By Ariel Barkhurst
A Davie woman spent one night
in jail after she used a cellphone to record a Broward Sheriff's deputy during
a traffic stop.
The minute Brandy Berning, 33,
told Lt. William O'Brien she was recording the conversation they had when he
pulled her over for driving in the HOV lane at the wrong time, O'Brien responds
on Berning's audio with:
"I have to tell you, you
just committed a felony."
"All I knew was I was
trying to keep my phone," Berning said. "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."
Berning spent the night in jail
in March but was never charged. Berning now has two attorneys and says she gave
BSO notice that she plans to sue the agency.
A BSO spokeswoman said the
agency doesn't comment on pending litigation.
Whether Berning had a right to
record O'Brien is not clear under state law, said Barry Butin, co-legal panel
chairman of the Broward American Civil Liberties Union. But because it is clear
that third parties can record video of police performing their duties, Berning
"has a good chance of the law being on her side," Butin said.
"Clearly, it was an
overreaction … And look at the totality of the circumstances," Butin said.
"She shouldn't have had to spend the night in jail, that's for sure."
The case could be
precedent-setting, Butin said.
Berning had a right to record
O'Brien because the law has shown that police performing their duties have no
"reasonable expectation of privacy," said Mike Glasser, one of
Berning's attorneys.
Florida is a two-consent state
when it comes to recordings, meaning both parties are required to know about
the recording. Berning recorded about 15 seconds of her conversation with
O'Brien before informing him she was doing it.
Another BSO deputy in 2011
allegedly attacked a woman and stole her phone after he realized she was recording
their traffic stop. Paul Pletcher, accused of burglary, battery, criminal
mischief and petty theft, has a hearing on Friday that might set a date for his
trial.
Pletcher allegedly took the
phone and drove away while throwing it in pieces out the window. BSO recovered
the phone and found a 22-second recording of an argument and what sounds like a
struggle.
Berning said she decided to
find a lawyer and sue because another sheriff's deputy, who she didn't want to
identify, spoke to her while she was in jail and suggested she sue because what
O'Brien did was wrong.
"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," said Eric Rudenberg, Berning's other attorney.
"The cops should be there
to protect us and to serve justice when it's needed," Berning said,
"but not step over those boundaries and take advantage."
