Had every cell phone at the scene been successfully confiscated, it is possible that officer Mehserle would not be in the sort of trouble that he is in right now. People like Karina Vargas did the general public a favor by defying the police, fleeing from them and posting the evidence of this crime for the public to view before it could be suppressed by the police at the scene of the crime.
Seconds after BART police officer Johannes Mehserle shot and killed Oscar Grant, police immediately began confiscating cell phones containing videos that have yet to see the light of day.
In fact, the only videos that have been seen by the public were filmed by people who managed to leave the scene before police confronted them.
In one instance, police chased after Karina Vargas after she stepped on the train, banging on the window after the doors closed and demanding her to turn over the camera. The train sped away with Vargas still holding her camera.
"Cops may be entitled to ask for people's names and addresses and may even go as far as subpoenaing the video tape, but as far as confiscating the camera on the spot, no," said Marc Randazza, A First Amendment attorney based out of Florida and a Photography is Not a Crime reader.
Law and order is not as simple as "the law says do this, so you obey it and then we'll have order." There can be no true rule of law and public order when private citizens witness what appears to be a crime committed by government employees and then dutifully hand over the evidence to them just because the law says so. No one can seriously claim that the police were merely trying to get evidence to use against their fellow officer, considering the fact that there were many officers who witnessed the act, and they could have just as easily asked the people who took the video to line up and provide their contact information for a subpoena for the video. Rather, their actions were clearly that of people trying to protect their own and suppress objective evidence of a crime.
Vargas' reaction was the appropriate one. The police have no moral right to demand that you turn over evidence to them of a crime when you have reason to believe that they intend to suppress it. No matter what the law empowers them to do to that end, it doesn't give them the moral right to do it.
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