With the explosion of video recording devices in cell phones and other handheld electronics and the ability of social media to virally spread videos across the globe, legal questions have arisen as to their lawful use.  A video recording can help capture events of public interest and can result in legal ramifications for those involved.  Perhaps no more contentious a use is the video recording of police interacting with the general public.  Both sides of the issue can see benefits, as well as concerns.

The recent Toronto Star article by Wendy Gillis examines this very issue when a bystander video recorded the Toronto Police tasering a man who was already pinned to the ground by multiple police officers.  A police officer then threatened the individual who was video recording the event without compromising the activities of the police.   Who was right?  Who was wrong?  It is an article well worth reading…

Toronto police threaten to seize phone of man lawfully filming arrest

By:  Wendy Gillis
January 24, 2017

A Toronto man who lawfully recorded police arresting and Tasering a man near Ryerson University on Tuesday was repeatedly told by officers to stop filming the interaction, then threatened by two cops who claimed they would seize the phone he was using to record it.

The interaction, captured by Waseem Khan, depicts officers repeatedly telling Khan he could not record police — despite the fact that citizens have the right to film police performing their duties if they are not obstructing the officers.

“Get that guy out of my face, please,” says one Toronto police officer after deploying his Taser on the man, pointing to Khan.

“I’m not obstructing your arrest. I’m not involved in the investigation,” Khan says, as he continues to record the interaction from approximately 20 feet away. “I’m not getting involved.”

The video then shows two officers approaching Khan, one of them urging him to let police “do what they need to.”

When Khan refuses — insisting he isn’t stopping police from doing their jobs — two officers tell him that if he doesn’t stop recording they are going to seize his phone as evidence, something they did not have the authority to do.

One of the officers warns Khan the man police are arresting is “going to spit in your face, you’re going to get AIDS.”

The video comes less than two weeks after a police misconduct case was settled through mediation in another incident where Toronto police wrongly attempted to block a member of the public from videotaping an arrest.

Toronto police spokesperson Mark Pugash called the video a “teaching moment.” Based on what he can see in the video, Khan was not obstructing or interfering with the arrest, Pugash said.

“Let me be clear: we have told our officers if somebody is videoing them and they are not obstructing and interfering, they have every right to film,” Pugash said Tuesday.

While he said the vast majority of officers understand citizens have the right to record police — “this is life in 2017” — the video shows not everyone has got the message.

“Clearly there is more work that we have to do. This is very much a teaching moment,” Pugash said.

In reference to officers claiming they would seize his phone, Pugash said: “They have no authority … That approach is the wrong approach.”

Pugash said Toronto police’s professional standards division would be examining the incident to determine if the officers should be disciplined or charged with professional misconduct. He added the officers would be spoken to by their unit commander.

The incident began when Toronto police got a call Tuesday morning indicating a man at Seaton House, a downtown homeless shelter, had spat on a staff member. Officers located the man near Dundas St. E. and Dalhousie St.

According to police, a female officer approached and the man spat at her and punched her, prompting construction workers nearby to step in; one of the workers was then bitten by the man.

After the man was placed in the back of a police car, he kicked out the back window, police said. “They tried to Taser him but the Taser didn’t work because he was wearing heavy clothing,” said Pugash.

Khan, a 32-year-old letter carrier, was in the area with his wife, taking his child to daycare, when he saw Toronto police reaching into the back of a police car, then bringing a man out onto the ground.

He began recording, and the video starts when the man is on the ground surrounded by officers. Khan can be heard saying he is recording because he “saw a cop kick this guy in the head.”

The sound of a Taser being deployed can then be heard, and Khan says: “He’s down and they (Taser) him? This guy’s restrained and they (Taser) him.”

One officer can also be seen repeatedly applying pressure on the man — who appears to be unmoving — with one foot, and yelling: “Stop resisting.”

According to Pugash, the man being arrested was biting one of the officers at the time, prompting them to deploy a Taser.

In an interview with the Star, Khan expressed disbelief that the man was biting police. He appeared to be completely unconscious, Khan said.

“This guy was out. He didn’t move one muscle in his body, not making one sound,” Khan said. “I’m telling you, this guy was not biting anyone.”

Khan said he felt intimidated recording police, though he knew he had the right to do so. As officers approached him, he felt he was being forced away and he no longer had a clear view of the arrest. He left soon after.

“I felt that I had to back up. I did not want to lose the video,” Khan said. “I knew they couldn’t take my phone, but I knew that they would.”

Khan said among the most troubling aspects of the incident was the comment about the man being arrested giving him AIDS.

“This is obviously how they feel towards him. This is the attitude towards people in the street,” Khan said.

HIV, the virus that causes AIDS, is not spread through saliva.

Pugash said he wanted to remind Khan he can complain about the police conduct he witnessed, including the language used by the officer.

Earlier this month, professional misconduct charges against two Toronto officers who intimidated and blocked a citizen from recording the arrest of two black minors were stayed, following mediation.

Mike Miller, the man who was filming, said he was satisfied with the outcome, saying the officers provided a sincere apology. “I believe now that if citizens are going to do this, they are not going to be intimidated,” he said.”

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