The battle for the right to record cops in public without fear of getting arrested on felony wiretapping charges has been grueling, but progressing steadfastly in favor of the citizen.
But there is still much work to do.
Just this week, a Chicago woman who was facing up to 15 years in prison for recording police officers was acquitted - a huge victory considering it took place in Illinois, which has the strictest wiretapping law in the country.
The law, however, still stands and two other men in that state are still facing prison time for recording public officials without their consent. The ACLU next month will begin oral arguments for its complaint that challenges the constitutionality of the law (above video).
And earlier today in Massachusetts – which has the second strictest law in the country – a court ruled that a group of police officers do not have “qualified immunity” after wrongly arresting a man for video recording them in public making an arrest.
That decision not only sets a precedent in Massachusetts, it also allows Simon Glik to procede with his lawsuit against the three officers.
Another wiretapping case
However, another Massachusetts man just learned that he is facing five years in prison for illegal wiretapping for apparently recording a cop over the summer.
Beau Davis is not too clear on the details because he only learned of the charge a few days ago after the court sent a letter to his parents in Florida.
Davis, who lives in Keene, New Hampshire, believes the alleged incident stems from his coverage of the wiretapping trial of his friends, Pete Eyre and Adam “Ademo Freeman” Mueller, who were recently acquitted.
This is how he explains it on the blog he launched to highlight his case.
A few days ago, my parents in FL received a letter in the mail from the Trial Court of Massachusetts District Court Department, stating that I needed to be present in court in Greenfield, MA, alleging that I unlawfully wiretapped a member of the Greenfield Police Department on May 20, 2011. The charge is, as it is written in the letter, “WIRETAP, UNLAWFUL c272 §99(C)(1)”, which is a felony in Massachusetts. The charge was filed on August 11, 2011. It is August 21, 2011 and I am just now receiving the letter today from my parents. The date of the arraignment is September 7, 2011.
Unless they have clear evidence that he was secretly recording police, they have no case. Either way, it’s still a message of intimidation.
But now Glik’s victory leaves these police departments open to get sued, which is good news for Eyre and, I’m willing to bet, Davis.
The Glik decision forbids cops from using the old “I didn’t know the law” routine, which works surprisingly well for them.
Wiretapping laws in the United States are broken down into one-party consent or two-party consent states, meaning that some states allow you to record somebody without their consent while others require you to get their consent.
But in most two-consent states, the law includes an expectation of privacy provision that makes it legal to record people, including police officers, in public.
Here is a state-by-state breakdown of the wiretapping laws compiled by the Reporters Committee for Freedom of the Press.
And here are some cases that made national news in recent years.
- In Maryland, police arrested Anthony Graber on wiretapping charges after he recorded a cop pulling a gun on him during a traffic stop. Graber, who was riding a motorcycle and wearing the camera on his helmet, was facing up to 16 years in prison before a judge finally threw out the case on the basis that police officers do not have an expectation of privacy as they perform their public duties.
- In Florida, police arrested Tasha Ford on wiretapping charges for video recording cops who were hassling her son in a movie theater parking lot in 2009. Charges against her were quickly dropped and she is now suing.
- In Oregon, police arrested a man on wiretapping charges in 2008 after he video recorded police arresting his friend, who is mentally disabled. Charges against him were dropped and he sued, winning a $19,000 settlement. But still, one Oregon police chief vowed to continue making these arrests, even after a city attorney sent out a memo stating these arrests are unlawful.
- In Pennsylvania, police arrested an 18-year-old man on wiretapping charges who video recorded an officer from the passenger seat of his friend's car during a traffic stop in 2007. Brian D. Kelly was facing seven years in prison before charges against him were dropped. But police in that state continue to threaten videographers with these charges.
The Massachusetts law
The Citizen Media Law Project, which is based in the Harvard Law School in Massachusetts, highlights a few interesting statements from the Glik decision.
- "[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative."
- "Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'"
- "[A] citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."
- "Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'"
Unfortunately, the law doesn’t change the fact that citizens in Massachusetts are still forbidden from secretly recording police in public, even if the officer does not have an expectation of privacy.
And as Radley Balko points out, that will always leave the citizen vulnerable to these charges, even if he is openly recording the cop:
First and foremost because I think the First Amendment protects the right to surreptitiously record on-duty cops. If you’re recording a cop beating the hell out of someone, it isn’t difficult to see why there might be some problems with a law that requires you to make it obvious to the cop that you’re doing so. Second, if the Massachusetts law is upheld, it’s going to create disputes about what constitutes plain sight, what is surreptitious, and whether a jury should believe the cop’s or the citizen’s account of where the camera was held while it was recording.
So now it’s up to the discretion of the judges and district attorneys in Massachusetts on how to proceed with these cases.
Less than two weeks ago, Hampden District Attorney Mark G. Mastroianni refused to pursue wiretapping charges against a woman who was secretly recording a police beating from inside her home, which is yet another indication that court authorities in that state are getting weary of trying to prosecute these cases.
However, police in that state are not about to relinquish their ace-in-the-hole and will use it any opportunity they can, as they did this month to Robert E. Mansfield, who was arrested by Brockton police after he admitted to recording an argument he had with an officer during a traffic stop.
Mansfield is scheduled to attend a pretrial hearing on October 12.
Let's hope Plymouth County District Attorney Timothy J. Cruz has enough sense to see that police officers should not have an expectation of privacy during traffic stops.
The Illinois law
While the Massachusetts law allows citizens to openly record them, the Illinois law forbids citizens from recording on-duty cops without their consent, even if they don’t have an expectation of privacy.
This means that even if a citizen is openly recording a group of cops making an arrest in a public park, that person is subject to felony arrest if the cops are too busy beating the man to realize somebody is recording them.
That’s how Glik got arrested. But his charges were quickly tossed out.
The cops claimed they didn’t realize Glik had the right to record them, which is why they demanded quality immunity.
Illinois cops don’t need quality immunity because the law is on their side.
That’s why this week’s Tiawanda Moore victory was momentous.
The Chicago woman was facing several years in prison for secretly recording her conversations with internal affairs officers, even though they were recording the same conversation.
She was accusing a cop of sexually groping her and internal affairs was trying to talk her out of filing the report.
According to the Chicago Sun-Times:
“I wanted him to be fired,” Moore testified of the cop she alleges fondled her and gave her his phone number during a domestic battery call at the South Side residence she sometimes shares with her boyfriend.
Moore said she didn’t know about the Illinois Eavesdropping Act, which prohibits the recording of private or public conversations without the consent of all parties. Even so, Moore’s attorney, Robert Johnson, said his client was protected under an exemption to the statute that allows such recordings if someone believes a crime is being committed or is about to be committed.
The Internal Affairs officers were “stalling, intimidating and bullying her,” Johnson said. The recording, which was played in court during the one-day trial, proved it, Johnson said.
Assistant State’s Attorney Mary Jo Murtaugh told jurors, “The content of the tape is not the issue. The issue is that the words were taped.”
This was obviously a case of jury nulification because "stalling, intimidating and bullying" a citizen from filing a complaint is more of a job description than a crime for an internal affairs investigator.
As in the Glik case, the court decision does not affect the state law, which is unfortunate for Charles Drew and Michael Allison, two men who are also facing felony wiretapping charges because they recorded public officials.
Here is Allison's story, told by Radley Balko:
This Robinson, Ill., man is facing four counts of violating the eavesdropping law for the recordings he made of police officers and a judge. Allison was suing the city to challenge a local zoning ordinance that prevented him from enjoying his hobby fixing up old cars: The municipal government was seizing his cars from his property and forcing him to pay to have them returned. Allison believed the local police were harassing him in retaliation for his lawsuit, so he began to record his conversations with them.
When Allison was eventually charged with violating the zoning ordinance, he asked for a court reporter to ensure there would be a record of his trial. He was told that misdemeanor charges didn't entitle him to a court reporter. So Allison told court officials he'd be recording his trial with a digital recorder.
When Allison walked into the courtroom the day of his trial, the judge had him arrested for allegedly violating her right to privacy. Police then confiscated Allison's digital recorder, where they also found the recordings he'd made of his conversations with cops.
Allison has no prior criminal record. If convicted, he faces up to 75 years in prison.
The other case to challenge the wiretap law is that of Christopher Drew, an artist who was arrested in December 2009 for selling art without a permit on the streets of Chicago. Drew recorded his arrest, and now faces four to 15 years for documenting the incident.
The ACLU case
But a third case that might end up changing the absurd Illinois law involves the ACLU's complaint that the statute was unconstitutional.
That case is pending appeal. Here is that complaint.
Last year, the ACLU sued to get the law changed to allow citizens to record police in public, but Federal District Court Judge Suzanne Conlon dismissed the case, claiming it had no Constitutional merit.
The ACLU intends to audio record police officers speaking with one another or police officers speaking with civilians. The ACLU’s program only implicates conversations with police officers. The ACLU does not intend to seek the consent of either police officers or civilians interacting with police officers. Police officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants. The ACLU has not met its burden of showing standing to assert a First Amendment right or injury....
So the ACLU appealed and they will present their oral arguments on September 13, according to Harvey Grossman, one of the lawyers named in the suit.
"Conlon's decision was kind of unique," he said in a quick phone interview with Photography is Not a Crime Friday.
UPDATE: I just discovered a blog called Right to Record that provides exstensive analysis on both the Glik case and upcoming ACLU case.
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