There are some pretty perverse cases detailed in this article - for example, the man charged with a felony for having the audacity to put his own private property under surveillance - but ultimately what this points to is that such wiretapping laws are in serious need of reform. Unfortunately it doesn't sound like there's much appetite for tackling the issue in the state legislatures, but hopefully that could be resolved by generating sufficient public attention and outrage as to outweigh the self-interest of the police organizations.http://reason.com/archives/2010/12/07/t ... on-cameras
The War on Cameras
It has never been easier—or more dangerous—to record the police.
Radley Balko from the January 2011 issue
Michael Allison, a 41-year-old backyard mechanic from southeastern Illinois, faces up to 75 years in prison for an act most people don’t realize is a crime: recording public officials.
Allison lives in Bridgeport, Illinois, and often spends time at his mother’s house in Robinson, one county to the north. Both towns have abandoned property (or “eyesore”) ordinances prohibiting the parking of inoperable or unregistered vehicles on private property except in enclosed garages. These rules place a substantial burden on hobbyists like Allison; to obey the law he must either build a garage—which he says isn’t an option, given his property and his income—or register, plate, and pay insurance on every car he fixes up, even though he never drives them on public roads. So Allison kept working on his cars, and the city of Bridgeport kept impounding them: in 2001, 2003, and 2005.
In 2007 Allison filed a lawsuit against the city, alleging the law was a violation of his civil rights and a scheme to collect revenue through impound fees. He then resumed tinkering with unregistered vehicles in his mother’s driveway in Robinson. By Allison’s account, police officers in Robinson began harassing him with threats of fines or arrest for violating that town’s ordinance, though Allison alleges the harassment was personal—retaliation for his lawsuit back in Bridgeport. That’s when he began recording his conversations with cops.
In late 2008, Allison went to the Robinson police station, tape recorder in hand, and asked the chief to tell his officers either to name the law he was violating and issue him a citation or leave him alone. Not long after, two Robinson police officers showed up at his mother’s property and, while he was working on his mother’s car in her driveway, wrote Allison a citation for violating the eyesore ordinance. Allison openly recorded the conversation with a digital recorder. A court date was scheduled for January 2010.
The day before the trial, Allison went to the Crawford County Courthouse to request a court reporter for the proceedings. “If they were going to convict me of this bogus ordinance violation, I wanted to be sure there was a record of it for my lawsuit,” he says. As he spoke with Crawford County Circuit Court Clerk Angela Reinoehl, Allison showed her his digital recorder, although he says in this instance he wasn’t recording. “I held out the tape recorder to make it clear that if they weren’t going to make a record of this ridiculous farce, I was going to make sure I had one,” he says.
Reinoehl denied the request, but Allison’s promise to record the proceedings apparently came through loud and clear. Just after he walked through the courthouse door the next day, Allison says Crawford County Circuit Court Judge Kimbara Harrell asked him whether he had a tape recorder in his pocket. He said yes. Harrell then asked him if it was turned on. Allison said it was. Harrell then informed the defendant that he was in violation of the Illinois wiretapping law, which makes it a Class 1 felony to record someone without his consent. “You violated my right to privacy,” the judge said.
Allison responded that he had no idea it was illegal to record public officials during the course of their work, that there was no sign or notice barring tape recorders in the courtroom, and that he brought one only because his request for a court reporter had been denied. No matter: After Harrell found him guilty of violating the car ordinance, Allison, who had no prior criminal record, was hit with five counts of wiretapping, each punishable by four to 15 years in prison. Harrell threw him in jail, setting bail at $35,000.
Allison’s predicament is an extreme example of a growing and disturbing trend. As citizens increase their scrutiny of law enforcement officials through technologies such as cell phones, miniature cameras, and devices that wirelessly connect to video-sharing sites such as YouTube and LiveLeak, the cops are increasingly fighting back with force and even jail time—and not just in Illinois. Police across the country are using decades-old wiretapping statutes that did not anticipate iPhones or Droids, combined with broadly written laws against obstructing or interfering with law enforcement, to arrest people who point microphones or video cameras at them. Even in the wake of gross injustices, state legislatures have largely neglected the issue. Meanwhile, technology is enabling the kind of widely distributed citizen documentation that until recently only spy novelists dreamed of. The result is a legal mess of outdated, loosely interpreted statutes and piecemeal court opinions that leave both cops and citizens unsure of when recording becomes a crime.
‘It Just Depends on the Circumstances’
A national debate over recording on-duty police officers erupted in 2010 after two high-profile incidents in Maryland.
The first was in March, shortly after the University of Maryland men’s basketball team beat Duke. Among the Maryland students who spilled onto the College Park campus to celebrate were Jack McKenna and Benjamin Donat. As the two capered down the street with other Terps fans, they were stopped by two officers from the Prince George’s County Police Department on horseback. Seconds later, three additional riot police confronted McKenna and Donat on foot. McKenna was soon arrested and charged with assault and resisting arrest.
According to police reports, McKenna confronted the officers, verbally provoked them, assaulted them, and then fought when they tried to detain him. But several students at the scene captured the incident on their cell phone cameras. In those videos, later posted on the Internet, McKenna appears to do nothing to provoke the police. Instead, the riot cops stop McKenna, throw him up against a wall, and begin beating him with their batons. Attorney Christopher Griffiths, who is representing both students, says they suffered cuts, contusions, and concussions. After the videos appeared on the Internet, Prince George’s County suspended four of the officers, and the charges against McKenna were dropped.
The second incident came on April 13, about the same time McKenna’s case began to make national news. Maryland State Trooper David Uhler pulled over motorcyclist Anthony Graber for speeding and reckless driving. Graber had a video camera mounted to his helmet that was recording at the time of the stop. Uhler, dressed in street clothes, emerged from his unmarked car with gun drawn, yelling. Graber was given only a traffic ticket, but he was miffed at Uhler’s behavior. So he posted the video on YouTube. Days later, Maryland State Police conducted an early-morning raid on Graber’s home, held Graber and his parents for 90 minutes, confiscated computer equipment, arrested him, and took him to jail.
Graber was charged with two felonies. The first was violating Maryland’s wiretapping law by recording Uhler without the trooper’s consent. The second was “possession of an intercept device,” a provision in the same law that was intended for bugs and wiretaps but in this case referred to Graber’s video camera, a device that is perfectly legal to own and use in just about any other context. Thanks to legislation written to prevent the surreptitious interception of communications, Graber faced up to 16 years in prison for recording a cop during a public traffic stop.
Wiretapping statutes apply to audio recordings, with or without video. Maryland is one of 12 states with a wiretapping law that requires consent from all parties to a conversation for someone to legally record it. But in 10 of those 12 states, including Maryland, the statute says a violation occurs only when the offended party has a reasonable expectation that the conversation is private. This privacy provision prevents people who record public meetings or inadvertently pick up conversations while shooting video in public from accidentally committing felonies. Civil liberties advocates argue that on-duty police officers, like people attending city council meetings or walking down a public street, do not have a reasonable expectation of privacy. For Graber to be convicted under Maryland’s wiretapping law, a prosecutor would have to argue that Uhler—a police officer who had pulled over a motorist, drawn his gun, and yelled at the guy on the side of a busy highway—had a reasonable expectation that the encounter would remain private.
“It’s absurd,” says David Rocah, who represented Graber for the Maryland chapter of the American Civil Liberties Union (ACLU). “No court in the country has found that police officers have privacy rights in a situation like that.” Rocah points to a 2000 opinion by then–Maryland Attorney General Joseph Curran Jr. about the installation of dashboard cameras in police cruisers. In a footnote, the opinion declared that motorists who are pulled over obviously have no expectation of privacy; what they say during that stop can be used against them in court. “They’re arguing that when a police officer pulls you over in Maryland, the officer has a privacy expectation, but the motorist doesn’t,” Rocah says. “That’s just ridiculous.”
Harford County State’s Attorney Joseph Cassilly, who brought the charges against Graber, disagrees. “Those opinions are just the attorney general paying some lawyers to tell him what he already thinks,” Cassilly says. “I don’t have to agree with it.…The officer having his gun drawn or being on a public roadway has nothing to do with it. Neither does the fact that what Mr. Graber said during the stop could be used in court. That’s not the test. The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear.”
Cassilly maintains that the Graber case is substantially different from the McKenna incident in College Park. “In College Park you had lots of people around,” he says. “You had people screaming and shouting. The officers in that case had no reason to think the situation was private.”
In the ensuing weeks two more incidents involving citizens recording police made news in Maryland. In one, an officer making an arrest in the infield during the Preakness Stakes* horse race warned a cell phone camera operator recording the arrest, “It’s illegal to record anybody’s voice or anything else in the state of Maryland.” But he didn’t arrest the camera operator. Two months later, another woman in Maryland was arrested for recording police who had responded to a noise complaint at her apartment complex, but prosecutors declined to press charges.
Given the range of legal interpretations in these incidents that occurred within a few months of each other, it’s difficult to see how a Maryland resident who witnesses what he believes to be police misconduct could possibly know if recording it is a felony that could send him to prison. “I don’t have any hard and fast rule I can give you,” Cassilly says. “It depends on the circumstances, and if the officer in those circumstances had good reason to think he wouldn’t be recorded. Should a domestic violence victim have a camera shoved in her face and have her privacy violated because someone is following a police officer around with a camera? What if he’s collecting information from witnesses at a crime scene? I’m saying that not everything a police officer does on the job should be for public consumption.”
“That’s ridiculous,” Rocah replies. “Police officers have always retained the ability to secure a crime scene or to talk to witnesses privately. This is about the right to record their public actions in a way that doesn’t interfere.”
In general, Cassilly says, police actions in front of large crowds probably can be recorded without breaking the law, but privacy claims are stronger when few people are around. But this standard undermines the use of citizen video as a check against police misconduct. Police actions in front of large crowds will naturally have a lot of witnesses, a fact that not only deters misconduct but makes video evidence less important. But what if a police officer is harassing or intimidating someone when there aren’t many witnesses, such as during a traffic stop or on an empty street at night? Would it be a felony to record the interaction? “I’m not going to respond to any hypothetical scenarios,” Cassilly says. “It just depends on the circumstances.”
In July, after I spoke with Cassilly, the Maryland Attorney General’s Office responded to a state legislator’s inquiry by issuing an opinion that said “it’s unlikely that most interactions with police could be considered private, as some law enforcement agencies have interpreted the state’s wiretapping act.” But that opinion was only advisory, and Cassilly announced in a subsequent radio interview he had no intention of abiding by it.
Ignorance of the Law Is No Defense
University of Pennsylvania law professor Seth Kreimer, author of a 2010 paper in the Pennsylvania Law Review about the right to record, says such legal vagueness is a problem. Citing decisions by three federal appeals courts, Kreimer says the First Amendment includes the right to record public events. “The First Amendment doesn’t allow for unbridled discretion” by police, he says, “and it’s particularly concerned with clear rules when free speech rights are at stake. Even if there is a privacy interest here, people have to know when they’re going to be subject to prosecution.”
The ambiguity may be of dubious constitutionality, but it’s common. In Massachusetts, the only all-party-consent state aside from Illinois that does not have an expectation-of-privacy provision in its wiretapping law, the Supreme Judicial Court in 2001 upheld the conviction of a man who surreptitiously recorded police officers during a traffic stop. The court ruled that the wiretapping law granted no exception for citizens recording police officers.
The state’s lower courts have interpreted that ruling as applying only to covert recordings of police: People get convicted of secretly recording police, while charges against people who record police openly have generally been thrown out. But arrests and threats of arrest continue under both scenarios. In January 2010, the The Boston Globe reported that it was becoming increasingly common for Massachusetts police to threaten or arrest even people who record them openly. State Attorney General Martha Coakley told the paper her office took no position on the arrests, or on the distinction between open and secretive recording.
Oregon and New Hampshire are also all-party-consent states. As in Maryland, their wiretapping statutes say the offended party must have a reasonable expectation that the conversation was private. Also as in Maryland, police in both states still have arrested people for recording cops. In July, the city of Beaverton, Oregon, paid a $19,000 settlement to a man wrongly arrested for recording officers as they arrested his friend outside of a bowling alley. But even after the settlement, Beaverton Police Chief Geoff Spalding told a local newspaper that taping police without their consent is a “technical violation” of Oregon law. Spalding conceded that the odds of future arrests were “pretty low,” but he wouldn’t rule them out.
In 2006 Michael Gannon of Nashua, New Hampshire, was arrested for recording police in his own home, despite having a warning posted that the premises were monitored by a surveillance camera. And last July, 20-year-old Adam H. Whitman of Portsmouth, New Hampshire, was arrested for recording cops who had raided a party where they suspected underage drinking. Both Gannon and Whitman were initially charged with felonies. Charges against both were later dropped.
Even in states where the law is clear, it can still be misstated and misapplied. The Pennsylvania Supreme Court ruled in 1989 that the state’s wiretapping statute does not apply to on-duty police officers and other public officials because they have no expectation of privacy. That decision was bolstered in 2005, when a federal judge in Pennsylvania ruled that police had illegally arrested Allen Robinson on the charge of harassing police officers after he videotaped traffic stops from a nearby field. While the case did not rely on wiretapping laws (Robinson was too far away to pick up audio), the judge said there was “no justification for the actions of defendants in violating Robinson’s right to free speech.”
Yet the arrests continue in Pennsylvania. In 2007, 18-year-old Brian Kelly was charged with a felony for recording a traffic stop in the town of Carlisle. Cumberland County District Attorney David Freed told a local newspaper at the time that while Kelly might not have known his recording was illegal (which it wasn’t), “ignorance of the law is no defense.” Freed later dropped the charges.
In 2009 Elijah Matheney of Pittsburgh was arrested for violating the wiretap law after using his cell phone to record an altercation between his friend and a police officer. Those charges also were dropped, and Matheney sued Allegheny County with help from the Pennsylvania ACLU. The suit was settled in July with a stipulation that the Allegheny County District Attorney’s Office inform local police chiefs that recording on-duty police officers is protected under state law. The Pennsylvania ACLU reached a similar settlement with the township of Spring City in 2008 after a man there was repeatedly arrested for recording police.
If the vagueness and inconsistent application of these statutes weren’t bad enough, there is also a clear double standard when it comes to the consequences of misunderstanding what the law requires. Citizens who do not know about wiretapping laws face arrest, felony charges, and jail time. Police and prosecutors who wrongly threaten, detain, arrest, and charge people based on a misinterpretation of these laws are rarely disciplined, much less subjected to civil liability or criminal charges. Police are protected by qualified immunity, which makes it difficult to win damages for an unlawful arrest. Prosecutors are protected by absolute immunity, which makes it nearly impossible.
Although Carlisle, Pennsylvania, police acted unlawfully when they arrested and jailed Brian Kelly for recording a traffic stop, a federal judge ruled in 2009 that Kelly isn’t entitled to damages, because the First Amendment right to record police was not clearly established at the time of his arrest. The judge said the police officer who arrested Kelly was shielded from liability because he relied on an assistant district attorney’s incorrect advice. The assistant district attorney, meanwhile, was protected by absolute immunity for any actions related to his work as a prosecutor. In October the U.S. Court of Appeals for the 3rd Circuit upheld the judge’s decision, although it did send the case back for consideration of Fourth Amendment issues.
The double standard is also apparent in the case of Anthony Graber, the Maryland motorcyclist who posted video of the state trooper who pulled him over. In September, Harford County Circuit Court Judge Emory Plitt Jr. dismissed the wiretapping charges against Graber in an opinion that could have come straight from the ACLU. “Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” Plitt wrote. “When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. ‘Sed quis custodiet ipsos cutodes’ (‘Who watches the watchmen?’).”
If Plitt had endorsed Cassilly’s interpretation of the wiretapping statute, Graber would be facing prison time and a felony record for an act that many people have no idea is a crime, an act that caused little, if any, actual harm. But Graber was right about the law. Cassilly and the Maryland State Police were wrong, and their misreading of the law caused real harm: Graber was illegally raided, arrested, and jailed; for six months he faced the emotional and financial cost of pending two felony charges. Yet Cassilly and the police face no legal sanction, and the odds that Graber will successfully sue them are nil.
‘We Don’t Have Those Problems Around Here’
Prior to 1994, the Illinois wiretapping statute included the privacy provision found in most other all-party-consent states. But in 1994 the state legislature removed the provision, making it illegal to record audio of anyone without her consent. The sponsor of the amendment said his intent was to undo a 1986 Illinois Supreme Court decision overturning the eavesdropping conviction of a man who had recorded two police officers from the back of a patrol car.
First Amendment attorney Robert Corn-Revere says the way the resulting law is being used could mean that “a journalist who records a public meeting without the consent of all persons in the room could be prosecuted.” Corn-Revere believes that regardless of what a state’s wiretapping law says, the First Amendment should preclude prosecuting someone who records police officers publicly performing their duties. The ACLU of Illinois agrees. “Getting this law overturned is a high priority for us,” says Adam Schwartz, the organization’s senior staff counsel. “The First Amendment includes a news gathering component, and included in that is the right to record in public places.”
While the Illinois law has been used to make arrests and to charge citizens for recording police, I have been unable to find a case in which anyone was actually convicted under it in those circumstances. In one high-profile 2004 case, police arrested documentary filmmaker Patrick Thompson for recording their interactions with bar and restaurant patrons in Champaign and Urbana. (Thompson was making a movie about tensions between police and African Americans in the town.) The ACLU of Illinois submitted an amicus brief on Thompson’s behalf, asking the judge overseeing his case to overturn the law on First Amendment grounds. Thompson pleaded guilty to a misdemeanor before the judge could rule on that issue.
Schwartz says that’s how most of these Illinois eavesdropping cases are resolved. “I think they know this law won’t hold up in court,” he says, “so they arrest and charge people but then offer a plea bargain or drop the charges before it gets to trial. You can’t really blame anyone for taking the offer. If they challenge the law and lose, they’re looking at a felony record and possible time in prison. These are usually people who don’t have a criminal record.”
As long as no one is convicted, no one challenges the law. So the law stays on the books, and it remains a tool Illinois police use to arrest or threaten anyone who tries to record them.
But that may change. In December 2009, the 59-year-old artist and social activist Christopher Drew set out to get arrested in downtown Chicago. Drew was protesting the city’s permitting requirement to sell art on the street. He recorded the event as part of his plan to challenge the ordinance. Drew was arrested, as expected, for not having a permit but now faces an additional felony charge for the recording.
“This city has had all kinds of scandals with police misconduct,” Drew says. “Yet they’re arresting people for recording them? Some of those scandals showed police doing things on video that didn’t match what they put in police reports. Or we only know about the abuse because of the video. The police didn’t bother to investigate the original complaints.”
A Chicago law firm took up Drew’s case pro bono in August, and a month later the Illinois ACLU filed a lawsuit to overturn the statute. The ACLU suit cites six people who have been charged under the law, including Adrian and Fanon Perteet, two brothers arrested for recording their interaction with police at a fast food drive-through. The brothers say they were both victims of police abuse in the past and recorded the stop to protect themselves. They pled guilty to a misdemeanor charge of attempted eavesdropping but were required by the plea agreement to delete the video and apologize to the police.
Illinois State Rep. Chapin Rose (R-Charleston) thinks the wiretapping law needs to be changed. “I’m a former prosecutor, and when you have a law that prohibits something your average Joe thinks is perfectly legal, it undermines respect for the rule of law,” Rose says. “Everyone has a camera on his cell phone now, and we’re making what lots of people in this state do every day, which is to use those cameras in public, a felony.”
In 2006 Rose introduced a bill to amend the wiretapping law, making it explicitly legal for citizens to record on-duty police officers and public officials. The bill died in committee; it wasn’t even brought up for debate. Now Rose says it would be futile to introduce the bill again because “there’s just no interest in Springfield for this sort of thing.”
Crawford County State’s Attorney Tom Wiseman is the man prosecuting Michael Allison, the amateur Illinois mechanic charged with illegally recording police and a judge. Asked if he thinks Allison should spend the rest of his life in prison for recording his interactions with public officials, Wiseman says, “My job isn’t to write the laws. My job is just to enforce them.” Of course, Wiseman does have discretion over whom he charges and what charges he files. But he says Allison committed a felony, and it wouldn’t be proper for a prosecutor to overlook such a thing. (Judge Kimbara Harrell and the Robinson Police Department did not return calls requesting comment.)
“They may have problems with some bad police officers in some of your urban areas,” Wiseman adds. “But we don’t have those problems around here. All of our cops around here are good cops.”
Photography Is Not a Crime
In addition to arresting citizens with cameras for wiretapping, police can use vaguer catch-all charges, such as interfering with a police officer, refusing to obey a lawful order, or obstructing an arrest or police action. Such arrests are far more common. Even more frequent are incidents where police don’t make arrests but illegally confiscate cameras, delete photos and videos, or incorrectly warn camera-wielding citizens that they aren’t allowed to film.
One of the most disturbing examples of illegal confiscation came shortly after a recorded citizen-police encounter that shocked the country. On New Year’s Day 2009, in front of a large crowd, Bay Area Rapid Transit (BART) Officer Johannes Mehserle shot and killed 21-year-old Oscar Grant at point-blank range as Grant lay on his stomach in an Oakland subway station. Dozens of commuters captured the incident on their cell phones. Within hours, the first mass-recorded police killing of a U.S. citizen was posted all over the Internet. But immediately after the incident BART police attempted to confiscate the phones of subway riders, in at least one case chasing a cell phone owner onto a subway car. In most jurisdictions, including California, police aren’t permitted to confiscate a phone unless the phone itself was used in a crime. At best they can get the owner’s contact information in case they later need to subpoena photos or videos as evidence.
Carlos Miller has become perhaps the best-known citizen activist on the issue of recording and photographing police. In 2007 Miller was arrested for photographing five Miami police from a public road. He was eventually cleared of all charges, but the experience motivated him to start the blog Photography Is Not a Crime, where he documents and tracks cases of people arrested or threatened for photographing or videotaping in public. After starting the blog, Miller was again arrested in 2008 for photographing another Miami police officer, this time during a protest. Those charges were also dismissed after Miller again spent a night in jail. His photos were deleted, though he was able to retrieve them with recovery software.
“There’s this idea that just because charges are dropped, there’s no harm,” Miller says. “But that isn’t right. There’s definitely harm when someone is illegally arrested and has to spend a night or more in jail. Your life is disrupted. You now have legal bills to deal with. There’s also harm when a cop wrongly tells someone they can’t photograph or record. He’s intimidating them into giving up their rights.”
There have been plenty of incidents to keep Miller’s blog humming. In just the last year, people have been wrongly arrested, detained, or threatened after photographing or recording police in West Virginia, California, Texas, Florida, Arkansas, Louisiana, and Missouri. Last July 20-year-old Melissa Greenfield was arrested in Delaware County, Ohio, for using her cell phone to record a cop who had pulled over her boyfriend. The officer in that case claimed in his report that he feared Greenfield might have been holding a gun disguised as a cell phone. Last summer police arrested, harassed, or confiscated the equipment of several people who were attempting to take photos or videos of damage caused by the BP oil leak in the Gulf of Mexico.
In another incident last summer, Washington, D.C., photographer Jerome Vorus was detained over the July 4 weekend after taking photos of police making a traffic stop in Georgetown. According to Vorus, four cruisers and 10 police officers eventually responded to his picture taking. All of them, including two supervisors, wrongly told him it is illegal to photograph D.C. police officers. Asked about the Georgetown incident on a radio call-in program, D.C. Police Chief Kathy Lanier said the city has no policy against photographing police officers, but she also defended the cops, explaining that they don’t like being photographed because “we can have our pictures end up on all sorts of websites, and that can be dangerous for us.”
The First Amendment Right to Record
Seth Kreimer, the University of Pennsylvania law professor, argues that both methods police use to stop people from photographing or recording them on duty—wiretapping laws and catch-all obstruction/interference charges—are unconstitutional. Kreimer notes that three federal appeals courts (for the 1st, 9th, and 11th circuits) have ruled that the First Amendment confers at least some protection on people who photograph or record police in public, as have several federal circuit court judges.
Defenders of bans on recording the police often point to federal court decisions finding that the First Amendment does not require government agencies to release information. But Kreimer distinguishes those cases from laws banning public recordings, writing that “prohibition of unadorned image capture by observers is not a protection against ‘compelled’ disclosure of information. It is a prohibition against recording information that has already been voluntarily released.” Kreimer likens a law against recording police to a law forbidding reporters from taking notes on events they witness in public.
UCLA law professor Eugene Volokh, a First Amendment specialist, agrees, but he isn’t optimistic that federal courts will adopt Kreimer’s view. “You can make a good argument that the right to record police is a necessary adjunct of the First Amendment right to report information,” Volokh says. “But I think one reason the Supreme Court has been hesitant to take up this issue is that it’s hard to see how we could have a news-gathering right as to public conversations that wouldn’t also apply to conversations that one party expects to remain private. The difficulty here is that if the courts recognize such a news-gathering right, they’re going to have to confront this issue, and either decide that people are free to secretly record any conversation they’re privy to, or have to draw lines between some conversations and other conversations that are hard to justify as a First Amendment matter.”
Whether or not the courts recognize a constitutional right to record on-duty public officials in public spaces, a more immediate question is whether prohibiting such recordings—or allowing police to effectively prohibit them—is good policy. Here there seems to be little disagreement, at least outside the law enforcement community. In recent months, driven largely by the Graber case, a wide array of publications from across the political spectrum have run editorials against the crackdown on citizen photographers and videographers, including USA Today, The Washington Post, the Baltimore Sun, Popular Mechanics, and even the more conservative editorial boards at the The Washington Times, the Washington Examiner, and the Manchester Union-Leader.
“Let me just say that as a matter of policy I think it’s ludicrous that people would be arrested for recording a police officer,” adds Volokh. “I’m surprised state legislators haven’t gotten more involved in this.” Kreimer says his ideal law would not only explicitly make recording and photographing police legal; it would also provide a way for those wrongly arrested by police to recover damages from the officers who arrest them.
A law like that is likely to face fierce opposition from law enforcement organizations. Jim Pasco, executive director of the national Fraternal Order of Police, says he sees no problem with arresting people who photograph or record on-duty cops. Pasco says his main concern is that activists will tamper with videos or use clips out of context to make police officers look bad.
“There’s no chain of custody with these videos,” Pasco says. “How do you know the video hasn’t been edited? How do we know what’s in the video hasn’t been taken out of context? With dashboard cameras or police security video, the evidence is in the hands of law enforcement the entire time, so it’s admissible under the rules of evidence. That’s not the case with these cell phone videos.”
But Carlos Miller, proprietor of Photography Is Not a Crime, says that’s no reason to prevent people from taking video in the first place. “If a video has been altered or edited, that’s a pretty easy thing to discern,” he says. “That’s going to come out in an investigation. And just because a video has only been in police custody doesn’t mean it hasn’t been altered or edited. Police can edit videos too.”
Or delete them entirely. In the College Park case, a campus police surveillance camera was pointed at the area where Jack McKenna was beaten. But there’s no security video of the incident. Campus police say the camera coincidentally malfunctioned at the time of the beating. A local news station reported that the officer in charge of the campus surveillance video system is married to one of the officers later disciplined for McKenna’s beating.
This is not the first time a police camera in Prince George’s County has malfunctioned at a critical time. In 2007 Andrea McCarren, an investigative reporter for the D.C. TV station WJLA, was pulled over by seven Prince George’s County police cars as she and a cameraman followed a county official in pursuit of a story about misuse of public funds. In a subsequent lawsuit, McCarren claimed police roughed her up during the stop, causing a dislocated shoulder and torn rotator cuff. McCarren won a settlement, but she was never able to obtain video of the incident. Prince George’s County officials say all seven dashboard cameras in the police cruisers coincidentally malfunctioned.
Last March, Justice Lee Ann Dauphinot of the Second Court of Appeals in Texas complained in a dissent that when defendants accused of driving while intoxicated in Fort Worth challenge the charges in court, dash-camera video of their arrests is often missing or damaged. “At some point,” Dauphinot wrote, “courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for.”
‘Trust in Our Authority Figures’
Pasco, the head of the Fraternal Order of Police, says cases where video contradicts police testimony are rare. “You have 960,000 police officers in this country and millions of contacts between those officers and citizens,” he says. “I’ll bet you can’t name 10 incidents where a citizen video has shown a police officer to have lied on a police report.”
Carlos Miller says it would take him just a few minutes to pull 10 such incidents from his archives. He mentions the case of Fort Lauderdale police officer Jeff Overcash, who was forced to resign just a couple of days prior to our conversation. Overcash had claimed in an arrest report that a man was drunk, belligerent, and resisting arrest. Cell phone video taken by the man’s girlfriend showed the officer was wrong on all three counts.
“Letting people record police officers is an extreme and intrusive response to a problem that’s so rare it might as well not exist,” Pasco insists. “It would be like saying we should do away with DNA evidence because there’s a one-in-a-billion chance that it could be wrong. At some point, we have to put some faith and trust in our authority figures.”
Michael Allison, who has some reason to mistrust authority figures, says he won’t accept the sort of plea bargain Illinois prosecutors have offered in similar cases. “Under no circumstances,” he says. “I’ll go to prison before I plead guilty to a crime for exercising my rights. Not even a misdemeanor.”
I ask Pasco if he believes someone like Michael Allison should go to prison, potentially for the rest of his life. “I don’t know anything about that case,” Pasco replies, “but generally it sounds like a sensible law and a sensible punishment. Police officers don’t check their civil rights at the station house door.”
“That just doesn’t sound right,” Allison says. “My civil rights are supposed to protect me from the government. When a police officer is on the job, he’s part of the government. So [Pasco] is trying to say the government has civil rights to protect it from the people? That doesn’t make any sense to me.”
*CORRECTION: The print version and an earlier online version of this story referred to a police video taken at the Belmont Stakes. It was actually taken at the Preakness Stakes.
Radley Balko (rbalko@reason.com) is a senior editor at reason.
I personally think that anyone dealing with the police should have the right to record their encounter with them. There's no reason we should surrender a valuable tool that enables us to avoid the "he said, she said" dilemma. If the police are afraid that recordings will be altered to contrive false evidence against them... they could carry recorders of their own. Hell, as mentioned in the article, a lot of police vehicles are equipped with dashboard cameras, so in traffic stops there should already be some attempt occurring to record what transpires.
There's something in the back of my head that wonders if the courtroom recording issue might be murkier, but at the same time it seems like someone should definitely be able to review proceedings that were held against them. Someone better versed in law and procedure would probably have better insight on that.
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