For Flock Camera Vandals, Jury Nullification is an Option

In recent months, the American public has been abuzz with another dystopian topic: Flock Cameras. Advanced License Plate Readers or ALPRs have been popping up by the thousands around the country, snapping every plate that goes by and dropping it into a database that can be searched on a whim by law enforcement. But unlike many other dystopian tools of mass surveillance and suppression (the Patriot Act and FISA Section 702, NSA spying, no-knock raids and the gross militarization of local police, Constitution-free zones, etc.), Americans do not seem ready to just let this roll on by, especially as officers are arresting the wrong people or are being arrested themselves for grossly abusing their access to Flock databases. Instead, people are taking the issue right to their local and state governments, and they don’t seem to be letting off the gas.

As public concern and distrust have soared, we have seen in recent months “vandals” descending on these cameras like angels in the night and dismantling them, which has led to a number of arrests. But while those who have been charged linger through the justice system, many cities have read the writing on the wall: we don’t want to live in a panopticon.

Many local authorities have begun the process of removing flock cameras from their communities. These moves should be heralded as a victory for civil liberties and community action. When the government oversteps (too many examples to list), it often only takes a concerted effort of local citizens who refuse to just go along to get along. And more often, as we are seeing in town hall meetings and legislatures, it can be done peacefully and even with a little bit of humor.

But what is to become of those vandals/angels who have been charged with crimes ranging from cutting down cameras, damaging or destroying them, and even shooting them? It turns out that the People have more than one way to be heard on a specific issue. There are town halls and legislatures, which we have seen already. There is the ballot box, though I am personally less than optimistic about that option. There are demonstrations and protests. But the final option, when an individual and the state have finally clashed in a seemingly irreversible manner, is the jury box.

Jury nullification, or conscientious acquittal, is a long-standing tradition of American and English law. Looking at the history of our justice system, we can trace it back to William Penn, prior to his founding of Pennsylvania. In 1670, William Penn and William Mead were charged with unlawful assembly and disturbance of the peace after Penn gave a public sermon to a group of Quakers. During the trial, Penn spoke directly to the jury, reminding them of what it would mean for their own rights to convict them.

The presiding judge demanded that the jury find Penn and Mead guilty, but they refused and returned a verdict of not guilty. Subsequently, the judge jailed the jury and held them without food or water, until they changed their verdict. Still, the jurors refused. The judge finally agreed to release them, but only after they paid a fine. One man, Edward Bushell, refused to pay and challenged his imprisonment. The court ruled for Bushell, finding that jurors cannot be punished for the verdict, as their judgment is based on both their review of the facts and their conscience.

In America, jury nullification has been invoked at many stark times during our history. In 1735, John Peter Zenger was put on trial for seditious libel after printing a publication that truthfully criticized Governor William Cosby. Zenger’s lawyer, Andrew Hamilton, appealed not to the law but the jury’s understanding that to convict a man for speaking the truth would be an attack on their very own liberty. Zenger was found not guilty.

During the colonial era under the Navigation Acts, prosecutors frequently struggled to gain convictions against accused smugglers. Leading up to the Civil War, Northern abolitionists were frequently charged with violating the Fugitive Slave Act by hiding, providing aid, resisting those who came to reclaim escaped slaves, and even violently storming a courthouse to free an escaped slave. Despite immense pressure to convict, if for no other reason than to appease the South, juries frequently acquitted the accused to send a message directly to the federal government: your laws have no power here.

Today, jury nullification has become a bit of a bumper sticker in libertarian and civil liberty spheres, with the words “Google Jury Nullification” scrawled on shirts, stickers, cards, and even a courthouse bathroom stall. Judges tightly control their courtrooms, ensuring that the topic is not brought up during the proceedings to ensure an impartial jury. But the power remains solely within a jury’s hands, and it still makes the occasional appearance.

All the activism that has poured out over the latest tool of mass surveillance has warmed my heart and soul. Seeing the public taking a stand over an issue of the utmost importance, while being downplayed by the authorities, should be heralded as the beginning of a new age for civil liberties. But only if the momentum is maintained.

I cannot definitively say what a juror should do on these Flock camera cases, though one grand jury has already spoken. Each juror must weigh their own conscience, genuinely engage in discussion over the facts and seek out reasonable doubt, if any, and ultimately consider what message they wish to send the state. Perhaps, to some communities, acquittal is a bridge too far for persons destroying property. For some, acquittal may be the exact message the state needs to hear. Maybe the individual facts are the deciding factor (cutting a camera down versus shooting one out). I cannot say, though I know exactly how I would vote. All I can do is remind everyone, in every jurisdiction, that when you serve on a jury, never forget that you possess the greatest power found in a democracy: to directly tell the government that its laws are powerless when they are an affront to our moral, ethical, and legal conscience.