Brandy Berning spent the night behind bars. And it’s all because she knew her rights, and insisted that they be respected.
Her “crime”? Using a cell phone to film a traffic stop.
According to the Florida Sun-Sentinel, Lieutenant William O’Brien, a deputy with the Broward County Sheriff’s Office, pulled Brandy over after she allegedly drove in the HOV lane at the wrong time. She began filming the traffic stop. Lieutenant O’Brien then told Brandy that she had just committed a felony and demanded that she hand over her phone. She refused, insisting at one point in the recording, “I know my rights.” Brandy claims Lieutenant O’Brien tried to force her from the car, spraining her wrist. He ultimately hauled her into custody and to jail where she spent the night.
Simply put, the Constitution guarantees Brandy the freedom to do precisely what she did. Brandy knew her rights, and they were violated.
The First Amendment protects the right to record and report upon matters of public interest, regardless of whether one is a member of the press. It prevents the government from limiting the stock of information available to the public, as well as covering up overly aggressive police tactics. As the U.S. Supreme Court stated in Near v. Minnesota, “In determining the extent of the constitutional protection [of the press], it has generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints.” Thus, federal courts that have considered the issue have held that citizens have a constitutional right to film officers who are performing their duties in public places, subject to reasonable time, place, and manner restrictions.
Troublingly, Brandy’s treatment cannot be dismissed as an isolated incident. We wrote about Heather Thomas, who used a cell phone to videotape the arrest of her husband Thomas on her own property. Although she did not interfere with police in any way, an officer took the cell phone from her and later commanded her to delete the footage.
As in Heather’s case, there is no claim that Brandy interfered with the officer. While officers can take reasonable measures to protect themselves, Brandy’s actions posed no threat.
The police did not charge Brandy, and released her the following day. But she never should have endured this ordeal in the first place. Cell phones are becoming an increasingly important means of documenting information and allowing police to arbitrarily cut off our ability to film their activities would deprive us of an extremely valuable means of protecting our civil liberties. We must, therefore, insist that the police cannot treat citizens this way, and hold accountable those who do.
Brandy is now suing the Broward County Sheriff’s Office in connection with the arrest. We look forward to seeing her rights vindicated.
The Heritage Foundation’s project USA vs. YOU spotlights the flood of criminal laws threatening our liberties. Explore more stories of overcriminalization and find out what you can do to reverse this trend.
