A Florida woman spent the night in jail after a Broward County sheriff’s deputy accused her of committing a “felony” by audio recording their conversation during a simple traffic stop. Upon review, all charges against her were dropped — but now the Broward Sheriff’s Office (BSO) is facing a lawsuit. Brandy Burning, a single mom, was pulled over by BSO Lt. William O’Brien for driving in an HOV lane. After some back-and-forth about her traffic violation, Burning informed the officer that she was recording their conversation.
“Oh, I forgot to tell you I was recording our conversation,” Burning is heard saying in the audio.
“I’m sorry?” O’Brien responds.
“I have to tell you, I forgot to tell you I was recording,” she repeats.
It was at this point that O’Brien accused her of committing a “felony” and demanded the cellphone. He also told her he knows the law better than she does.
“You are committing a felony. Hand me the phone,” O’Brien orders.
“No, I am not,” the defiant woman says in the audio. “I am not giving up my phone.”
As Washington Post opinion blogger Radley Balko correctly notes, “[In] every state in America, you are well within your rights to record an on-duty police officer.”
“There are a few limited exceptions, such as if while recording you physically interfere with an officer trying to perform his duties. But as long as you aren’t in the way, you’re protected by the First Amendment,” he writes.
After allegedly climbing into the car and attempting to take the phone forcefully, O’Brien removed Burning and arrested her. The mom can be heard screaming on the tape, demanding the officer take his hands off of her.
“Get off of me! You are breaking the law!” she yelled. “I am not getting out of my car. Get off of me!”
by Carlos Miller of PINAC
Broward County, FL — Less than a month after Broward Sheriff’s attorney and political spin doctor Ron Gunzburger sat on a panel with me claiming his department is fully trained to respect the rights of citizens to record in public – berating me for having even suspected otherwise – more evidence has emerged confirming he is pretty much full of it.
The latest incident emerged Tuesday involving a commanding officer with more than three decades of experience as well as a history of larceny, arresting a woman for audio recording a traffic stop, forcing his way into her car to grab her phone, then pulling her out and dragging her on the gravel, injuring her in several places as another deputy stood by with his gun drawn.
All while yelling at her that she was committing a felony, telling her, “I know the law better than you.”
But it was Lt. William “Bill” O’Brien that was committing a felony by unlawfully entering her car and detaining her against her will, not that he will ever face those charges.
In fact, if it wasn’t for his undeserved badge, she would have had every right under Florida’s Justifiable Use of Force to kill him considering he had forced his way into her car and violently dragged her out, so we once again come to the realization that cops are above the law. [Washington State law provides for citizens to defend themselves against unlawful force, even by cops.]
How else can you explain that after all the hoopla O’Brien made about Brandy Berning committing a felony, he ended up charging her only with misdemeanor resisting arrest aka contempt of cop, which was enough for her to spend the night in jail, a charge that was quickly dropped?
“I know the law better than you.”
Those words are especially infuriating to me because those are the same words a clueless Metrorail security guard used before he attacked me for taking photos on a train platform! Those are the same words I’ve heard cops say in several Youtube videos where they are trying to intimidate the person from recording, so it’s probably something they are training them to do.
The truth is, O’Brien just wanted to teach Berning a lesson. No different than officer Rojas of the NYPD who is making national headlines this week for unlawfully arresting a man video recording him in a subway station.
The O’Brien incident took place in March of last year, four months before the Broward Sheriff’s Office introduced its over-hyped and under-read training bulletin, which Gunzburger has been touting as proof his agency is leading the way in respecting the rights of citizens to record.
Carlos Miller and Broward Sheriff’s Attorney Ron Gunzburger
But PINAC correspondent Jeff Gray proved that wrong less than 24 hours after the panel when he tried to record a jail from a public sidewalk and was informed that he was ‘breaking the law’.
While the Broward Sheriff’s Office is not publicly speaking about the Berning incident, we can imagine that Gunzburger’s spin on this would be that it took place before the training bulletin was issued, therefore giving O’Brien the excuse that he had no clue citizens had the right to record him in public.
But, contrary to the headline in the training bulletin that describes this right as “evolving law,” giving the impression that the right for citizens to records cops was recently granted to us, numerous court cases have long established it is protected by the First Amendment, including in the year 2000 by Smith vs Cumming from the 11th Circuit U.S. Court of Appeals, which includes Florida, that 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.
So there is no excuse for O’Brien, who has been a cop since 1975, to not know this. After all, as they always tell us, ignorance of the law is no excuse.
But try telling that to Broward Sheriff Scott Israel who was accused of violating state ethics laws when he underpaid a five-day luxury yacht cruise to the Bahamas for his family courtesy of a donor.
The state ethics committee found probable cause that he violated the law but they let him slide anyway, citing his “lack of experience” in office and “reliance of advice from counsel” as a legitimate reason not to criminally charge him.
In other words, the sheriff, who never shuts up about this 30 years experience as a law enforcement officer, was relying on advice from Gunzburger, who never shuts up about that damn training bulletin.
Broward County Sheriff Scott Israel
According to the South Florida Sun Sentinel:
Israel told state officials that he relied on the advice of Gunzburger, the longtime general counsel for the property appraiser’s office at the time, who is the son of County Commissioner Sue Gunzburger.
Gunzburger advised the sheriff that the cruise could be valued at $1,500 based on Carnival’s rates. Gunzburger said state law directs officials to value transportation at the rate of a “comparable commercial conveyance.”
He also advised the sheriff that the party aboard the yacht wasn’t worth more than $100 and didn’t have to be reported.
But Guillemette said Israel accepted the advice even though it didn’t “smack of rationality,” and he is “still responsible for his actions.”
She told the board that she believed “Mr. Israel attempted to turn a blind eye to the actual cost in order to evade reporting it … that he had taken these rather large gifts on two separate occasions from one particular donor.”
The seven commission members — an eighth recused herself because of a conflict of interest —struggled to come to a decision in a private session Friday, the recording of which is now public record. Some members agonized over marring the sheriff’s record, but others were disturbed by the low amount he paid for the yacht trip.
So with leadership like that, it’s no wonder O’Brien believed he was above the law when he arrested Berning last year for recording him after he pulled her over for driving in the car pool lane during rush hour by herself.
This is a cop who, according to records, left his job as a Pompano Beach police officer in 1996 for “misconduct” after he came under investigation for larceny, only to rejoin the police department less than three months later in what the department described as a “transfer within agency (no break in service).”
Meanwhile, countless citizens have lost their jobs after being unlawfully arrested, never getting a chance to redeem themselves to their employers after they are cleared of the charges.
This could have easily happened to Berning who was jailed overnight, unexpectedly disrupting her life because she wanted to document her exchange with O’Brien.
She is in the process of filing a lawsuit, so we should have more details about how it affected her in the coming weeks. But even if she does win her case, O’Brien will not be affected in the least bit because cops are rarely held personally liable for actions they commit while on duty.
In 2011, Broward Sheriff’s deputy Paul Pletcher was off-duty when he confronted a woman in a road rage incident, ordering her passenger to hand over his phone because he was recording the altercation. Pletcher then allegedly drove off with the phone before tossing it in a nearby parking lot.
After a seven month investigation, he was criminally charged with several felonies, but even then, it took another several months to actually fire him. And when he finally went to trial last month, a mistrial was declared because the judge had a personal emergency.
So the wheels of justice turn excruciatingly slow when it comes to disciplining one of their own, which is why we must record all interactions with police because the camera is the only protection we have against these so-called protectors.
It’s especially important when dealing with Broward sheriff’s deputies who are in dire need of a four-week training course on the right to record, not just a four-page training bulletin that doesn’t even inform deputies they do not have the right to confiscate cameras as evidence without a court order.
The truth is, they don’t know the law better than us. Not when it comes to this issue. So it’s up to us to teach them the law because they are under the impression they can make it up as they go along.
UPDATE: The entire conversation between O’Neil and Berning was posted in the South Florida Sun Sentinel.
Below is the full video from last months’ Right to Record panel that was sponsored by the National Press Photographers Association. The audio is horrible but that is a result of Taylor Hardy, who was manning the cameras, focusing his efforts on live streaming the event to more than 300 viewers through his iPad, which was a job onto itself.
Next time, we’ll be better prepared.
