Police

More on Recording On-Duty Police Officers

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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.)

NEXT: When the Police Stop Absolutely Everybody

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  1. So why then is it OK for the stupid cops to TAPE US on their dash cams? Shouldnt the same privacy laws apply to them? Oh thats right, I forgot. d-bag cops are above the law!

    Lou
    http://www.privacy-tools.es.tc

    1. It’s pretty scary when you think about it.

    2. Score one for anonymity-bot!

      1. The comment bot is now sentient.

        1. Does that mean the rise of Skynet is nigh?

        2. Damn, now we’re supposed to smash the metal motherfuckers – but he’s so adorable.

    3. That dude actually makes a LOT of sense when you think about it.

      blah.blah/privacy/blah blah

    4. As O’Brien passed the telescreen a thought seemed to strike him. He stopped, turned aside and pressed a switch on the wall. There was a sharp snap. The voice had stopped.

      Julia uttered a tiny sound, a sort of squeak of surprise. Even in the midst of his panic, Winston was too much taken aback to be able to hold his tongue.

      ‘You can turn it off!’ he said.

      ‘Yes,’ said O’Brien, ‘we can turn it off. We have that privilege.’

  2. So, I know that there are situations in which a person is allowed to resist police if the police are acting outside their authority, etc.

    If a someone jumped out of a car with a gun in their hand, depending on the reason and situation I’d probably be looking to disarm that individual as soon as I could – regardless of whether or not they were a cop.

  3. Wow, the cop in that picture does not look like a pig at all.

  4. If a someone jumped out of a car with a gun in their hand, depending on the reason and situation I’d probably be looking to disarm perforate that individual as soon as I could .

    You’re not going to disarm someone with a gun. You’re going to either kill them, or submit, or die.

    1. Well it does depend on the situation. IF you are close enough to reach the gun AND if your assailant is not really anticipating a disarm AND if you have quick reflexes AND you are trained in disarming, then there is about a 50/50 chance you will succeed. If all the above applies and you are going to be killed anyway you might as well try.

  5. You’re not going to disarm someone with a gun.

    Cops are horrible shots. Run at ’em. You’ll usually get the gun.

    1. How about if I run behind you?

    2. I would ammend your statement: the vast majority of human beings in life threatening situations are horrible shots.

      1. Cops are far better shots in those situations than most people. His advice is nuts. And tongue in cheek (I hope).

    3. You’re thinking of Stormtroopers…

  6. 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?

    Simple. The law iz wut they sez it iz.

  7. Its hard to think of a more unambiguously hypocritical law than being forbidden to record on duty public peace enforcers.

    It (probably shouldn’t) amazes me that this subject doesnt get the national coverage and outrage that it deserves. One would think you’d be hard pressed to find many lowly common folk on either side of the aisle who would support such a tyrannical law.

    I love the attention Reason is giving it.

    F,F,FTP

  8. There are a few different issues going on in that video. There are property rights concerns, which seem murky since we don’t know from the video who owns what. The wiretap law threat is what it is, which is a police officer misapplying what he thinks a law says (erring on the side that’s to his benefit).

    In general (and not to make excuses for poorly trained LEO (which will get me reamed out here in H&R)), the proliferation of nebulous laws and regulations make it pretty much impossible for any police officer to do that job well.

    1. Hey, ignorance of the law is no excuse for us little people – even less so for a badge-kissing cop.

    2. Fist does make a good point about our ridiculously oversized criminal code and how it makes it more difficult for cops to enforce laws.

      On a somewhat related note, I was actually somewhat impressed with the cop insofar as he didn’t 1.) taser the women; 2.) arrest the women for failure to comply with an officer’s orders; 3.) arrest the women for resisting arrest; and/or 4.) confiscate and/or break the women’s cameras. Of course, this says far more about my lowered expectations for police conduct than it does about the virtues of this particular police officer.

      1. 5) drive to their houses and shoot their dogs.

      2. I thought the police officer did pretty well overall. He was wrong about the wiretap laws but he didn’t push it. He seemed mostly interested in keeping two parties that were antagonistic to each other separated and keeping the peace. He didn’t try to play the tough guy and didn’t let the situation escalate.

  9. 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).

    Emphasis mine.

    Absolutely no. Wrong, wrong, wrong.

    The officer—acting in his official capacity in a public place—can not have more right to protect the interaction than the private citizen being inconvenienced.

    No way in hell.

    People are not things owned by the government, not are right boons to be handed out at its whim.

    When they put on the blue suit and take up the badge the police assume the power to detain and arrest but also the responsibility to use these powers with care and wisdom and to submit to public review of their official actions to insure that they do.

    Anything else is tyranny.

  10. Nothing that a cop does qua cop is private. Period. So filming interactions with police is legal in all states that have “privacy” exceptions to blanket wiretap laws.

    Further, any law that makes it illegal to record a cop interacting with a citizen is unconstitutional, because it makes it illegal for a citizen to prepare a defense against potential criminal charges and is thus a violation of due process.

    This ain’t rocket science.

  11. Other than being wrong about the wiretap law, the cop was pretty damn reasonable, and the fact that he did not arrest the lawyer lady means that he probably did know the wiretap law and was bluffing.

    1. I thought so as well. I’m also inclined to agree with Fist of Etiquette regarding the difficulty of enforcing complicated and nebulous laws. Police abuse of power is awful, but we also put a lot of high expectations on LEO. They have a difficult job to do, and though I will criticize them when wrong I also can empathize with their situation.

      My interpretation of the video is also probably colored by my own biases. They are there to protest a “cruel and illegal live pigeon shoot”. I have a hard time sympathizing with animal rights activists in general, and there is a lot of anti-gun rhetoric throughout the video as well. I was not convinced at all by the video of the Mercedes side-swipe either. That said, the gun club guy was very stupid for spouting off on camera like that and giving more ammunition for gun-grabbers on youtube. In everything firearms related, you have to be 100% polite and calm. Anything less helps the prohibitionists.

    2. Yeah, so reasonable to bluff the person was in violation when he knew or should have known better…

      So go back to having sex with officers.

      1. Have you seen “Police Women of Broward County”? Ummmm, sex with officers.

    3. I’m guessing he decided to become a lot more reasonable when he saw 2 people recording him.

  12. Wow, she ate that guys lunch! Hilarious and bravo!

  13. You could just see the smoke coming out of that dude’s ears as he was trying desperately to figure out what to say to that lady next. I fully expected him to next say, Ralph Cramden style, “hamina hamina hamina hamina…”

  14. Interesting site on a closely related issue: photographing cops in public:
    http://carlosmiller.com/

  15. We need to disarm the people. It’s the only solution.

    1. AND we should all ride rainbow-colored unicorns to work to save the planet too.

  16. These philadelphia women are trying to use the power of the state to stomp on people’s private behavior in a private club on private property. No libertarian issues with that aspect?

    1. Yes, they are cunts. Never the less, they have a right to video tape the cops.

  17. Here’s the thing, COPS ARE ALLOWED TO LIE! A cop can tell you any kind of fantastical story they can think up. But if you lie to them you go to jail.

  18. Club Courtesy; “go fuck yourself you rotten cunt”.

    What’s wrong with that, I say that to my wife everynight.

  19. I’ve refused to self identify and my wife has refused officers entry into our house. Man do they get pissed when you not only know your rights and the law, but know their legal limitations.

  20. PA gun club is a pretty shitty club for canned pigeon shoots. Then again any canned shoot is bullshit. But it’s those retards right to do it and the ladies right to film their asses doing it if they can from property they can get consent on.

  21. Probably the lone dissenter here, but I thought the officer acted professionally. He was civil, polite, even. She was argumentative – her right, but not very smart – and pushed him as far as she could in the hope, I think, he would arrest her. Lawyers are natural assholes so this isn’t surprising though. People often “don’t think they are violating” the law and many times get their asses arrested because the officer thinks otherwise. That’s ultimately sorted-out in court as it should be and not along the side of a busy road.

    The recording of officers is indeed a murky topic, but this incident didn’t add a thing of clarification to it.

  22. The ambiguity of the laws on recording law enforcement officers in their line of duty points out once again that laws selectively enforced and loosely interpreted by law officers and the court produce the same result as no law. The whims of those with the power become the basis of who will be held accountable and who will be given a pass.

    1. “…. the same result as no law.” I would say, more precisely, the same result as tyranny. And the criminal and regulatory codes that control our every move these days are filled with such laws, unfortunately.

  23. Ideally, all police activities should be recorded (audio and video) and securely archived. All dashcam video and audio feeds should be streamed live to the Internet. The same should be a licensing requirement for private security firms and special police operating in public places.

    Video is easy and cheap, as juries will easily appreciate. Defense lawyers need to step up and start using the lack of video evidence to cast doubt on the competence and truthfulness of police departments. And internal affairs investigations should be required to note the lack of relevant video as willful withholding of evidence on the part of the officer.

  24. Wow PA got something right for once! I carry an mp3 player with me to covertly record all police encounters. How the hell is it legal to record things in public, the public domain, but not when its the police. In those states that make it illegal, how is it that they can record us with their dash cams and street cameras but we aren’t aloud to record them?

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