Mimesis Law
24 April 2019

Watching The Watchmen Still Gets You Arrested (Update)

October 3, 2016 (Fault Lines) — It’s often said the path to Perdition is paved with good intentions. For Arkansas representative John Walker, the road to the local jail was paved with good intentions and video of a traffic stop. A state legislator advocating for civilian protection when recording police encounters learned the hard way just how little cops like their actions preserved on Memorex.

“I’m just making sure they don’t kill you,” Walker told the man who had been pulled over according to the police report.

Representative Walker, a vital advocate for HB 1669 which became Arkansas law last year, saw a traffic stop taking place on September 26th. Walker and his colleague, civil rights lawyer Omavi Kushukuru, filmed Officers Jason Roberts and Jeff Thompson fitting Cedric Bell with metal bracelets. This act drew Bell’s curiosity. It also captured Officer Roberts and Thompson’s attention as well.

Officer J Roberts and I attempted to speak with Walker, but he just kept talking over us in an antagonistic and provocative manner.

The police report doesn’t mention what “antagonistic and provocative” comments Walker made, but it’s clear the two felt their dialogue with Walker and Kushukuru wasn’t productive. They left to assist two other officers with Cedric Bell’s arrest, as well as that of passenger Gary Gregory. Representative Walker and Kushukuru moved closer and continued recording. This crossed the line of acceptable citizen behavior for Officer Roberts, who could not let the continued filming stand absent some form of police intervention.

Officer J. Roberts told Kushukuru and Walker to stop and not come into the area of the traffic stop.  Officer Roberts repeated the command several times.  Kushukuru and Walker ignored these commands.

Walker and Kushukuru either didn’t understand an officer’s innate need to see complete and total compliance with their commands, or didn’t care. This meant someone had to go to jail. When Kushukuru placed himself between Bell’s car and the patrol vehicle, he was arrested. Walker didn’t fare much better, even though he kept recording from the sidewalk.

Thompson ordered Representative Walker to leave the area “several times” or be arrested. Walker’s response of “arrest me” was good enough for Thompson, who cooked up charges of “Obstruction of Governmental Relations” for Walker and Kushukuru. The two got a ride to the Little Rock jail.

Charges were dropped against Walker, but Kushukuru still has a court date for his role in the stop. That’s probably because he wasn’t actually involved in recording the officers’ activity, and the act of placing himself between Cedric Bell’s car and Officer Thompson’s patrol vehicle could be viewed as “knowingly” “[obstructing], [hindering], or [impairing]” a traffic stop.

If Walker attempts to sue any of the officers for arresting him while recording their activities, his suit stands on shaky grounds as well. The current law Representative Walker helped push through in Arkansas places an exception on the books for someone who “presents a risk to the physical safety of anyone present, not including the person making the recording.”

There’s also an exception if the recording “constitutes an element of a criminal offense.” All it took were Representative Walker’s mean nasty words, continued approach towards the lawful traffic stop despite lawful commands to stay away from the scene, and the final provocation of “arrest me.” Should Representative Walker file suit against Officers Jason Roberts and Jeff Thompson over a violation of the brand spanking new recording law, he’d have to get past allegations of hindering lawful police activity.

That shouldn’t be too hard, given that Little Rock’s Chief of Police issued a written apology Tuesday to Representative Walker. Chief Buckner’s conclusion Walker “should not have been arrested” arrived with a prompt assurance charges would be dismissed, the opening of an Internal Affairs investigation, and talk of reviewing the incident “for training purposes.” That the $1,000 bond Walker posted was reimbursed is icing on the settlement cake.

The interesting question for a trier of fact going forward with regard to any suit Walker files is whether the Chief’s apology harms the litigation position of the Little Rock’s police force, since a violation of Arkansas’ Public Recording Law waives sovereign immunity for the officers and allows them to be sued in their official capacity.

Lost in the shuffle, though, is Walker’s “employee”, Omavi Kushukuru. Without a camera of his own, and no credits to his name other than “civil rights attorney” and “Representative Walker’s employee,” Kushukuru will face a criminal charge that could see him sanctioned by the Arkansas Office of Professional Conduct. The mere act of assisting his boss in filming Cedric Bell’s traffic stop could be a stumbling block in the twenty-nine-year-old attorney’s career, unless the cops get wise and decide this fight might not worth pursuing. Kushukuru’s stance, as principled as it may be, might cost him more than his boss will ever face.

There’s one ominous takeaway from this story, and it’s a widely repeated maxim at Fault Lines: “You can beat the rap, but you can’t beat the ride.” Even those we elect to govern us are subject to the First Rule of Policing. Those who pass laws strengthening our rights will find themselves booked into jail for following laws they help pass, because a cop says so. In our world, the new normal is no one watches the watchmen, unless the watchmen feel like it, and to hell with any laws that say otherwise.

UPDATE: According to Arkansas Matters, Prosecuting Attorney Larry Jegley’s office filed a notice in district court on September 29 stating he would not seek charges against either Walker or Kushukuru.  It seems cooler heads prevailed for now.

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