Put Down Your Rights and No One Needs to Get Hurt!

by Wendy McElroy, The Future of Freedom Foundation
Jul. 14, 2011

Few activities are as dangerous as watching a cop too closely, as John Kurtz knows well. Kurtz is the founder of the Orlando, Florida, branch of CopWatch, a network of activists in the United States and Canada who patrol the streets on foot or in a vehicle to monitor and document police activity in order to spotlight misconduct and brutality.

Kurtz’s recent arrest for “obstructing justice” and conviction for “resisting arrest without violence” spotlight a growing trend in law enforcement. Police are arresting peaceful people virtually at will based on vaguely worded laws that are an invitation to rampant abuse. Such laws have become a standard police intimidation tactic.

Consider “obstruction of justice.” The typical definition as it relates to police officers is “the interference with an officer who is discharging his duty.” Depending on the state, obstruction can include providing a false name, the interception of police radio communication to avoid detection, eluding a police officer, and refusing to assist an officer or to comply with a command.

In reality, obstruction charges have been laid for arguing with a policeman or asking him questions, gesturing in almost any manner, invoking the Constitution, refusing to produce I.D., and recording a police officer even when it is legal to do so.

The penalties vary widely not merely from state to state but also on the type of obstruction being charged. Non-violent obstruction is usually a misdemeanor punished by a fine but some acts are deemed felonies, punishable with jail time. As the case of John Kurtz illustrates, however, both the bringing of charges and the ultimate punishment often depend not on the actual “offense” but upon the desire to pound authority into the non-subservient. Disrespecting authority is fast becoming the worst “crime” in society.

The case of John Kurtz

On January 1, 2011, Kurtz was in downtown Orlando when he observed police officer Adam Gruler arresting a man on a domestic-violence charge. The arrest involved “the use of tasers, a violent take-down and the pepper spraying of a man already subdued and in handcuffs.” Kurtz announced himself, stood to one side, and began recording the incident. Florida law allows in-person recordings in public places where there is no expectation of privacy; it further allows the recording of police officers as long as it does not obstruct the enforcement of law. Nevertheless, Gruler demanded Kurtz cease recording. When Kurtz informed Gruler that he “knew his rights,” the officer threw Kurtz to the ground and arrested him as well.

Kurtz was charged with three offenses: obstruction of a law-enforcement officer; battery on a law-enforcement officer; and resisting arrest without violence. The latter charge can refer to any nonviolent “resistance” to arrest, from running the other way to asking, “What am I charged with?” Resisting arrest without violence is another increasingly popular intimidation tactic used by many police departments. Of the Orange County, Florida, police department that conducted the Kurtz arrest, local news channel WFTV reported as early as 2006,

Defense attorney David Bigney says he rarely sees a case now where resisting isn’t a charge. “All these people want is to know why, what’s going on here, but the officer decides I’m just going to arrest you," said Bigney. And often it’s the only charge. In more than 25-percent of the 4000-plus cases Eyewitness News tracked, resisting was the only charge. That begs the question: if there’s no arrest for something else how could they be resisting arrest?

Kurtz had an advantage, however; he taped the entire incident. But, somehow, during his subsequent processing at the police station, Kurtz’s camera went missing and never showed up either in evidence or in his returned belongings. Fortunately, a Big Brother street camera captured the incident; it discredited the police account and agreed with several witnesses who claimed Gruler committed the only violence that occurred. The camera evidence was most fortunate because Kurtz faced a 6-year prison sentence for the three charges and, in the absence of hard evidence, the court tends to believe police officers. Gruler’s initial report on the arrest stated that Kurtz was too close as he and another officer restrained the first man (obstruction) and that Kurtz pushed him (assault). With the street camera evidence, however, Gruler’s initial account of the event changed significantly. But, as a press release noted, the street camera “effectively disproves all three versions of arresting officer Adam Gruler’s story as to where, when and how the supposed battery took place."

Thus, on June 30, a jury found Kurtz not guilty of battery on a law-enforcement officer but guilty of resisting arrest without violence. (The obstruction charge had been dropped.) The judge imposed the stiffest penalty possible upon the unrepentant Kurtz: 30 days in jail (less 7 days served), a one-year probation, and a 12-month restraining order to stay at least 100 feet from police officers engaged in duty. Typically, resisting arrest without violence receives a slap on the wrist; a sentence such as Kurtz’s is almost unheard of. Moreover, Kurtz commented, “In the multiple plea deals I was offered, jail time was never mentioned, in fact my last plea offer didn’t even include probation and this is when I was charged with a felony, as well as resisting arrest without violence.”

Punished for his activism

The stiff sentence had been foreshadowed by the judge’s attitude in court, which Kurtz — an activist for jury nullification — described as “statist bull-crap.” For example, the judge refused to allow disciplinary reports or other evidence of Gruler’s extensive history of police misconduct and brutality. In 2006, the Orlando Sentinel reported, “Adam Gruler is a hunter. That’s one of the nicknames given inside the Orlando Police Department to the young, aggressive cops.... Their job: create a "no-tolerance zone" for crime of all kinds.... He also has become one of the department’s top Taser users….” Gruler has had dozens of complaints lodged against him for behavior similar to that captured in a YouTube of 2007 unlawful arrest by Gruler of another man who had been legally recorded him.

The stiff sentence may have also been prompted by Kurtz’s high-profile acts of local civil disobedience. For example, he is one of the videographers of the recent arrest of members of Food Not Bombs, an organization devoted to sharing food with the homeless. An Orlando ordinance forbids the feeding of homeless people within 2 miles of City Hall. Kurtz and others of Food Not Bombs maintain that the ordinance is an unconstitutional restraint of First Amendment rights. On June 6, the Huffington Post reported, “Over the past week, twelve members of food activist group Food Not Bombs have been arrested in Orlando for giving free food to groups of homeless people in a downtown park.” They have been charged with trespass and “intent to feed.” Kurtz — who was featured at the recent libertarian gathering PorcFest — was instrumental in creating the viral YouTubes of Food Not Bombs arrests, which have embarrassed the police by showing them arresting peaceful “people who are simply trying to help their fellow man.” The title of one YouTube video showing an arrest for feeding the hungry asked police officers, “Do You Really Support What Your Co-Workers Are Doing Here?”

Currently, Kurtz is raising funds to appeal his conviction. The main reason he cites for the appeal is the 100-foot restriction on approaching police officers, which means "effectively ending my participation in Orlando Copwatch." He is attempting to involve the American Civil Liberties Union on constitutional grounds. A CopWatch press release explains,

Kurtz sights [sic] that the prosecution during closing arguments and judge during sentencing, say that when Kurtz approached the scene with his camera and told the officers “calm down, I am filming you” that act by itself was interfering, obstructing or opposing a police officer, and thus, the form of resisting arrest without violence. Kurtz insists that this form of free speech is absolutely protected by the First Amendment of the United States Constitution.... This is specifically upheld by the US Supreme Court in case Houston vs. Hill, 1987, and Florida Supreme Court Case, Florida vs. Saunders, 1976, as well as other case law. These rulings have never been overturned.

Private property no defense

Time after time, when punitive arrests or punishments for obstruction or resisting arrest have been appealed, the appellant has won. And, yet, the police continue as though there were no higher authority than themselves. As a lawyer specialized in obstructing justice has stated,

This broadly written law can be the subject of abuse by law enforcement. Even though the courts have made it clear that mere verbal criticism is not enough, police and municipal prosecutors still charge citizens with this offense for minor verbal acts. In cases of police brutality, this charge will often be filed in the hope that a citizen will take a quick plea, eliminating any ability to get compensation later.

In short, police routinely charge people with obstruction or resisting not merely to intimidate but also to give themselves negotiating leverage.

The future of CopWatch may well be a challenging one because it does not matter if the recording is legally performed in a public place; the police are likely to arrest you. It doesn’t ever matter if you are recording the police from your own property. On July 7, the InfoWars site reported,

In a video making a stir on You Tube, an Arkansas man looks on in horror as officers handcuff an innocuous looking woman, and then conduct a TSA-style search of her breasts and other body parts before releasing her. The cameraman filming police across the street from his garage yells “Nazis," continuing to warn the officers that they were violating the 4th Amendment.

Their response? According to the Infowars site, three police officers enter his property and demand his papers. “They then begin to discuss what they’re going to charge him with: ‘disorderly conduct.’ No, let’s charge him with ‘obstruction of justice.’ The officers then decide to go with ‘racial slur.’ They then grab the camera away from the man and clap on the cuffs. The camera is then turned off.”

Whether you in a public street or on your own property, whether you are peaceful or not, the mere questioning of a police officer can get you arrested. They can charge you with “disorderly conduct” for standing alone in your own driveway. They can charge you with “resisting arrest” if you ask what the charges are. If you gesture, they can interpret that as the beginning of an attack and charge you with “battery on an officer.” If you refuse to assist them in sexually frisking a neighbor, they can charge you with “obstruction of justice.”

Police discretion means a police state.
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Wendy McElroy is the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998). She actively manages two websites: http://www.ifeminists.com and http://www.wendymcelroy.com. For additional articles on current events by Ms. McElroy, please visit the Commentary section of our website.