The law offices of The Law Office of Matthew D. Sharp echo the ACLU of Texas and want everyone to know that it is the right, if not duty, of every witness to a crime to record evidence of that crime.
According to an article in today’s Houston Chronicle Rufino Lara, a Latino who speaks only Spanish, was shot and killed by Officer J. McGowan of the Houston Police Department following a brief pursuit. According to a witness, Lara thought he was being chased by men with a knife and he even requested that the witness phone the police for his protection.
HPD claims that Officer McGowan yelled out commands to Lara in Spanish and English, and that Lara refused to obey and then made a threatening gesture. McGowan stated that she felt her life was threatened, so she shot Lara. However, witnesses to the shooting say that the officers never spoke Spanish. No weapon was found on Lara.
When one witness saw the shooting she ran up to Lara, whom she knew, and began recording him with her cell phone. Officer McGowan confiscated the witness’s cell phone, claiming that the witness had no right to record what had happened.
Aside from the issues of the possible misuse of force, racial profiling, and cultural insensitivity exhibited by Officer McGowan something else is terribly wrong with what transpired here. Officer McGowan took it upon herself to eliminate evidence of any wrongdoing on her part by confiscating the witness’s cell phone. In reality not only may McGowan’s actions be prohibited by law, every citizen has the right to record the actions of public officials conducting public business on public property. There are exceptions to this right, such as when a citizen actively interferes with an investigation, but the general rule is that anyone can be recorded for any reason when there is no expectation of privacy.
Officer McGowan may potentially face more than just an in-house reprimand by HPD. The Texas Penal Code section 37.09 makes it a crime to tamper with or destroy evidence that you know will be used in an investigation. Here’s the interesting part: HPD conducts an investigation every time an officer uses deadly force (for an HPD presentation on the use of force click on the link: 20100224officerinvolvedshootings). It is standard procedure to place an officer on administrative duty (desk duty) for several days following a shooting in order that an investigation may be done to verify whether the shooting was justified.
I will not speculate into whether McGowan was trying to prevent a private citizen from gathering evidence that would be used in an investigation into wrongdoing. However, it is our right as citizens to record police behavior where we believe that those who have taken an oath to protect society are in fact breaking the law.
