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Ask Our Lawyer - July 2010

Just the Facts/Video Ma'am

You Are on Your Bike, So What Is Wrong/right with Videotaping Your Own Arrest?

Q. Is it ok to videotape my own/others arrest? I heard about the motorcyclist that was arrested after he videotaped his arrest and put it on the internet. Is it against the law in Illinois to video an arrest? Can the cops confiscate my cell phone if I do videotape the arrest? I am pretty outspoken when it comes to my 1st Amendment rights so I need all the help that I can get. What kind of trouble can I get into?

- ABATE member.

A. Believe it or not, several states have interpreted their laws as barring the videotaping of arrests. Illinois and Maryland have laws along this line. So far, Indiana and Ohio been spared of this direct encroachment of our 1st Amendment rights, but those courts or legislatures may soon follow suit.

The first question to be asked is what is wrong with videotaping the facts? Second question is: what are the cops afraid of – other than the facts? The police say in their defense that videotaping an arrest is an obstruction and interference with the arrest. I say that barring such videoing of the “facts” is an obstruction of justice and a dampening of the truth. As the lawyers say,” video speaks for itself.”

In Maryland, a motorcyclist had a helmet mounted camera. He exercised his 1st Amendment right to video the police officer during a traffic stop. Ironically, no arrest was made at the time of the stop. Only after he posted the video on the internet showing the officer waiving a gun and acting crazed and silly, was an arrest made. I am sure the cop was embarrassed, but so what?

In San Francisco a police shooting was videotaped by several witnesses on cell phones. Police seized all cell phones within sight – except for one who escaped on the train just as the door closed in the face of the pursuing police officers. That scene was complete with the police pounding on the windows of the train as it sped off. And it appears that this cell phone video, which made it to the web, is the only evidence available to the public.

Numerous cases involving violation of constitutional rights have been solved ONLY because some quick thinking citizen “captured” the evidence on video. In answer to your question – Yes – be prepared for the confiscation of your cell phone, if you video cops doing bad things. It might help you if he hears you calling your lawyer at ABATE LEGAL– 800-257-4337 for advice, before he gets your phone. The police do have the right to ask for the names and addresses of all who have video of an arrest. This could be evidence in a case that could convict or exonerate, but it is evidence nonetheless.

In fair play, it is common sense that the police do have the right to confiscate cell phones that are being used in a crime – e.g. child porn. But if you wish to be outspoken regarding the violation of your 1st Amendment rights, be prepared to call me with my number and have it programmed into your cell phone. If the cop decides to take your phone, maybe at the very least, he will let you upload your phone numbers. All he can do is say no.

Willful Conduct

I usually get a fair number of questions regarding wills and other estate documents. Here are some of the recent ones that raise interesting points - Rod

Q: I was reading your article in the June ABATE news and have a comment. PLEASE, when people are making out wills and trusts, don't ever put in NO life support. Many years ago, my brother (a paramedic who trains people to become paramedics, and is a paramedic on a medical helicopter) told me if you were in an accident and they had to do emergency surgery, you, in effect, are on life support during that surgery. The word “limited” is used a lot. Make sure your power of attorney is aware of the differences, as well. I'm not an expert by any means, however, it made sense to me and our attorney when making out our wills and trusts.

- Jim Ernest, Sycamore, Illinois

A: It’s always important to be clear in expressing your wishes, especially when you are working with wills and other estate documents. You should never put end-of-life decisions in a Last Will and Testament, since it has no effect until you are already dead. Instead, if you wish to express your wishes about end-of-life care, use a Living Will and Health Care Power of Attorney. Most states, including Illinois, have recommended language for a Living Will. Using that language as the basis for your documents will ensure that your wishes are clearly expressed.

Q: As an Indiana ABATE member, I am interested in the offer to do a will. Can you tell me how I should proceed?

A: Check out www.ABATELEGAL.com, the ABATE LEGAL web site. There you will find a will questionnaire to fill out. If you have questions, give us a call.

Q: We really enjoy your article in Outspokin' every month. Please send us info on wills & living wills. We are life members of ABATE of Ohio. Thanks.

- Joe & Edie Erwin, New Philadelphia, Ohio

A: Thank you for your kind words. We have a will questionnaire on our web site (www.ABATELEGAL.com) that would be helpful. Fill it out and email or fax it to us and we will get the wills done. If you have questions call us and we will help.

Insurance redux?

Q: I just read your question and answer in a recent newsletter in regards to the state sending out letters for proof of insurance. In Ohio I was told if a vehicle has a current registration (current valid license plates) it must (by law) have insurance. So if my “summer only” car has plates that expire in February, it is against the law to cancel my insurance in September, even though the car will not be driven until the next summer. This is BS! Could you possibly go into depth more about this issue in an upcoming Outspokin? Thanks again.

- Joe & Edie Erwin, New Philadelphia, Ohio

A: It seems like every time you turn around, there’s another government demand that we have to comply with, and this seems like one of them. However, this one might actually make some sense. The purpose of financial responsibility laws to ensure that there is some coverage available if your vehicle is involved in an accident. Most states require that a vehicle with a current registration maintain minimum coverages for liability coverage (the insurance coverage that covers people you may be involved in an accident with). The laws generally do not require comprehensive coverage (insurance that pays you if your vehicle is damaged). The thought behind the requirement is that if a car has valid registration, it may be driven, even if it is a seasonal vehicle. (There’s usually at least one or two days in the winter when it would be reasonable to drive a seasonable vehicle.) If there’s a concern about spending money on coverage you won’t use, you can talk to your agent about policies that take seasonal use into account, or you can drop your comprehensive coverage when you don’t plan on driving.

Speed Clocking

I got heard about this from a member and thought I would share it with you. The Ohio Supreme Court recently determined that testimony by a police officer who performed a visual estimation of vehicle speed is adequate evidence to convict a driver of speeding. The case is Barberton v. Jenney, Slip Opinion No. 2010-Ohio-2420.

Under the reasoning of this decision, you can be stopped for speeding and given a ticket just because an officer says he thinks you were speeding. He doesn’t radar or laser evidence, or even show that he estimated your speed by pacing you and then noting the reading of his own car’s speedometer. Allowing the officer to only use visual estimation means that there is nothing to challenge other than the officer’s word. The cop just needs to show that he went through some sort of “training” in visual speed estimation.

This is how most speeding tickets were enforced in the 50s and 60s, so, this is not news. I think that a comprehensive study needs to be made to debunk the myth that police can accurately determine the speed of a vehicle just by visual observation.

Folks that are traveling this summer, especially those living in or traveling through Ohio should be wary.

Ride Safe and Free,
Rod Taylor
ABATE Legal Services

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at rodtaylor@abatelegal.com. © 2010, A.B.A.T.E. Legal Services