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 (Illinois, Massachusetts, and Maryland), it is now illegal
to record an 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.”
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