More on Recording On-Duty Police Officers

Two stories from the ongoing debate over recording on-duty police officers in public spaces.

The first comes from Oregon, where the city of Beaverton has paid a $19,000 settlement to a man arrested for recording police arresting his friends at a bowling alley. But Beaverton Police Chief Geoff Spalding cautions against interpreting the settlement to mean citizens have a right to record the cops.

Spalding said Oregon's eavesdropping statutes, ORS 165.540 and ORS 165.543, are complex and intended to ensure privacy. Spalding said he believes his officers can arrest people who record officers' private conversations without permission. But the likelihood of arrest, Spalding said, "is pretty low."

"That is a technical violation of the law. That doesn't mean there's going to be an arrest," Spalding said.

In fact, the Vang incident is the only time Beaverton officials can recall arresting someone under Oregon's eavesdropping laws, Spalding said. In that instance, city prosecutors decided not to pursue charges against Vang—not because they thought the law had been misapplied, they said at the time, but because the audio quality of the recording was poor and may not have constituted a legal violation.

On Aug. 27, 2008, Vang used his cell phone to capture the arrest of one of his friends at the Valley Lanes Bowling Center in Beaverton. Vang made no attempt to hide his recording and even narrated what he was capturing, said Vang's attorney, Kevin Lucey.

Spalding's response is similar to the response I received recently from Maryland State's Attorney Joseph Casilly, who is pursuing charges against Anthony Graber for recording a state trooper who pulled Graver over while Graber was riding his motorcycle. Casilly told me in a voicemail message that he had no problem with the students who recorded a police beating at the University of Maryland in February because the officers in that case were obviously in public, surrounded by people, and thus had no expectation of privacy. But Casilly said on-duty officers do have some expectation of privacy while on duty, particularly in their conversations with a small number of people. Though the officer who pulled Graber over was on a public road, and had drawn his gun, and was acting in his capacity as a cop, Casilly believes the trooper had the right to keep the audio portion of his interaction with Graber private (though Graber had no such right).

This is a huge problem, even if you don't believe there should be a right to record on-duty public servants. We have a line, here. On one side of that line is constitutionally-protected speech. On the other side is a felony punishable by prison time. And even high-ranking law enforcement officials like a police chief and state's attorney can't give us a clear indication of where the line lies. (I have asked Casilly to clarify his response. I will post his clarification if he does.) If even a police chief or state's attorney can't say with certainty when we are breaking the law and when we aren't, how are we supposed to know?

The result is that anyone who dares to record on duty cops in these jurisdictions risks arrest and the threat of jail time (I've yet to find a case of someone actually convicted and sent to prison for recording the police). So long as the law remains murky, there's risk associated with training your camera on a cop.

Even in the few states where the law is clear, there's still confusion. As I explained in my column last week, Pennsylvania is one of the few states where the courts have established a clear right to make both video and audio recordings of on-duty police officers in public spaces. But in the video below, a police officer attempts to get two protesters to stop recording him by falsely accusing one of them of violating the state's wiretapping law. The woman, a lawyer from Philadelphia, informs him that she's well within her rights, and challenges him to arrest her if he believes otherwise. He backs down.

But it makes you wonder how many times police in Pennsylvania have been successful at getting someone to turn off a camera by wrongly accusing them of violating the state's wiretapping laws.

(I should add here that I know nothing and have no opinion about the underlying dispute between the women and local gun club.)