Outlaw cameras and only outlaws will have cameras

[spanky]

http://gizmodo.com/5553765/are-cameras-the-new-guns

In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

The legal justification for arresting the "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law - requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler's license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

In 2001, when Michael Hyde was arrested for criminally violating the state's electronic surveillance law - aka recording a police encounter - the Massachusetts Supreme Judicial Court upheld his conviction 4-2. In dissent, Chief Justice Margaret Marshall stated, "Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals…." (Note: In some states it is the audio alone that makes the recording illegal.)

The selection of "shooters" targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate.

Glik captured a police action on his cellphone to document what he considered to be excessive force. He was not only arrested, his phone was also seized.

On his website Drew wrote, "Myself and three other artists who documented my actions tried for two months to get the police to arrest me for selling art downtown so we could test the Chicago peddlers license law. The police hesitated for two months because they knew it would mean a federal court case. With this felony charge they are trying to avoid this test and ruin me financially and stain my credibility."

Hyde used his recording to file a harassment complaint against the police. After doing so, he was criminally charged.

In short, recordings that are flattering to the police - an officer kissing a baby or rescuing a dog - will almost certainly not result in prosecution even if they are done without all-party consent. The only people who seem prone to prosecution are those who embarrass or confront the police, or who somehow challenge the law. If true, then the prosecutions are a form of social control to discourage criticism of the police or simple dissent.

A recent arrest in Maryland is both typical and disturbing.

On March 5, 24-year-old Anthony John Graber III's motorcycle was pulled over for speeding. He is currently facing criminal charges for a video he recorded on his helmet-mounted camera during the traffic stop.

The case is disturbing because:

1) Graber was not arrested immediately. Ten days after the encounter, he posted some of he material to YouTube, and it embarrassed Trooper J. D. Uhler. The trooper, who was in plainclothes and an unmarked car, jumped out waving a gun and screaming. Only later did Uhler identify himself as a police officer. When the YouTube video was discovered the police got a warrant against Graber, searched his parents' house (where he presumably lives), seized equipment, and charged him with a violation of wiretapping law.

2) Baltimore criminal defense attorney Steven D. Silverman said he had never heard of the Maryland wiretap law being used in this manner. In other words, Maryland has joined the expanding trend of criminalizing the act of recording police abuse. Silverman surmises, "It's more [about] ‘contempt of cop' than the violation of the wiretapping law."

3) Police spokesman Gregory M. Shipley is defending the pursuit of charges against Graber, denying that it is "some capricious retribution" and citing as justification the particularly egregious nature of Graber's traffic offenses. Oddly, however, the offenses were not so egregious as to cause his arrest before the video appeared.

Almost without exception, police officials have staunchly supported the arresting officers. This argues strongly against the idea that some rogue officers are overreacting or that a few cops have something to hide. "Arrest those who record the police" appears to be official policy, and it's backed by the courts.

Carlos Miller at the Photography Is Not A Crime website offers an explanation: "For the second time in less than a month, a police officer was convicted from evidence obtained from a videotape. The first officer to be convicted was New York City Police Officer Patrick Pogan, who would never have stood trial had it not been for a video posted on Youtube showing him body slamming a bicyclist before charging him with assault on an officer. The second officer to be convicted was Ottawa Hills (Ohio) Police Officer Thomas White, who shot a motorcyclist in the back after a traffic stop, permanently paralyzing the 24-year-old man."

When the police act as though cameras were the equivalent of guns pointed at them, there is a sense in which they are correct. Cameras have become the most effective weapon that ordinary people have to protect against and to expose police abuse. And the police want it to stop.

Happily, even as the practice of arresting "shooters" expands, there are signs of effective backlash. At least one Pennsylvania jurisdiction has reaffirmed the right to video in public places. As part of a settlement with ACLU attorneys who represented an arrested "shooter," the police in Spring City and East Vincent Township adopted a written policy allowing the recording of on-duty policemen.

As journalist Radley Balko declares, "State legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials."

 

[CloudStrife]

The police are basing this claim on a ridiculous reading of the two-party consent surveillance law - requiring all parties to consent to being taped.

Do these cops have dashcams? If so, I doubt drivers would consent to being recorded.

 

[rooster]

O crap here we go. Most of you could guess my position on this. In this state you can video or record any actions as long as one party knows it is being recorded. So as long as the person recording knows it is being recorded it is legal. When I record my interaction with LEO I let them know just to be nice and avoid any problems. But remember when recording a phone conversation one party must know.

 

[herohog]

If YOU are recording it, YOU know and that is all that is required by the law from what you say, Can you link or post your source?

 

[Sin-ster]

Wow.

Am I dense... Or is the only reason to outlaw the filming to protect officers who are guilty of misconduct? I suppose some clever editing might cause problems, but... It just seems like an admission of guilt AND a "what are you gonna do about it", all rolled into one.

This is not a cop bash, unless you're a dirty one. Or protecting dirty officers. Or going out of your way to misinterpret the spirit of a law.

 

[posse comatosis]

Odd if there are not already First Amendment challenges to these laws. Clearly free speech is protected, and filming facilitates free speech. Perhaps the sheeple are getting used to taking it in the a$$ laying down.

 

[oleheat]

Damn.

Well, there goes COPS. (and 70% of the evening news in BR & NOLA)

 

[spanky]

Damn.

Well, there goes COPS. (and 70% of the evening news in BR & NOLA)

Only 70? That's very generous.

 

[gbundersea]

If YOU are recording it, YOU know and that is all that is required by the law from what you say, Can you link or post your source?

Here's the statute, and here's the pertinent section:

RS 15:1303 (C)(4) It shall not be unlawful under this Chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception, unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of the state or for the purpose of committing any other injurious act.

This statute addresses "wire or oral communications" so whether it would apply to videotaping someone would probably be determined by the courts.

Crap shoot, anyone?

 

[oleheat]

Only 70? That's very generous.

I'm just trying to help shed a positive light on "America's Next Great City".

 

[jimmyzshack]

If YOU are recording it, YOU know and that is all that is required by the law from what you say, Can you link or post your source?

http://www.rcfp.org/taping/states/louisiana.html

 

[senseibuddy]

[ame]http://www.youtube.com/watch?v=kQkQh6ss0rE[/ame]

 

[Hardballing]

This story has been brewing for a couple of months or even years.

Will have to be sorted out via the courts, state by state, over the next decade imo. Emerging technology and the law so to speak. Will eventually land before SCOTUS and from there, totally depends on which side then holds power, red vs blue.

Faster and faster we go, down the rabbit hole...

 

[senseibuddy]

Im not a LEO hater, but it seems that if they can video you via dash cam, you can video them. They are servants of the public and have a hellava hard job. But when it comes to the fine line between jail time and the cops word (who has the upper hand in court no matter what) , video aint such a bad idea.

my .02

 

[posse comatosis]

This: http://www.krages.com/ThePhotographersRight.pdf

And this:
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/25/AR2010072502795.html

 

[herohog]

Thanks for the legal citations!

 

[senseibuddy]

http://carlosmiller.com/

 

[swamper]

Just posting an update I saw.

http://weblogs.baltimoresun.com/news/crime/blog/2010/09/motorcyclist_wins_taping_case.html

http://blog.washingtonpost.com/story-lab/2010/09/wiretapping_charges_dropped_ag.html

"Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public," the judge wrote. "When we exercise that power in public fora, we should not expect our actions to be shielded from public observation."

 

[hdfinder47]

I don't like folks filming me when I work - makes me angry and want to taze a fool. Yo'.

 

[tecate321]

Im not a LEO hater, but it seems that if they can video you via dash cam, you can video them. They are servants of the public and have a hellava hard job. But when it comes to the fine line between jail time and the cops word (who has the upper hand in court no matter what) , video aint such a bad idea.

my .02

I agree and camera phones are awesome, especially when you say your recording this~!