An open carry protester released footage over the weekend of what he says is an HPD officer attempting to erase footage of the interaction he recorded with his cell phone camera. The only problem? The officer couldn't quite figure out how.
The four-minute video opens with an explanation of what is happening -- the man is apparently standing on the corner of Bay Area and Reseda with a video camera, a copy of the Constitution and an AR-15 -- when two officers drive up in marked vehicles and ask him what's up.
The HPD officers can be heard telling him he's scaring people to death, and ask him to move up toward the driveway. One of the officers asks him for ID, to which the rifle-toting man responds that he just doesn't have ID on him. The guy will, however, tell them who he is.
The officer tells the demonstrator that he has no way of knowing whether he's a felon with a gun, which is obviously a big no-no, but the dude continues to play hard-to-get with his ID. The officer then asks him to take the gun off, and the man responds that he "won't consent" to that. At that point, the demonstrator is told he's under arrest for failure to ID, and the rifle is confiscated.
This back and forth continues until the officer threatens to erase the video the protester is recording.
The open carry guy then demands to talk to a damned sheriff or sergeant or something, claiming his rights are being violated, and the other officer is seen on camera for a split second as the two officers examine the phone to (presumably) erase the video.
The video, obviously, never gets deleted. Still, the footage begs the question of whether a police officer has a legal right to confiscate a civilian's camera and actually delete footage.
We asked Amin Alehashem, the regional director and staff attorney for the Texas Civil Rights Project in Houston.
According to Alehashem, the U.S. Supreme Court issued an opinion in Riley v. California this past June that ruled police may not search the cell phones of criminal suspects upon arrest without a warrant. Alehashem called the ruling "a sweeping endorsement for privacy rights."
"If the gentleman in the video was doing nothing wrong, then it would have absolutely been a violation of the 4th Amendment to search his cell phone or recording device for the video and then delete it," Amin said.
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So no, police can't just search your cell phone or erase stuff all willy-nilly. But what about threatening to do so? Well, that's a bit less clear-cut, says Alehashem.
"The mere threat of deletion, however, is trickier," he says. "Police are given a lot of leeway in what they say, and I doubt there'd be any constitutional violation from a threat alone. A complaint to internal affairs might be the best remedy in that case, though I doubt any major penalties would be imposed on the officer. "
So there you have it, folks. As a general rule, it's probably not a good idea to be protesting with a gun on the corner of a Houston street, no matter what your open-carry beef, and especially if you're going to refuse to identify yourself.
But if you are protesting, a cop can't just erase yo' shit just because he wants to. Threatening, or not managing to complete said threat because the cop is far from tech-savvy? Well, that's another story completely.