A South Florida woman who used a cellphone to record a Broward County sheriff’s deputy’s routine traffic stop is suing after she spent the night in jail and suffered a wrenched wrist in the encounter.
Berning spoke with Lt. William O’Brien for about 15 seconds before telling him she was recording the conversation, according to the South Florida Sun Sentinel.
That’s when things got ugly.
According to the news reports, O’Brien demanded Berning hand over the phone, claiming she’d committed a felony by recording him without his consent. When she refused, O’Brien got into Berning’s vehicle from the passenger side and tried to take the phone by force.
Berning told a local ABC affiliate she suffered a sprained wrist, bruised cheek and cuts to her leg during the ensuing struggle.
“All I knew was I was trying to keep my phone,” Berning told the Sun Sentinel. “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.”
Under Florida law, it is illegal to record a conversation unless both parties agree. But courts have ruled that official police actions are allowed to be recorded because there is no expectation of privacy in their public interactions.
“He shouldn’t have had any concern about what she was doing with her cellphone,” Berning’s attorney, Mike Glasser, told Channel 10 News. “As long as it wasn’t impeding his ability to write her citation, give her the citation and send her on her way.”
O’Brien initially charged Berning with traffic violations and resisting arrest, but all charges were dropped after she was released from jail. She was never charged with making an unlawful recording.
The sheriff’s office declined the Sun Sentinel’s requests for comment.
Barry Butin, co-legal panel chairman of the Broward County American Civil Liberties Union, told the Sun Sentinel that Berning “has a good chance of the law being on her side” because third parties are allowed to record police actions.
“Clearly, it was an over-reaction,” Butin said.
Watch Channel 10’s report here and see if you agree.
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