An Open Letter to Brevard County Sheriff Wayne Ivey
On Wednesday, October 23, 2013, your deputies arrested Photography is Not a Crime Editor Jeff Gray for legally video recording a traffic stop from a respectable distance, knocking the iPhone out of his hand and causing its screen to shatter, claiming his actions somehow jeopardized the safety of the deputies conducting the stop.
Now your department is refusing to return the shattered iPhone, along with his body-mounted cameras, claiming they must be held as “evidence” against Gray.
But cameras can only be held as evidence if they are used during the commission of a crime such as child pornography or upskirting, not trespassing or resisting arrest as Gray was charged with.
Obviously, the real crime here, at least in the eyes of your deputies, was that he was video recording the traffic stop, which was why they knocked the phone out of his hands and are refusing to return it along with the other cameras, even though they should be considered personal property and be returned upon release.
Judging by the deletion of comments from the Facebook page of the Brevard County’s Sheriff’s Office criticizing and questioning Gray’s arrest, it is becoming evident that withholding the cameras is merely an attempt at damage control.
As your staff has been informed, your department may be legally liable for destruction of public records for deleting comments on a social media page funded by taxpayer dollars.
Your department may also be held legally liable for arresting a citizen for video recording a traffic stop as numerous court decisions have determined that this is protected by the First Amendment, including Smith vs the City of Cumming, which states the following:
As to the First Amendment claim under Section 1983, we agree with the Smiths that they had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest
Last year, the United States Department of Justice compiled a set of guidelines for police departments regarding the rights of citizens to record police on duty, listing several more significant cases that further affirmed this is Constitutionally protected behavior as well as pointing out that the warrantless seizure of a camera, unless it is done under exigent circumstances, which is not the case here, is a violation of a citizen’s First and Fourth Amendment rights:
Police departments must also recognize that the seizure of a camera that may contain evidence of a crime is significantly different from the seizure of other evidence because such seizure implicates the First, as well as the Fourth, Amendment. The Supreme Court has afforded heightened protection to recordings containing material protected by the First Amendment. An individual’s recording may contain both footage of a crime relevant to a police investigation and evidence of police misconduct. The latter falls squarely within the protection of First Amendment. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”). The warrantless seizure of such material is a form of prior restraint, a long disfavored practice. Roaden v. Kentucky, 413 U.S. 496, 503 (1973) (when an officer “br[ings] to an abrupt halt an orderly and presumptively legitimate distribution or exhibition” of material protected by the First Amendment, such action is “plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.”). See also Rossignol v. Voorhaar, 316 F.3d 516, 522 (4th Cir. 2003) (Where sheriff’s deputies suppressed newspapers critical of the sheriff “before the critical commentary ever reached the eyes of readers, their conduct met the classic definition of a prior restraint.”). An officer’s warrantless seizure of an individual’s recording of police activity is no different. See Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D. Penn 2005) (By restraining an individual from “publicizing or publishing what he has filmed,” officer’s “conduct clearly amounts to an unlawful prior restraint upon  protected speech.”); see Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634, 637 (D.Minn. 1972) (“it is clear to this court that the seizure and holding of the camera and undeveloped film was an unlawful ‘prior restraint’ whether or not the film was ever reviewed.”).
Sheriff Ivey, it is obvious that you are no stranger to social media, frequently posting on your personal Facebook page as well as your official “public figure” Facebook page, not to mention the official Brevard County Sheriff’s Office Facebook page where numerous comments have been deleted.
So we ask that you provide a public statement on the latter two Facebook pages as to why was a member of the public arrested for legally recording a traffic stop and why haven’t his cameras been returned?