The Rhetoric of Rights

Radley Balko interviewed Joseph Cassilly, Harford County, Maryland state’s attorney, for his article at Reason about the handful of states that contend that it’s a crime to record police in the performance of their duty.  Cassilly, notorious for his felony prosecution of Anthony Graber who recorded the plain-clothes, gun-wielding officer who took him down on a Maryland highway, explained his seemingly irresponsible position.

“The officer having his gun drawn or being on a public roadway has nothing to do with it,” Cassilly says. “Neither does the fact that what Mr. Graber said during the stop could be used in court. That’s not the test. The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear.”

Cassily further explained:

“I don’t have any hard and fast rule I can give you,” Cassilly says. “It depends on the circumstances, and if the officer in those circumstances had good reason to think he wouldn’t be recorded. Should a domestic violence victim have a camera shoved in her face and have her privacy violated because someone is following a police officer around with a camera? What if he’s collecting information from witnesses at a crime scene? I’m saying that not everything a police officer does on the job should be for public consumption.”

That Cassilly makes no sense comes as no surprise; He’s in an untenable position and is just trying his hardest to make sure the words flowing from his mouth don’t concede as much.  Making no sense is one of the best ways to accomplish that.  But what’s most interesting about the explanation is that Cassilly speaks of the police officers’ “rights”. 

Indeed, the title of Radley’s article, “Police Officers Don’t Check Their Civil Rights at the Station House Door,” a quote from Jim Pasco, Executive Director of the Fraternal Order of Police, is a riff off of the Supreme Court’s opinion in Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969), a decision about the rights of students.  It sounded great in Tinker, not to mention its progeny that recite it while explaining why students really have no rights, so why not cops?

Cops are people, right?  I see you shaking your head.  Yes, they are people.  People have rights.  But when they strap on their weapon and wear a shield, they don’t do so as citizens or human beings, fathers or mothers.  They do so as officials of a governmental entity, duly authorized by that government to perform a function.  That’s why the rest of us aren’t issued badges and taught how to taser people who annoy us.  We’re people.  We’re not cops. 

It’s not difficult to distinguish between the rights we possess as human beings and the authority possessed by those who serve as functionaries of the government.  They don’t lose their personal rights, but they don’t get to enjoy them contemporaneously with the performance of their duty. 

What is difficult, however, is to distinguish our love of rights and freedoms when they are well-grounded from when they are based only the rhetoric of rights.  Cassilly’s “argument” exploits the rhetoric of rights when human beings clothe themselves in governmental authority.  In essence, they do indeed leave their rights at the station house door.  When the go out into the world as police officers, they are not “people” but cops.  Just as they enjoy the authority of the government, they are constrained to forego the rights they would otherwise enjoy as people.

The same rhetoric of right, however, cuts against the grain in other ways as well.  I’ve often argued against the popular “victim’s rights” legislation and agenda, which seeks to make crime victims a third player in the criminal justice system.  Its advocates, such as Paul Cassell of Volokh Conspiracy, argue that they are entitled to a vote, particularly about disposition, sentencing and restitution, that trumps the prosecution.  This flies in the face of the concept of criminal law, which seeks to vindicate societal rather than personal interests, but that doesn’t prevent the assertion of the victims’ “right” to be a participant.

From whence does this “right” derive?  It can’t be found in the Constitution or the common law.  Rather, it’s statutory, meaning that legislation manufactured the right of victim to have a say out of thin air.  It’s a popular notion, despite the problems it creates in the scheme of criminal law because we all feel badly for victims of crime and nobody wants to say that they deserve no rights.  That sounds awful.  It feels as if victims should be able to get their pound of flesh out of a defendant because it’s so difficult and complicated to fight the rhetoric of rights. 

Ironically, the rhetoric of rights for victims is a one way street.  At Norm Pattis posted, when representing a victim who doesn’t want a prosecution to proceed, and doesn’t want to be party to it, the rhetoric of rights shifts against the victim.  He argued:

Among other things, we argued that the right to be treated with decency and respect was a constitutional right much like the federal right to due process: it needed to be given flesh and blood in the hurly burly of actual litigation. How is this young woman treated with respect and dignity when she has no say in whether this prosecution goes forward?

Of course, there is no right to decency and respect, as such.  Heck, there isn’t even a viable definition, no less way to determine whether decency and respect are violated.  But it’s a good argument, inasmuch as nobody wants to be on the side of arguing that people do not have a right to decency and respect.  The ultimate point, that the victim’s desire to have the prosecution cease is ignored.  So victims have a right to demand that prosecutions proceed. Victims do not have a right to demand that prosecutions cease.  There appears to be a gap in the logic here, no?

The problem stems from a basic inequity in the rhetoric of rights, the manufacture of non-existent rights is only viable when its consistent with popular notions.  We like law and order, so cops have rights.  We like victims, so victims have rights.  When victims want to exercise those rights to cease being victims, we no longer like them to so they have no rights. 

Rights aren’t a product of rhetoric, but a product of the Constitution.  Victims have no rights, but for the legislators’ creation to appease popular views.  That’s why they only flow one way.  Cops, as government functionaries, have no rights as such, but plenty of authority.  Beware the rhetoric of rights that creates the appearance of rights where none exists. 

There are plenty of rights involved in the recording of police officers in the performance of their duties, but they all belong to the people doing the recording, not the cops.  There are plenty of rights in the courtroom, but they all belong to the defendant, not the victim.  No amount of rhetoric changes those rights or who possesses them, although the use of the rhetoric of rights serves to significantly muddle our understanding of rights and, by giving rights where none exists, diminishes the rights of the rest of us.

For every “right” claimed that doesn’t exist, the rights of someone else will be proportionately diminished.  Don’t let that happen, no matter how appealing you find the rhetoric.

15 thoughts on “The Rhetoric of Rights

  1. Windypundit

    It doesn’t help the police cause that they and their supporters are claiming a right that doesn’t really exist for anyone else. News programs send out thousands of videographers every day to cover stories, and they don’t need permission to roll tape in a public setting. This is now we get video of misbehaving movie stars, and this is how investigative journalists do ambush interviews. States like Illinois and Maryland may have a statutory requirement for approval of all parties, but I’ll bet it’s never been used to arrest someone for making a video in a public place except when police and other government functionaries are the subject.

  2. SHG

    Ironically, it does exist for the media.  It’s that freedom of the press thingy in the first amendment.

  3. Peter Ramins

    Let’s just all keep in mind that we live in a country that includes many areas where a citizen can be arrested, given a fair trial, and then jailed, all because they documented the public activities of a government official about his or her official duties.

    We live in that country.

    I want to end the reply there for impact, but let’s also consider that most of those governent representatives (we’re talking about LEOs here) have video recording equipment on their vehicles, which records audio.

    If a citizen tried to make a complaint that his interaction with a law enforcement official was somehow ‘private’ and beyond the public scope, it would be viewed as ludicrous and outlandish.

  4. Lorraine Fay

    When Cassily says “I don’t have any hard and fast rule I can give you” he means “there is no law that I can recite that gives me the protection I want to claim”, and when Cassily says “it depends on the circumstances” he is saying “I am the law, and I make the decision according to my whim”. This makes me sick.

  5. Ron Coleman

    On the whole, I agree with you, Scott. But let me play Devil’s Advocate. I think you’ve made a bit of a straw-man about whether or not there is really a “right” to, of all things, “privacy” for cops on the job. That’s just too easy of a target, though. Moving way from the dumb title of his article, let’s shift to where these decisions really are made: In the shifting, murky territory of the administration of justice, a subset of the administration of everything else government does.

    You can’t seriously suggest that every action by every person employed by government should be amenable to plenary review via YouTube. Perhaps you believe that, well, maybe not the nice people at the DMV, but cops, sure — look at all the power they wield, and, as you say, look at how this plays very much the other way as a defendant is nastily dragged through the criminal justice system.

    But you know that even under the best of circumstances being a cop — being a good cop, doing it the way you and all the other criminal lawyers would want a cop to do his job — is not an easy job. For example, lots of people are observed by police while engaged in violations, misdemeanors and perhaps even more serious stuff than that. Some serious percentage of them is nonetheless not “brought in,” because a cop exercised what you would probably applaud as appropriate discretion in the situation. Now imagine the boys from Adam 12 being tailed by iPhones and the like all the shift long. Would the effect on video and audio monitoring of their every move be good for anyone other than business for the criminal defense bar?

    How about the entire sequence of from the time of police arrival on the scene of an incident, through negotiation — in whatever form — and, as the case may be, informal resolution or arrest. Consider the infinite range of how such moments play out in each police call, every day. Can we really say that the fact that such interactions will be recorded will not affect that process, and likely distort it, in ways that may very well not promote justice and safety?

    Think of how a supposedly well regarded judge, Lance Ito, cracked up once he started posturing for the cameras. Now apply that to one or two cops per call — or maybe five or six? — and any number of citizens, witnesses, miscreants and interlopers.

    It’s not so obvious that the recording of police work is, as a rule, a good thing, either for them or the communities they serve. Now that’s a long way from saying cops should be allowed to censor, much less harass, photographers. But when Cassy says, “I don’t have any hard and fast rule I can give you. It depends on the circumstances” — stop there — and finish the sentence to read, “It depends on the circumstances whether or not it’s such a bright idea to insert multimedia into a police call”: Is that really so asinine, Scott?

  6. Stephen

    Even beyond the whole do you have a right to not be recorded in public thing I’ve never actually heard of a police officer who wasn’t doing something wrong complaining about being recorded. In this case it’s a non-uniformed officer waving a gun about on a highway, in other cases it’s a group of riot police beating a student. It’s starting to be a red flag for me – if a police officer is taking time out of their shift to delete a recording of themselves it seems to be worth asking what the recording contained.

    I think the problem is not that someone is going to follow police officers around for a whole shift with their iphone (whuh? Anyway even if that was what someone was doing would that really change anything? That’s like the kid on work experience following you around, no sane persons beats up perps because of the iphone effect) but it does seem to me that the ability to film a police officer shunt a cyclist off a bike is simply collecting evidence for future litigation.

    Also, if it’s so bad to record police at work why does Cops get to do it?

  7. Lee

    This really is a great post, Scott. I’m going to share it.

    And this is classic: “Cops are people, right? I see you shaking your head. Yes, they are people.”

    I was kinda shaking my head.

  8. Lee

    To be noted: most federal judges who impose consent decrees on out of control departments view the recording of interaction with the citizenry as a good prophylactic.

  9. Shawn McManus

    Proverbial nail on the head here…

    Governments – and by extension those enforcing their laws – have sovereignty, authority, and power.

    People have rights.

    Rock on, Scott!

  10. SHG

    Yes, it really is that asinine, Ron.  You’ve superimposed a bunch of nonsensical ideas on a basic idea.  Why not record all public employees in the performance of their duty, with exceptions for personal moment (i.e., using the bathroom and lunch) during the day or things that, for other reasons must be confidential (i.e., judges in camera). 

    Lance Ito was entertainment, but the video of the DMV clerk isn’t going on the television, and if it did, no one would watch anyway.  But why not?  This isn’t their personal time, but time bought and paid for by the public.  It’s the public’s “time” to watch.  If they’re working hard, people should know.  If they’re hardly working, the people should know that too.  Why not?

    Turning to a special subset of public employees, the ones with guns, they do good and bad, often the same cop on the same day.  That’s how it worked.  But they are expected to do good, so the fact that they exercise discretion doesn’t make them wonderful except to someone with the expectation that we pay people and if we’re really, really lucky, they will occasionally do what we pay them to do.  I expect more,  You should too.

    Again, your view of recording cops is that it’s all going on television for public entertainment.  Aside from the absurdity of thinking that anybody would watch, the logistics don’t work.  They will continue to do their job, and the recording will only matter to anyone in rare instances.  Otherwise, it’s like background noise, there but irrelevant.

    So why can’t we just leave it to the cops to decide when they feel like being recorded?  A very naive question, Ron.  Does anybody want to be recorded doing wrong if the choice is up to them?  I believe this is the old fox guarding the hen house scenario, and you can likely figure out why that’s not a great idea.  Sorry you thought the title of my post was dumb, by the way.  I like it a lot.

  11. Ron Coleman

    I posited a far out position for the sake of argument, Scott. It may well be asinine, but I think if you weren’t so prickly you’d acknowledge that while I may be guilty of an argument reductio ad absurdum, you haven’t really addressed the question I raised — can it really be impossible to posit some limitation on the absolute right to record police doing their job?

    Your predisposition to just snap back rather than consider the argument is indicated by the fact that where I said “the dumb title of HIS article,” you read “the dumb title of THIS article.”

  12. SHG

    Nah, it was more a matter of your comment being really long. disjointed and kinda silly, and I got bored reading it but didn’t want to be rude and not respond. And for that I get called prickly, which reminds me that no good deed goes unpunished.

  13. Ernie Menard

    “It’s not so obvious that the recording of police work is, as a rule, a good thing, either for them or the communities they serve.” Well, this rule seems to be obvious in those communities that have equipped the LEO’s with recording equipment in their vehicles and on their Tasers.


    I reject the notion that a public employee is, by virtue of being paid out of taxes, obliged to submit him/her-self to constant video surveillance, whether or not the video is made available on YouTube or similar.

    Ron Coleman therefore has a point. Like him, I do not think that to say so vindicates Cassilly’s ludicrous position

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