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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.