LISTEN NOW… From surveillance to right to know requests, a lot of important issues are currently in the courts – and not all the news is good. Get the inside scoop with your hosts on this week’s episode of Told You So! LISTEN NOW…
As many of you know, the ACLU-NH has been fighting on my behalf to try to stop permanent police surveillance cameras from being installed in downtown Manchester. Yesterday, I received a court order denying our request for declaratory and injunctive relief, which in plain English means: the City won this round, the police will likely put up their cameras, our rights will continue to be eroded and disregarded with the full authorization of the Courts, and, apparently, we should just accept the stripping away of more and more of our 4th Amendment rights.
The Court said:
It could be argued that the City’s planned use will enable the government to violate the statute. However, simply because footage generated by the cameras could be used to violate the law does not mean the installation or use of the cameras itself violated the law…
The Court cannot find as a matter of law that the planned use of the surveillance cameras will violate RSA 236:130 [Highway Surveillance Prohibited]. Instead, the Court can only speculate that, once the cameras are installed, a government employee reviewing the footage will be capable of engaging in additional conduct that will violate the statute. Accordingly, plaintiff’s motion for summary judgement is denied.
Neal Kurk, et al vs. City of Manchester Docket No. 216-2019-CV-00501
By the Court’s logic, every single current pre-crime statute should be invalidated. You know, the ones where they say you MIGHT do something bad in the future, like crash your car if you’ve been drinking, so we will punish you right NOW, even though you didn’t actually do the thing we’re trying to prevent… Yet. (Or at all.)
The Court also failed to fully consider the legislative history, which you may recall, included this testimony from Dpt. of Safety Assistant Commissioner, Earl Sweeney in 2006, that the law would ban a police department from “setting up cameras to monitor, for example, the downtown business district to detect or deter burglaries, vandalism, drug dealing,” and, “Some police departments set up cameras to monitor downtown businesses… we do not believe that this usage would be allowed in NH without specific legislation at a future time legalizing it.”
Given this, it is safe to say we should no longer rely on the truthfulness of testimony given by government agents during the legislative process. Along the same vein, we should also not trust the MPD’s contention that they will not use facial recognition software or license plate scanners. I am willing to bet any comers they will secretly start using this technology in the future, and if the cameras go up, I encourage anyone who is in a vehicle and issued a citation or arrested in the vicinity of the cameras on Elm Street, to contact me.
While this case revolved around a narrow point of law relating to a specific statute, 82% of Granite Staters voted last year to increase our privacy rights, which tells me this matter isn’t over by a long shot.
Right of Privacy: An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.
Article 2-b, New Hampshire Constitution, December 5, 2018
I’ll conclude with the following: If you believe government can solve problems by restricting more and more of our rights and making us less free in the name of “security,” why do all stories set in the future revolve around people fighting their dystopian overlords? If the future is so bright in this Brave New World, where are the depictions of their promised land? Where is this awesome future society where, by “giving up liberty for security,” things turn out to be oh-so great for us plebs?
I’ve said it before and I will say it again: When you watch futuristic movies, who are you rooting for? In the Matrix, are you rooting for Neo or Agent Smith? In the Hunger Games, Team Katniss, or District 1 of the Capitol? Because, right now, if you aren’t on my side, you are rooting for tyranny, and it is NOT going to end well. Free people move freely. Free people certainly move freely without being surveilled by a group of people who claim to work for us while also keeping a secret list of their worst people from us.
Want to learn more? Read the backstory here, here, here, and here. Listen to my podcasts on this topic, Living with Lockdowns, Big Brother is Watching, and You Don’t Need to See This List of Bad Cops, Citizen.
I’m working on a summary of yesterday’s proceedings regarding the City of Manchester’s proposed plans to put up several surveillance cameras downtown. In the mean time, here’s today’s coverage from local media sources…
We want more privacy,” plaintiff Carla Gericke said. “We want the government’s role to be limited and restricted as it’s constitutionally supposed to be. Let’s not turn into a big brother Orwellian surveillance state.”
Gericke, a liberty activist who has sought state and local office, said she would have no issue with a storeowner installing a camera and voluntarily sharing video with police. ‘Everyone’s working together. That’s a decentralized approach,’ she said. ‘What we’re talking about here is a very centralized approach where it’s centralized in one group of people’s hands. We don’t know really what’s going to happen to the data and I think it’s naive to just say we should trust them.’
Carla Gericke, president emeritus of the Free State Project and a Manchester activist who led a protest against the cameras last April outside City Hall. She is concerned about the cameras having a chilling effect on future protests. She questioned whether the cameras would record future protesters and if the police would use the information to make a database of trouble-makers and renegades.
The hearing for injunctive relief in the matter of NEAL KURK et al. v City of Manchester is taking place today. Having now read all the rather technical pleadings, it’s difficult to predict what may happen.
On the one hand, you have us four intrepid privacy advocates, the petitioners, holding strong that under RSA 236:130, it would be illegal for these surveillance cameras to even have the capability to identify motorists or motor vehicles, since such identification is expressly banned if it “can” occur under the section entitled, “Highway Surveillance Prohibited.”
On the other side, you have the City of Manchester and its police force, who argue they can do what they want (and they usually do–remember the recent tax cap override?). The City makes several technical arguments, including that some of us lack standing under Duncan, a bad court case that lead to the successful Constitutional Amendment which passed by a whopping 83% margin last fall to restore taxpayer standing. They also seem to make the argument that we should just “trust them” to use the cameras in lawful ways. Color me skeptical.
You can read more about the case here:
Union Leader
Manchester Ink Link
Granite Grok
Follow me on Facebook to stay up-to-date on today’s developments.
Today, the ACLU-NH filed a lawsuit on behalf of 4 petitioners (and I’m one of them! :)) to block the use of police surveillance cameras on Elm Street in Manchester. Here is the ACLU-NH’s press release:
Surveillance cameras would violate a NH privacy law because they will capture motorists’ identifying information
CONCORD, N.H. – Today, the American Civil Liberties Union of New Hampshire filed a lawsuit challenging planned surveillance cameras in downtown Manchester. The cameras, which would capture live video of traffic on Elm Street, are illegal because they violate a state privacy law that specifically disallows cameras that capture a motorists’ identifying information, such as their face or license plate.
“The surveillance cameras proposed by the City of Manchester are troubling: driving down Elm Street shouldn’t include recording video of your face, license plate, and passengers,” said Gilles Bissonnette, Legal Director at the ACLU of New Hampshire. “New Hampshire is a state that staunchly defends its right to privacy, and this plan is a direct violation of that by needlessly capturing the information of thousands of Granite Staters simply going about their business.”
The current installation plan includes three permanent surveillance cameras in the area of City Hall that will look north and south on Elm Street, with a live feed transmitted to the Manchester Police Department’s dispatch office. The images captured would be recorded and stored for fourteen days. Although the intent may not be to monitor traffic, the high quality of the cameras allow users to zoom in and out, and would inevitably capture faces and license plates.
Former Representative Neil Kurk, who drafted the law in 2006 and is a petitioner in the case, said:
“The statute we are defending in this lawsuit is unique to New Hampshire and, unlike other states, provides our citizens with a right to be free from government intrusion that is tantamount to a surveillance state. The goal of this statute is to prevent New Hampshire from becoming like New York City or London where government surveillance through cameras—regardless of whether the surveillance cameras capture criminal activity—is pervasive. I am deeply disappointed that Manchester is going down the path of government intrusion by installing surveillance cameras on Elm Street. This is exactly the type of surveillance that the statute was and is designed to prevent.”
Carla Gericke, a former New Hampshire State Senate candidate and petitioner in this case, said:
“How can the police simply start surveilling downtown people and motorists without any input from the community? When I learned about the Manchester Police Department’s plan to put up surveillance cameras downtown, I organized a protest rally, and about 40 people attended. I am deeply concerned about this government intrusion. I am confident that Granite Staters do not want this type of surveillance because more than 80% voted to protect privacy when they amended the New Hampshire Constitution last year.”
The mission? Protect the peaceful people of New Hampshire from the Thin Blue Revenue Seeking Line. How? More than 30 liberty loving locals, Free Staters and others alike, spent Friday night, July 25, 2014, warning motorists in Manchester of a suspicionless “sobriety” checkpoint. New Hampshire boasts many quaint laws, including one that requires police departments to announce the date, time and place of DUI checkpoints.
Around 10 p.m. on this balmy summer evening, activists started lining up along Elm Street, the main thoroughfare from downtown. From our vantage point, the single-direction suspicionless checkpoint was tucked behind an incline, hidden from view to approaching motorists. A coincidence? As someone who has only been fined for speeding on a downhill, I think not.
Men, women, young, old, newbies, seasoned activists, some from Keene dressed in reflective gear and sporting radios, held signs to warn drivers: “Official Extortion Station Ahead,” “4th Amendment Dead Ahead,” “Remain Silent,” “Who Needs Probable Cause?” and “Swine Crossing, Turn Now.” As cars passed, drivers honked, passengers waved, people threw one handed peace signs from windows. Many cars turned to avoid the upcoming collection plate.
The previous weekend, in Seabrook, a suspicionless checkpoint yielded the following results: Out of 556 vehicles illegally searched, 9 driving-while-intoxicated arrests were made. As this Seacoastonline.com Letter to the Editor states: “While it sounds good that nine persons with a blood-alcohol concentration over 0.08 percent were off the streets, that means 547 innocent people were accosted and detained without probable cause and made to ‘show their papers’ in order to travel from one place to another.” On Friday night in Portsmouth, one man was arrested for DUI, one was cited for an open container, and two drug arrests were made.
And that’s the rub. These unconstitutional “sobriety” checkpoints cast their nets wider than their stated goal. Whether arresting drivers for blood alcohol levels above 0.08 percent really keeps others “safe” is up for debate, but arresting people for other offenses is de facto illegal. Another troubling aspect is these checkpoints are being funded by the federales. This past weekend’s Portsmouth checkpoint was funded with a $6,864 grant. The police department also received a second $6,864 grant approved for “DWI/DUI patrols,” which involve officers in cruisers looking for drivers who may be impaired by drugs or alcohol. Not to state the obvious, but isn’t that what they are supposed to be doing already?
In Manchester, only one officer engaged us, leaning out of his cruiser’s window to inform us not to stand in the road (we were in a marked parking bay). As things started to wind down, a driver made the fatal mistake of honking in support of our activism while changing lanes, doing so right in front of a squad car. Next thing: Blinding blues and reds. The motorist pulled over. A second squad car appeared, stopping in the right hand lane, blocking one lane of traffic heading towards the checkpoint. 15-20 activists came forward to observe the stop, many of us whipping out cell phones and video recorders, ready to catch the action on camera. We know the drill. The police know the drill. After all, I fought for that right all the way to the 1st Circuit Court of Appeals, and won. Instead of threatening to steal our cameras, or indeed, confiscating them as they have done in the past, the backup rookie simply said: Please don’t interfere while recording.
Sadly, the driver ended up being arrested. During the exchange with the arresting officer, he answered questions he should not have. An activists handed him a “Know Your Rights” flyer through the open passenger window, but it was too late. A Cop Block activist from Keene escalated the situation, demanding that a supervisor be called and engaging the police in a headstrong way. This, in my opinion, was a mistake. When doing street activism, especially when another person–not an activist–is involved, it behooves you to de-escalate, to figure out a way for the police to save face in order to inflict the minimum amount of harm to all concerned. As the handcuffed driver was being escorted to a cruiser, he consented verbally, on camera, to having one of us drive his car to his home, which was literally around the corner. The police refused to give us his car keys, so at least one tow truck operator got his piece of the pie that night.
Some activists went to the police station to try to bail out the man who was arrested, and almost got arrested themselves. Others resumed waving signs. On the plus side, during the traffic stop, the cruisers’ flashing lights deterred far more motorists than our sign waving had done. Nary a car passed, most turning as soon as they spotted the blue and red lights up ahead. Why? Because peaceful people don’t want to be hassled when going about their lives. Peaceful people don’t want to interact with the police. Peaceful people know a midnight encounter with the Thin Blue Line is probably not going to end well for them, or their wallets.
The Free State Project is attracting thousands of liberty activists to New Hampshire. Friday night’s activities is only one example of the many ways Free Staters are exerting their fullest practical effort to reducing the size and scope of government in New Hampshire. Find out more here in the coming months, and subscribe to the FSP newsletter.
Carla Gericke is president of the Free State Project, a 501(c)(3) organization. Carla is a recovering Silicon Valley lawyer, and holds an MFA in creative writing. She speaks and writes on a variety of liberty topics. The views expressed herein are her own as an activist, and do not necessarily reflect those of, nor are they endorsed by, the Free State Project.
[MY NOTE: This article originally appeared on Shire Liberty News in 2014. Photo from a different protest, “1984 is Not an Instruction Manual” held in 2019 to protest the UnConstitutional police surveillance cameras being installed in downtown Manchester.]
Ruling is one of many nationwide supporting right to record police.
A federal appeals court has ruled that the public has the right to film cops in public and has reinstated a lawsuit against a local New Hampshire police department brought by a woman arrested for filming a traffic stop.
The plaintiff in the case, Carla Gericke, was arrested on wiretapping allegations in 2010 for filming her friend being pulled over by the Weare Police Department during a late-night traffic stop. Although Gericke was never brought to trial, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.
Read the article at Ars Technica…
CONCORD, N.H. — A federal appeals court has refused to dismiss a New Hampshire woman’s lawsuit against the Weare police department, saying she had a constitutional right to videotape a police officer during a traffic stop.
The 1st Circuit Court of Appeals says citizens may videotape police officers performing their duties unless an officer orders them to disperse or stop recording for legitimate safety reasons.
In its unanimous ruling Friday, the court rejected arguments by Weare officers that they should be immune from liability, under a theory that allows government officials to make reasonable mistakes that do not violate clearly established constitutional rights or state laws.
The ruling allows Carla Gericke of Lebanon to pursue her civil rights violation lawsuit and claims that Weare police charged her with illegal wiretapping in retaliation for her videotaping a 2010 traffic stop of an acquaintance in another car. She was not prosecuted on the charge.
Attorney Charles Bauer, who represents the Weare Police Department, said the police could still prevail at trial if the jury finds Gericke’s conduct during the traffic stop was disruptive.
“There’s another side of the story,” Bauer said Sunday. “Right now everybody, including me, has had to accept Ms. Gericke’s side of the story.”
The appeals court judges say their ruling is based on Gericke’s version of what took place March 24, 2010, when former Sgt. Joseph Kelley pulled over the car she was following to a friend’s house. According to the ruling, Gericke stopped behind her friend’s car when Kelley pulled it over and Kelley told her to move her car to another location. Once parked nearby, she took her camera and began filming Kelley as he spoke to the occupants of the other car. Kelley ordered her to return to her car.
“Significantly, under Gericke’s account, Kelley never asked her to stop recording,” Judge Kermit Lipez wrote.
“An individual’s exercise of her First Amendment right to film police activity carried out in public, including a traffic stop, necessarily remains unfettered unless and until a reasonable restriction is imposed,” Lipez wrote.
She was charged with illegal wiretapping later that night. She filed her federal lawsuit against the department in 2011.
SOURCE: WBCVB News
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