriate and unnecessary."

Spreading a message

In recent weeks, as prosecutors and defense lawyers sparred over charges brought against the six officers involved in Gray's arrest, Kevin Moore has juggled work at the corner store with cop-watch duties. In addition to his nearly 40 hours at the store, Moore was putting in at least 30 hours a week on WeCopwatch, including filming police and messaging on social media.

WeCopwatch raised $365 in a gofundme.com Kevin Moore campaign, and is seeking $6,000 to cover additional cameras for local residents.

"I just want to get the knowledge out there that you can get your own camera or phone," he said on a recent day at the store. "Photography is not illegal."

Wayne Day, a customer buying coffee from Moore, unzipped his jacket to reveal two dog tags that carried a picture of his friend Gray.

"We right here in the trenches," said Day, who said he also films police. "Right now. Right here. Across the street from where my man got killed."

"How do you give [police] military training and use that on your people on the street?" asked Moore. "How do we defend against that?"

Allusions to war — phrases such as "in the trenches" — permeate the conversations of cop-watchers. They have seen police reform efforts fail in state legislatures in Missouri and Maryland, and say cameras are the only "arms" they have to protect themselves.

Recently, Moore was filming a June 17 meeting of police officials held outside the Western District station.

After the six officers were charged, arrests plummeted while shootings and homicides skyrocketed. Sheree Briscoe, the new commander of the Police Department's Western District, said her officers were not stopping residents indiscriminately; they were focused on making targeted arrests that will make the community safer.

As Moore recorded the meeting on his Sony Handycam camera, about two dozen residents lingered on the basketball courts nearby, listening to the crime statistics.

"What do we do differently here?" Batts asked the officials. "What can we do that's deep-rooted? … How do we bring hope to a community and bring people to services?"

Moore, who was wearing a black "WeCopwatch" hoodie, said later that he received some flak from neighbors for filming the meeting. They said the focus should be on street violence. He asked them why homicides had spiked recently — and what would happen if police simply responded to 911 calls.

Moore told them, "If you want to help that, then pick up your camera and film."

Baltimore Sun reporter Justin George contributed to this article.

crentz@baltsun.com

ddonovan@baltsun.com

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