The Constitution Applies Locally

Our Founding Fathers did not write the Constitution for fun, it was designed to maintain a free people and limited government, and the document has had some success doing so for a long time. But just as the Fourth Amendment protection against unreasonable search and seizure also applies to local law enforcement, so do the other limitations set in the Bill of Rights and Constitution. What we see recently is local and state authorities ignoring the Constitution, and justifying it with local ordinances, or some other legal acrobatics. The federal government generally does not even try to justify their Constitutional violations, but for now I will focus on local governments.

A couple who lives in the College Park neighborhood of Orlando Florida will begin receiving up to a $500 daily fine on Thursday, because they have a garden in their front yard. They own the house, they own the yard, it is their private property, so one might think they should be allowed to do what they want with their property. Not according to the city of Orlando, reports clickorlando.com in a recent article. Apparently the local code says that people’s yards have to have a finished appearance, and that the vegetable garden does not have a finished appearance.

Now it sounds to me like a government is telling an individual what he can or cannot do with his own property, yet according to the Fifth Amendment, no person can be deprived of life, liberty, or property without due process. This constitutes deprivation of property because the city has ordered the removal of the garden, and the restoration of useless–but up to code–grass on the property, which will be met with a fine if not complied with. So without being charged, without any due process this man will either be deprived of his vegetables and his free use of the land on which they are grown, or he will face the confiscation of $500 daily because he wishes to use his land how he sees fit. Whether deprived of the land, the vegetables, or the money, this is an unconstitutional confiscation of property. The couple are seeking help from others to fight this unconstitutional city law:

“We are asking residents across Orlando and the country to join us in planting a ‘Patriot Garden’ in their own front yards,” said Jennifer Helvenston.  “Please email us at patriotgarden@gmail.com and we will send you a free packet of radish seeds and a small sign for your front yard that says ‘Patriot Garden:  Plant a Seed, Change the Law.’”

Another local violation of the Constitution came from police in Little Canada Minnesota when they confiscated a man’s video camera for filming a police response outside his apartment, according to a twincities.com article. Andrew Henderson regularly records law enforcement with his hand held camera, something obviously worthwhile to keep the ones enforcing laws honest. But now, for being vigilant over our government, Andrew has been charged with 2 misdemeanors, and the video he took before it was confiscated was deleted–presumably by the officer who confiscated the camera.

The police frisked and loaded a bloody man into an ambulance outside of Andrew’s apartment in public, but when Deputy Jacqueline Muellner saw this, she approached him, and told him the video would be taken as evidence. Andrew refused to give his last name, and calmly and correctly insisted he was within his rights to record the police, but the camera was confiscated anyway.

“I wish the police around the country would get the memo on these situations,” said Jane Kirtley, professor of media ethics and media law at the University of Minnesota. “Somebody needs to explain to them that under U.S. law, making video recordings of something that’s happening in public is legal.”

The courts have been “pretty clear” on the issue, Kirtley said. “Law enforcement has no expectation of privacy when they are carrying out public duties in a public place.”

When officers do actually need a video for evidence, they typically take that evidence on the spot and return the camera. In this case, Andrew went to the police station the day after this incident to get his camera back, but was told he would have to wait. A week later he was charged with obstruction of legal process and disorderly conduct–remember that he was standing about 30 feet away when recording, and that the deputy approached him.

In mid November when Andrew went back to get his camera, and the incident report, he was again given neither, but lectured by another officer about having respect for people’s privacy. Again Andrew reiterated that he had done nothing illegal, which is when the officer asked why no recording was on the confiscated camera. The following exchange then occurred, recorded on Andrew’s cell phone.

“I mean, were you just pointing it?” he asked Henderson.

“No. It was deleted,” Henderson surmised.

“You deleted it?”

“No. She must have deleted it,” Henderson said, referring to Muellner.

Not possible, Eggers replied. “There would have been some documentation about that.”

Beck, representing Little Canada, said Tuesday that any allegation that Henderson’s video was deleted is false.

Kirtley said the seizure and alleged erasure of the recorded material “raises significant Fourth Amendment issues for him … The seizure here was not to preserve the evidence — it was to destroy the evidence.”

The Fourth Amendment guards against unreasonable search and seizure.

We have multiple levels of Constitutional violations here. First, Andrew should never have had his video camera confiscated because he was completely within his rights to be recording in public. Second, when the clip that Andrew took was deleted by police, this constituted an unreasonable destruction of property. The unreasonable confiscation of property, as well as the unreasonable destruction of property by government, without due process, are both illegal under the Fourth and Fifth Amendments respectively.

Furthermore, Andrew was targeted with legal charges, despite having been the victim of illegal police conduct. This is an obvious attempt by local law enforcement to send a message to other would be police recorders, that they should be prepared to fight legal charges in court if they wish to exercise their Constitutional rights. There have been numerous cases like these all over the country as of late, and even the courts have ruled on various occasions that police can indeed be filmed in public, and the public should not have to fear legal consequences for exercising their rights.

“Police are in a position where they have a certain power that should be watched by the citizens,” [Andrew Henderson] said, explaining his motivation. “The best way to watch them is to film them and hold them accountable for their actions.”

Police who are doing nothing wrong, and acting appropriately, according to the Constitution have no reason to fear being recorded in public. It is a fact that many people abuse their power, so by recording police, we are just keeping them honest. But one thing is for sure, no legal or other recourse should come from the government, targeting a vigilant citizen with a healthy distrust of government.

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