Analysis: Playing music not advised while being recorded

The tactic of a cop playing music while a member of the public is recording them to prevent the dissemination of the material online does not pass the “smell test”


An activist is claiming a police officer stifled free speech by playing copyrighted music. Read that story here and then let us know if you have been filmed by the public as part of a "First Amendment audit."

Gordon Graham here. I recently read about a very clever technique to help thwart the efforts of those who want to record officers or confront cops with “First Amendment audits.” During these “audits,” members of the public film cops and then post the recordings on social media sites.

Someone had the ingenious idea of playing recorded songs during an “audit” to help prevent the broad distribution of the contact because the music is “copyrighted” and thus social media platforms would not carry it for fear of copyright violations. I love people who “think differently” and I respect you for your brilliant thought process.

“Gordon, you are obviously laying a foundation for your thoughts on this issue so please just make your point.”

We must understand that just about everything we do is ultimately going to become public.
We must understand that just about everything we do is ultimately going to become public. (Pixabay)

No Can Do. As a lawyer, I have an obligation to the profession in increasing billable hours so I will digress just a bit to some thoughts from the 80s.

Way back then I was a field sergeant in Los Angeles and doing quite a bit of training for my department. One afternoon I received a phone call from the assistant chief in charge of training. He was an HQ guy I had met in the past and after all the introductory comments on the call he posed this question: “How many major drug seizures have you been involved in so far in your career?” This was an interesting query and I wondered where the conversation was going.

I had been very active as a cop prior to promoting and, as a sergeant, had a great squad of cops who seized a lot of drugs. As I was calculating a number to impress the chief, a thought popped into my head, What is his definition of “major drug seizures?” I posed that clarification question to him and his response floored me: “More than two kilos of heroin, or more than 10 kilos of cocaine, more than a pound of ‘rock’ or more than 20 kilos of marijuana.” I was embarrassed to tell him the truth – which was “none.”

While I dealt with a lot of drugs over the years, I was working in Los Angeles and most of my arrests for dope involved “personal use” or occasionally some low-level street dealer who had relatively small amounts of dope for sale. While I had seen some major loads seized by LAPD and LASD, I had no personal involvement in these “big” arrests.

When I told him “none” – he explained that the CHP was going to kick off a program called “Operation Pipeline,” which involved the processes and laws for seizing drugs from vehicles traveling on major roadways (the pipeline). He wanted me to teach a portion of the program dealing with the legal aspects of these arrests and seizures, but in order to do that, I needed to have some knowledge of major drug arrests. Long story short I got involved with some officers who had made lots of major drug seizures. At that time, I knew I was doing good stuff – helping train cops to get drugs off the street and that was a good goal to have.

Stretching the law

During my “ridealongs” and discussions with experienced dope cops, I learned a lot. Almost all of the cops I dealt with were solid and doing things right. However, over the time I was teaching “Legal Aspects of Operation Pipeline” I saw some behaviors that (while not illegal) were “stretching the limits” of the law.

One cop was very clever, and he asked drivers he had stopped for some vehicle code violation (and this cop knew the code better than anyone I had ever met, and he could come up with some section of the V.C. to justify the stop), and if he suspected the car was carrying some serious dope during his investigative efforts, he would start this line of questioning:

“Have you used cocaine today?”

And the driver would answer, “No.”

And he would then follow up with, “Have you ever used cocaine in your life?”

And some drivers would say, “Yes.”

And his next question was, “And when was that?”

And the response would be, “Last year” (or some other time frame).

And the cop's next question was, “Did you get arrested for using cocaine then?”

And the suspect would say, “No.”

And then the cop said, “Well, you are under arrest for that now.”

His logic was (and this is indeed a stretch) that use of cocaine was a felony and there was a three-year statute of limitations in California – and this guy just admitted that he had committed a felony a year ago and had not been arrested – so “you are under arrest now” was a legal arrest and thus the cop had PC to search the vehicle for evidence in the vehicle. When I read the involved report, that is exactly what he wrote, and the D.A. filed the case.

In my head, that was a “stretttttttch” of the law, but the prosecutors did not have a problem with it. But I did have a problem with that. I was taught early in my career to remember the “spirit of the law” and not just the “letter of the law,” and over time I became a fan of the thinking “Just because the law says you can do something does not make it the right thing to do.”

How cops should behave during First Amendment audits

This brings us back to the “First Amendment audit” issue. So here is this person who wants to “set a cop up” for national embarrassment by recording her/his behavior and posting it for widespread distribution. By the way – for any cop who has been under a rock since the start of their career, people can (under most circumstances) video and audio record you – seriously!

I mention this because I was talking to my partner at Lexipol – and in my opinion the best police defense lawyer in America today – and he was telling me about how many cops think that people cannot record their work. Those same cops then attempt to take away the recording device or arrest someone and it goes downhill from there – but I am again digressing.

The thinking of the smart cops who decided to play music to prevent the distribution of video recordings of them is indeed clever and ingenious. But the “optics” to me are troublesome. Not considering the “legality” of the use of this copyrighted material for these purposes, to me this tactic does not pass the “smell test.”

I think we would be better served by understanding that there are a lot of people who don’t like cops and what cops do and they want to embarrass law enforcement personnel. Further, we must understand that just about everything we do is ultimately going to become public. We must focus on being the solid professional law enforcement officer(s) that we are and ensuring that everything we do is done right. And when confronted by an aggressive anti-cop person, we must strive to maintain our cool and not say or do anything that would be embarrassing if it were recorded and shared nationally.

The last lines of the above paragraph are much “easier said than done” and I fully understand that. In my younger years on the job (when I was much less mature) I would occasionally say and do things that I later regretted. Fortunately, I had the sense to accept the advice from senior officers who were apparently unflappable – and they explained that it was “part of the job” and to ignore “the slings and arrows” from those who hated law enforcement.

Rise above the negativity

I will close with this. On a recent morning hike up and down the beach here in Southern California I saw a number of motorcycle cops from a nearby police department on a training day. As I was admiring their cone work and their braking drills, the sergeant recognized me and introduced me to the group. In the ensuing hour we chatted about all the “goings on” locally and nationally and all the “baloney” (the other word will not get past the editor of this piece – she is pretty sharp) and I told them that I was envious – my motorcycle days are filled with great memories – but I am glad to be retired with all the vitriol, hate and other nastiness directed at cops today.

I was very impressed with their comments – that they loved their job and loved helping people who needed help and they loved knowing that they were making a positive difference. It was a very nice chat with these professionals and left me with a good feeling in my heart. I then chatted telephonically with some fellow “old guys” I used to ride with and told them about those motor cops I had just met. We all agreed that there are many aspects of the job today that are extremely difficult – but as professionals, we should rise above all the negativity and do what we do – saving lives. If you want to be popular, be a firefighter – work one day and take six weeks off – and everyone loves you!

This is just my thinking and I look forward to hearing your comments. Email me via editor@police1.com.

Again, to all of you who are active in the profession today, my hat is off to you for your great work.

NEXT: You're on camera: How police should respond to a 'First Amendment audit'

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