DAVIE, Fla. – “Get off of me! You are breaking the law!” shouts a South Florida woman as a Broward County Sheriff’s deputy enters her car and drags her out, all because she was recording her traffic stop on Interstate 95.
Now, the police agency is facing serious legal action for alleged battery, false arrest and false imprisonment.
The saga of single mother Brandy Berning began last March when she was driving alone in the HOV carpool lane, which is designed for vehicles carrying more than one passenger during rush hour.
She was pulled over by Broward Sheriff’s Lt. William O’Brien, who told Berning about her traffic infraction. That’s when she then informed him she was recording audio of their conversation on her cell phone.
“Oh, I forgot to tell you I was recording our conversation,” Berning said on the recording.
“I’m sorry?” asked the deputy.
“I have to tell you I forgot to tell you I was recording our conversation,” she repeated.
“OK, well I have to tell you, you just committed a felony,” responded O’Brien. “Give me your phone.”
Click below to hear the entire recorded conversation:
When Berning steadfastly refused to hand the officer her phone, the rhetoric escalated.
“I’m allowed to record our conversation!” exclaimed Berning. “I know my rights.”
“I’m gonna tell you one more time, you are committing a felony, hand me your phone,” said the officer.
“Get out of my car,” responded Berning, as the deputy entered the driver’s side of her vehicle.
“I know the law better than you, believe me,” pressed the lieutenant.
“No. I will go to court. I’m not giving you my phone,” Berning maintained.
“You’re gonna end up in jail if you don’t hand me that phone – tonight!” O’Brien warned. “I am giving you a lawful order to hand me that phone.”
Berning: “I told you I was recording the conversation.”
Lt. O’Brien: “You did not! Hand me the phone.”
Berning: “I just told you.”
Lt. O’Brien: “I’m getting the phone.”
Berning: “You’re not getting my phone.”
Lt. O’Brien: “Yes, I am.”
Berning: “No you’re not.”
Lt. O’Brien: “Yes I am.”
That’s when a scuffle began as the officer grabbed Berning in an effort to remove her from the vehicle.
“Get off of me! You are breaking the law right now!” Berning repeated numerous times. “Get out of my car! I didn’t do anything wrong.”
“You are under arrest,” the officer informed her.
As she was being taken into custody, she informed O’Brien, “You’ve injured me and everything. You are in trouble.”
“OK, we’ll see,” the deputy responded.
Berning was initially charged with traffic violations and resisting arrest, but interestingly, she was not charged with illegally recording the pair’s conversation.
She spent one night in jail, but all charges were eventually dropped.
In the aftermath of the arrest, Berning told her story to WPLG-TV, the ABC affiliate in South Florida.
“At least one of [the backup officers] had their gun out. They dragged me out by my arm,” she explained. “I’m just being dragged on the ground and then they throw me onto the cop car.”
She was most upset about the officer “touching me, trying to take my personal belongings from me, trying to put me in jail for something so small.”
She told the station she suffered numerous injuries as a result of the scuffle.
“I had a bruise on my cheek, and my leg got cut. I have a scar on my leg, three large wound scrapes down my leg, and there was a rock lodged in my leg. And he had sprained my wrist.”
Click below to see WPLG-TV’s coverage of the case:
Berning’s lawyers have now informed the sheriff’s office of their intent to file suit.
“There was a battery that occurred. False arrest. False imprisonment,” said attorney Eric Rudenberg.’
“[The officer] shouldn’t have had any concern about what she was doing with her cell phone as long as it wasn’t impeding his ability to write the citation, give her the citation and send her on her way,” added attorney Mike Glasser.
He told the South Florida Sun-Sentinel that Berning had a right to record O’Brien because the law has shown that police performing their duties have no “reasonable expectation of privacy.”
Florida is a two-consent state when it comes to recordings, meaning both parties are required to know they’re being recorded.
Berning recorded about 15 seconds of her discussion with the officer before informing him of her action.
This incident comes on the heels of a similar confrontation with a Broward deputy in 2011.
Officer Paul Pletcher faces criminal charges for allegedly attacking a woman and stealing her phone from her when he realized she was recording their traffic stop.
Pletcher is accused of burglary, battery, criminal mischief and petty theft, and a hearing is set for this Friday that could set a date for his trial.
The Sun-Sentinel reports: “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 recoding of an argument and what sounds like a struggle.”
The First Amendment to the U.S. Constitution allows the legal recording of police activity, as long as it doesn’t interfere with the officers’ duties.
Berning told the Sun-Sentinel she decided to take legal action when “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 her attorney Rudenberg.
“The cops should be there to protect us and to serve justice when it’s needed,” she said, “but not step over those boundaries and take advantage.”
The Broward Sheriffs Office has made no comment regarding the Berning case, but it did send WPLG an internal bulletin from July informing deputies that citizens can legally record them.