The Incident
February 13, 2011 Mark Fiorino, age 25, was stopped in Philadelphia by a police officer for carrying a holstered, 40 caliber Glock, in plain view on his left hip. The officer drew his own weapon, defensively aimed at Mr. Fiorino’s chest and asked “Yo, Junior… what are you doing?” The officer did not identify himself as a police officer, but did tell Mr. Fiorino that his name was Sergeant Michael Dougherty, when asked. Sergeant Dougherty called for backup, ordered Mr. Fiorino to his knees, and finally ordered him to lay face down. Through the course of verbal directives, orders, and unprofessional language on the part of the police officers involved, it was discovered that Mr. Fiorino had been voice recording the entire incident. The police did not confiscate the voice recorder, nor was he arrested for recording the incident, however, and forty minutes after Sergeant Dougherty drew his weapon, Mr. Fiorino was released.
Mr. Fiorino posted the audio recoding on Youtube. During the recording the police officers can be heard making direct, lethal threats to Mr. Fiorino, and it is apparent that there was confusion as to the open carry laws in Philadelphia. Further into the recording and upon discovery of the device, an unidentified police officer can be heard saying, “He set us the fuck up. That’s what he’s fucking doing.”
According to Mr. Fiorino, 5 days after he posted the audio recording on Youtube, he was charged with Reckless Endangering Another Person and Disorderly Conduct (defined below). According to the Municipal Court of Philadelphia Criminal Docket, he was arrested on April 21, 2011, over 2 months after the incident occurred.
- § 2705. Recklessly endangering another person: A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.
- § 5503. Disorderly conduct: (a) …A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he: (4)…creates a hazardous or physical offensive condition by any act which serves no legitimate purpose of the actor. (c)…as used in this section “public” means affecting or likely to affect persons in a place to which the public or a substantial group has access…
There are number of very disturbing elements associated with this case. First, is the officer’s statement that “He set us the fuck up. That’s what he’s fucking doing.” Let’s assume that he did “set them up.” Is this illegal? At no time was he disrespectful, did he use derogatory or foul language, nor did he refuse to comply with officer’s orders, even though he did question them. He never drew his weapon, he offered proof of his carry permit and driver’s license, he never threatened any officer, nor did he threaten revenge. In all fairness, Mr. Fiorino was fully aware that HE was being recorded, the police officers, on the other hand were not. That said…
Under the circumstances, Mr. Fiorino had done nothing illegal. He had a permit to open carry, was not bound by any laws forbidding him the right to carry a voice recorder or of recording in public. In fact, the device had been set to record long before the incident occurred. To top this off, Mr. Fiorino acknowledged that even though he did not see the officer pull his weapon, he was fully aware that it was a police officer that made the “Yo, Junior…” comment.
Throughout the recording, the police officers sound angry, defensive, paranoid and very confused about the law. But, as we have all been told… Ignorance of the law is not a defense for ANYONE, including police officers. As for the audio recording, there is NO EXPECTATION OF PRIVACY in public for anyone either.
The police commissioner commented on the case, and apologized for the language and treatment of the officers. He also stated that the first thing an officer needs to do is “protect himself.” Police officers are not paid to “protect themselves” for as harsh as that seems, they are paid to honor the oath they took to uphold the law and are ethically bound not to betray the public trust. When anyone of them is unable or incapable of doing this, it is time to turn in the badge.
Most important, Mr. Fiorino was NOT arrested at the time of the incident for any reason. Once the officers became clear on the law, he was released. This is a clear case, of “no case” until after the audio was released to the public.
A Constitutional Issue
Many pro gun-rights activists will try to tell us that this is a Second Amendment Issue. Others will try to tell us that this is a Fourth Amendment issue. I believe that this is a First Amendment issue… abridging the freedom of speech and of the press. Of course, we can never forget the Ninth Amendment, even though it is implied in every situation in which Constitutional Rights cases are challenged,
- First Amendment:
- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- Second Amendment:
- A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
- Fourth Amendment:
- The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- The Ninth Amendment:
- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
It is blazingly apparent that Mr. Fiorino was charged well after the incident, but within days of the Youtube posting. For this reason, I believe it is the posting itself that drove the arrest. It is not clear that the charges were brought against him as a result of the behaviors in the February incident, of if the act of posting the audio on Youtube itself was deemed “reckless endangerment” and “disorderly conduct.” If so, we are looking at a First Amendment issue, NOT a Second Amendment violation. At most, if the charges are related to the February incident, Mr. Fiorino MAY have a Fourth Amendment case, but if he did, in fact, set up the officers, they may actually have a case against him.
POSTING ON YOUTUBE
Most people understand that posting on Youtube is an exercise in free speech. They also understand that when videos are posted that it is a form of “reporting,” and therefore, I contend, that it is also protected under “Freedom of the Press,” which may be a stretch, but because many people that utilize Youtube BELIEVE they ARE reporters, and many that watch those videos BELIEVE they are being informed of news, there may be a case there. So, from where I sit, Mr. Fiorino was blameless and may simply be a target in the anti-recording sentiments currently held by most police departments in the country.
The Fraternal order of Police has pushed for laws that bring with it imprisonment for citizens that record the actions and comments of police. In Chicago, there are laws on the books that make recording a police officer a felony that comes with a 15-year prison sentence.
We seem to have moved beyond the police officer’s duty to honor his or her oath, which is wholly idealistic, into something quite different. We seem to be living in a war zone. Only it’s not the police against the criminals, it is the police against the citizenry. And the abuses are so widespread that extraordinary steps are being taken in an attempt to ward it off.
The San Diego Police Department has designed a program designed to identify police officers that may be on the edge of engaging in misconduct, and have in fact, established a hotline for citizen reporting.
The Newark Police Department is being investigated by the United States Department of Justice after there were 418 claims of serious alleged civil rights violation over a 2 ½ year period,
According to the National Police Misconduct Statistics and Reporting Project website, there were 4,861 reports of misconduct by 6,613 law enforcement officers against 6,826 alleged victims, 23.8% of which were for excessive force, and 9.3% for sexual misconduct. And, I believe these numbers wholly underestimate the actual number of occurrences of misconduct.
But, let’s give police officers a break. Although some may be “bad apples” that snuck through the screening process, most people that enter the force do so with the intention of doing good works. Once in, however, they become a part of a brotherhood that is flush with power and authority, and encourages the belief that they are somehow above the law, and not subject to it. It is only the rare officer that is taken down for abusive behaviors, and usually only when the behavior is so blatant that it is impossible to hide, explain or defend.
This bond is not unusual for any group of people that have to face threat to life and limb for any length of time, it is not difficult to understand how police officers develop an “us against them” belief. Just as in war, soldiers are bound to one another for personal survival, and so are police officers. But because of this natural evolution, and because the citizenry pushes back with video and audio recording police officer’s actions, more and more, police are facing Federal lawsuits and Federal reprimands. So, in turn, when citizens are caught recording, the person responsible is held up for persecution, harsh response and even time in prison.
It will be interesting to see how the Mark Fiorino case plays itself out. If the court finds that this was a “set up,” it may not look too long or hard at the alleged violation of Mr. Fiorino’s civil rights. And, if that’s the case, Supreme Court here we come. If the charges are a result of the Youtube posting, I think it will also lead to a trip to Washington, but not for the reasons Mr. Fiorino intended. In either situation, his case WON’T be argued before the Supreme Court Justices for Second Amendment issues, which was the original intent that drove him to the streets of Philadelphia with his Glock on his hip. Let’s keep our eyes open on this one.
Mark Fiorino on the Michael Smerconish Program May 16 2011 Part 1
Mark Fiorino on the Lars Larson Show 05/17/2011
The News Factory,
New York Times
2010 MPMSRP Police Misconduct Statistical Report
UnionLeader.com
Weare Police Face More Federal Lawsuits
No comments:
Post a Comment