Regulatory and administrative research

“It is dangerous to be right in matters on which the established authorities are wrong.” — Voltaire

There is something almost quaint about the way Voltaire phrased it. Dangerous to be right. As though danger arrives only after some great revelation, after a dissident publishes a manifesto, raises an army of resistance, or exposes a conspiracy vast enough to frighten a government.

My experience was considerably less romantic.

I exercised my First Amendment right to document the conduct of a public official.

I simply pressed record.

For that, the evidence was violently pried from my hands, I was arrested, and six years later I am still being persecuted while the evidence capable of vindicating me remains in the custody and control of the man who's conduct I recorded.

That gives Voltaire’s observation an entirely different texture.

The man I recorded was the local under-sheriff. Less than two weeks later, county election would elevate him to sheriff. At precisely the moment the public chose to elevate him to greater power, I happened to create evidence of how he was already abusing such power.

That was the dangerous part.  Documentation that thrust violence and governmental  interference upon me in an instant.

I simply did what generations of Americans have been told responsible citizens are supposed to do when government power is exceeded in front of them: observe, preserve, question, and refuse to rely solely upon the government’s later description of its own conduct.

There is a reason the camera has become such an uncomfortable object in the history of modern policing. Cameras have no rank structure. Cameras do not salute. Cameras do not understand elections, courthouse friendships, or whose name carries weight in a small county. Cameras do not reflexively defer to the person wearing the badge.

Cameras simply record. And apparently in Oklahoma, that is intolerable.

The recording was not voluntarily surrendered. It was violently taken from me and I was immediately arrested.

Since that moment, the State has not merely challenge my account of what happened. The State acquired control over the evidence capable of settling the dispute, yet refused to admit to having that control and custody for over 2 years.  After which, inspection of the device revealed a very convenient error upon attempting to power it on:  

"Moisture detected. Unplug your charger to prevent damage to your phone."

How extraordinarily convenient for everyone except the person being persecuted.

That may be the most surreal part of living inside this case for six years: I am expected to defend myself against an accusation while the government retains custody and control of the very evidence that exonerates me.

That moisture error should not have ended the inquiry. We live in an age of digital forensics precisely because damage does not necessarily mean destroyed. Governments routinely recover deleted files, reconstruct damaged storage, image failing devices, extract remnants of data, rebuild timelines from metadata, and deploy forensic tools that ordinary citizens could never hope to maintain themselves. When the State needs digital evidence to convict and separate one of us from their liberty, remarkably sophisticated things become possible very quickly. 

The State has those capabilities readily at their disposal. Trained investigators. Forensic laboratories. Recovery tools. Imaging hardware. Specialists. Money. Time. Subpoena power. Technical resources backed by the public treasury.

And still, the evidence that would exonerate me remains unrecovered. Not because I misplaced it. Not because I refused to it.

The State took it from me. The State keeps it beyond my custody and control. And despite possessing forensic capabilities far beyond my own, the State has not pursued a single step to recover the evidence, compromised while in its custody.

There is a breathtaking circularity to being forced to defend yourself from the government while the government controls the evidence with which you would defend yourself from the government. That is not some theoretical discussion about due process. That is what institutional power feels like when you are standing beneath it.

I had a phone. They had badges and abused their authority to seize it.

I had a constitutional right to observe and document government conduct. They had handcuffs.

I had evidence. They took custody of the evidence and then they took custody of me.

Six years later, that imbalance remains essentially unchanged. This is why Voltaire resonates with me in a way I wish it did not. Being right should not be inherently dangerous. Most of the time, being right is boring. You correct the date. You settle the argument. You produce the receipt and everyone moves on.

Being right becomes dangerous when the evidence contradicts someone with enough institutional power to decide what happens to both you and the evidence. Then the ordinary relationship between proof and authority becomes inverted.

The evidence no longer disciplines power. Power takes custody of the evidence.

The witness becomes the defendant.

The official whose misconduct was documented continues forward -- promoted -- while the person who documented endures a six-year forced education in warrants, hearings, continuances, motions, prosecutors, judges, and the extraordinary elasticity of the word justice and discrection.

There is something deeply perverse about that reversal.

The original question should have been painfully simple: What did the undersheriff do?

Instead, the government manufactured an entirely different question: What can we accuse the person who recorded him of doing?

Once that happed, attention moved away from the public official and toward the citizen. My actions are dissected. My motivations become "suspicious". My resistance becomes "hostility". My insistence upon the evidence becomes "obsession".  My unwillingness to accept contradiction becomes "proof" that that I am a "disgruntled" defendant.

Meanwhile, the original conduct disappears behind the prosecution built around the person who witnessed it.

An ancient trick of power: when the witness becomes inconvenient, put the witness on trial.

There is no need to burn the book if you can prosecute the author. No need to destroy the allegation if you can discredit the person making it. And apparently there is no need to rebut a recording if you control the device on which the recording resides.

That is what makes this particular experience so darkly absurd. The State has continued six years and counting to maintain wild accusations about me while showing remarkably little urgency about recovering the evidence capable of resolving the case. Think about what that means.

If my recording supported the prosecution, does anyone seriously imagine that digital-forensic recovery would be treated as optional?

If the seized device contained evidence necessary to convict me, would “water damage detected” have ended inquiry?

Would investigators have simply shrugged? Would the government decide sophisticated recovery techniques were too much trouble? I doubt anyone familiar with modern criminal investigation needs that question answered for them.

Yet when the evidence points the other direction, curiosity becomes strangely elusive. That disparity exposes the difference between a justice system committed to discovering truth and a prosecution committed to preserving itself.

Justice demands exculpatory evidence with exactly the same intensity, if not more, than incriminating evidence. The power to prosecute and deprive another human of their freedom carries an obligation to be certain that the machinery of government has not been turned against the wrong person.  Exculpatory evidence should not be treated like an obstacle.

Procedure is punishment, because six years is not an abstraction. Six years is a substantial chunk of one's life.

Court files convert time into sterile entries. Hearings, orders, motions, continuances... But human beings experience those years differently. Children grow. Families change. Careers stall. Money disappears. Health changes. Relationships absorb pressures they were never meant to carry. Entire chapters of life become organized around the next filing, the next date on a docket, the next denial.

The State can call it a pending case. The prosecutor goes home every night to their families, win or lose.  The accused living inside the invisible pretrial prison experiences something closer to suspended animation.  The inability to plan life beyond the next trial date, because even innocence cannot guarantee freedom and justice will prevail.

We tell people to document misconduct because documentation is supposed to protect them. Record everything. Keep copies. Save your messages. Preserve the evidence.

Sound advice. Until the subject of your documentation possesses the institutional machinery necessary to take the documentation away. Then you discover something civics textbooks omit. Rights are easy to celebrate until somebody powerful is inconvenienced by their exercise.

The First Amendment sounds majestic engraved into marble. It becomes considerably messier when a citizen uses it to document police misconduct days before that cop becomes sheriff.

Government transparency is universally admired until somebody actually produces a record the government would rather  bury. Accountability is a sacred "American value" right up until a badge needs to be held accountable. Then suddenly everyone becomes terribly concerned about procedure.

What I have endured taught me that tyranny rarely announces itself with horns and marching boots.  The look is much more bureaucratic, and oddly prefers khakis.

The last six years of my life have embodied Voltaire’s quote, absent the poetry.