Traffic-stop recording led to woman’s wrongful arrest, suit claims
Lt. William O’Brien of the Broward County Sheriff’s Department pulled over Brandy Berning, 33, last March for driving in the HOV lane at the wrong time. Berning pressed record on her cell phone as O’Brien made his way to her window, informing the officer that the conversation was being taped after they had been speaking for approximately 15 seconds.
“I have to tell you, you just committed a felony,” O’Brien replied.
The two then spent the next four minutes squabbling over the recording. O’Brien repeatedly tried to convince Berning to turn over her cell phone, warning that she would be arrested. Berning refused to give up the phone and insisted that she had committed no such crime.
Berning told the Florida Sun-Sentinel that at one point during the disagreement, O’Brien grabbed and twisted her wrist, spraining it. He then forced his way into the car’s passenger seat and tried to drag Berning from the vehicle.
“All I knew was I was trying to keep my phone,” Berning now says. “I knew I couldn’t give him my phone, because I didn’t know why he was acting the way he was if he didn’t plan on doing something wrong.”
She was eventually apprehended and spent one night in jail. Berning was released the next day without being charged or given an explanation. She has now informed the Broward Sheriff’s Office that she plans to sue over the matter.
Barry Butin, co-legal chairman of the Broward American Civil Liberties Union, said Berning “has a good chance of the law being on her side.” The exact legal definition is murky.
Florida law allows citizens to record a police officer performing their duties, though it is also a “two-consent state” – meaning both parties must agree to be recorded. Whether the first 15 seconds was legally recorded remains to be seen, but Butin says the case could set a major precedent.
“Clearly it was an overreaction, and look at the totality of the circumstances,” he told the Sun-Sentinel. “She shouldn’t have to spend the night in jail, that’s for sure.”
Berning told reporters that she filed suit because another officer, whom she refused to name, advised her while she was in jail that her incarceration might be illegal. Eric Rudenberg, her attorney, said the police stepped over the line.
“Finding they’re liable for what they did, using what we think was excessive force just because she was recording him on her phone, that would drive home the point that police officers can’t do this,” he said.
Incidents like this are not infrequent. Earlier this week, a New York City police officer was accused of harassing and then wrongfully arresting a man who was filming the officer’s partner arresting someone else.
Activist Shawn Thomas claimed he was standing 30-feet away from the police when they were questioning a man, yet one of the officers can be seen on the video pulling out his own phone-camera and approaching Thomas. The officer in question is shown on video standing directly in front of Thomas as the two argue back and forth. Another amateur videographer then recorded the policeman with his knee in Thomas’ back as the activist was placed under arrest.