Kimberly Bracken, a 30-year-old Pittsburgh woman, failed to see a problem with her standing about 50 feet away from cops doing cop stuff.  After all, if one has a right to record police in action, does that not also encompass a right to observe, even if the iPhone isn’t cranking?

Ms. Bracken was cited for stopping to watch the arrest of an armed juvenile who had been chased to a parking lot outside Allegheny General Hospital. Police said in a non-traffic citation that she refused six orders from an officer to leave the area where police were searching for two suspects.

For some reason, the inclusion of “six orders” gives the impression that the police were really, really serious.  If it was only three times, that would be one thing, but six times? They mean business.

She testified Thursday that a number of police were on the scene, and a suspect was already secured on the ground when she rode past on her bicycle. Ms. Bracken said she guessed she was 50 feet away when she stopped to watch. When an officer told her to leave, she did not.

Bracken wanted to know why. She got her answer, and it cost her $300 because it wasn’t the answer she hoped for.

Kimberly Bracken, 30, was fined $300 by Judge Gene Ricciardi during a summary trial. He said Ms. Bracken took up an officer’s energy and time when there was still a second suspect in the area.

Of course, the judge’s rationale could be seen as somewhat backwards.  Did Bracken take up anything, or did the cop make the choice of dedicating his “energy and time” to a woman because he was in the mood to order her to leave and then sufficiently annoyed that she didn’t comply that he chose to direct his attention to her rather than the second suspect.

The watchdog for police misconduct and apologies thought this required further explanation:

Elizabeth Pittinger, executive director of the Citizen Police Review Board, said officers use their discretion to determine what constitutes a safe distance from a crime scene.

In a situation such as Ms. Bracken’s, “You have to put some trust into the police if they are telling you to move along” for safety, and citizens must also use good judgment if they are being told an area is unsafe, Ms. Pittinger said.

Maybe there’s a class at the police academy that teaches cops how to exercise discretion.  If so, it’s likely an elective, and passage isn’t a requisite for graduation.  Using good judgment is hardly the sort of point that one can argue against, since using bad judgment has few advocates. But must we “put some trust into the police”?

Radley Balko offers an inscrutable answer:

Sure, a police officer has some discretion here, but not unlimited discretion. 

So the options offered are no discretion or unlimited discretion. Neither seems to make enough sense to win the day.  It’s not that we don’t trust police, provided we understand that they’re not just pushing people around for the hell of it, or because they just don’t like people watching what they’re doing because they feel unfairly criticized by a public who just doesn’t get it.

But for many, the answer is that we don’t trust police enough to be inherently compliant.  The law, unsurprisingly, defers to police discretion regularly, with numerous crimes being predicated on no more than “lawful orders,” a euphemism for not jumping high enough or quickly enough to please a cop’s whim.

Criminal defense lawyers like “bright line tests,” which means that a court will craft an objectively cognizable line beyond which a wrong has happened. It has two huge virtues: one is that we know when we cross that bright line that we’re asking for trouble. The other is that we know, when we haven’t crossed that bright line, that we are within our rights to tell cops to shove it (even if that won’t prevent the pain from the brutal, if erroneous, beating we’re about to receive).

But bright line tests are hard to come by. Judges know that situations vary, needs vary, safety varies and fixing a line means that it’s going to be in the wrong place some of the time. When it is in the wrong place, someone is going to get hurt, whether cop or non-cop, and the judge doesn’t want to be responsible for a ruling that hurts people.

Which is why Pittinger says we should put some trust in cops.  Only through discretion can a fluid situation be addressed in a way that accommodates the varied and changing factors that affect everyone’s safety.  It makes enormous sense, even while leaving way too much to authority to police to indulge their lesser angels.

But that right doesn’t mean much if the police can decide that the only safe distance is well beyond the reach of a decent video recorder. And 50 feet, if that’s indeed how far she was from the arrest, seems like more than enough space to avoid any physical interference.

Someone’s discretion is ultimately going to prevail, in the absence of a bright line test.  Is it the cop’s?  Bracken’s? Is it Radley’s, mine, yours?  What about the judge’s, as he sits in his big chair in judgment over everyone’s discretion?  It would seem as if it’s the judge’s job, as there really wouldn’t be any good reason to pay him if not to determine whether an offense has occurred.

But if it’s left to the judge, what criteria would he apply to decide whether the officer’s order was sound or an abuse of discretion?  It ultimately comes down to whether the judge will defer to the cop’s discretion as to whether Bracken was too close for comfort, or the cop was just being a dick about it.  Unfortunately, there is no legal maxim in Latin that requires a cop not to be a dick about it, so deference is the only bright line left.