Kern County Videos Released from One Cellphone

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The Kern County Sheriff’s Office released the video from one of the cellphones.

Note at 5:43 of the second video, you can see video being recorded on the second cellphone.  You know, the one that the Sheriff questioned if it ever existed.

 

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Did the Kern County Sheriff Illegally Seize Videos of Deputies Beating a Man to Death?

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It is quite possible that under federal law, the Kern County Sheriff’s Office illegally seized two cellphone videos from citizens.

The Privacy Protection Act, 42 U.S.C. 2000aa(a) (hereafter PPA), states:

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication….

This law provides that if a person takes a video of police action and intends to disseminate it to the public, the police can only obtain the video by subpoena, not by a search warrant.  In this case neither of the individuals who had their property seized were suspects in the crime being investigated, the death of David Silva at the hands of Kern County Sheriff’s deputies, nor were they being arrested.

The sheriff’s office was aware of the video because the individual that taped the beating called 911.

Further, that individual informed the 911 personnel that she intended to disseminate the video to the public (at 0:46 of the call), saying “I’m sending it to the news.”  At this point, the Sheriff’s office was on notice that this was “work product” protected by the Privacy Protection Act, and should have been obtained by subpoena, not by a search warrant.  Indeed, the law specifically provides that a warrant can only be used after a subpoena has failed to obtain the material.

This is clearly established law, first ruled on 20 years ago.  In 1993, the United States Secret Service raided a computer game company under a search warrant, and seized a large amount of files.  Included in these files was material that was to be published and disseminated to the public.  The company immediately notified the Secret Service of this, which promptly ignored the company and refused to return the material to it.  Note that the company was not a suspect in the criminal investigation.  The court held that the United States was liable to the company for damages for each and every day that they held the material after having been notified of its character under the PPA.  Steve Jackson Games v. United States Secret Serv., 816 F. Supp. 432 (W.D. Tex. 1994), aff’d 36 F.3d 457 (5th Cir. 1994).  Steve Jackson Games were awarded over $ 50,000 in damages, plus $ 195,000 in attorney fees at the trial court level.

This has continued to hold true in other cases.  See generally Morse v. Regents of the Univ. of Cal., 821 F. Supp. 2d 1112 (N.D. Cal. 2011) (holding that officers and chief of police were not entitled to immunity for PPA violation); Citicasters v. McCaskill, 89 F.3d 1350 (8th Cir. 1996) (PPA requires use of a subpoena unless a listed exception is met); Minneapolis Star & Tribune Co. v. United States, 713 F. Supp. 1308 (D. Minn. 1989) (comments in dicta, case is on attorney fees following summary judgment for violating PPA by police seizure).

Note that every day the video is held by the sheriff’s office without returning it to the owner increases the damages, as the video could easily be sold to any number of news providers.

I’m surprised that the attorneys representing the videographers have not mentioned this at all.

 

 

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