In Police Officers Don’t Check Their Civil Rights at the Station House Door, Radley Balko discusses several cases of citizens charged with crimes for videorecording police. He includes motorcyclist Anthony Graber, who videotaped an undercover cop emerging from an unmarked car with his gun drawn.
The debate over whether citizens should be permitted to record on-duty police officers intensified this summer. High profile incidents in Maryland, Illinois, Florida, Ohio, and elsewhere spurred coverage of the issue from national media outlets ranging from the Associated Press to Time to NPR. Outside the law enforcement community, a consensus seems to be emerging that it’s bad policy to arrest people who photograph or record police officers on the job.
Nevertheless, several such cases are moving forward.
Joseph Cassilly is the Harford County, Maryland state’s attorney. He’s currently pursuing felony charges against Anthony Graber, who was arrested last April for recording a police officer during a traffic stop. Maryland is one of 12 states that require all parties to a conversation to give consent before the conversation can legally be recorded. But like nine of those 12 states, Maryland also requires that for the recording to be illegal, the offended party must have had an expectation that the conversation would be private. To bring charges against Graber, Cassilly would not only need to believe that on-duty police officers have privacy rights, but in the Graber case in particular, that a cop who had drawn his gun and was yelling at a motorist on the side of a busy highway would, also, have good reason to believe the entire encounter was private. This seems all the more absurd given that motorists in such a situation clearly don’t have any reasonable privacy expectation. Anything they say during such a traffic stop is admissible in court.
“The officer having his gun drawn or being on a public roadway has nothing to do with it,” Cassilly says. “Neither does the fact that what Mr. Graber said during the stop could be used in court. That’s not the test. The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear.”
If true life is anything like The Wire, I can see why they want privacy.
Crawford County State’s Attorney Tom Wiseman is currently bringing five felony charges against Michael Allison, a 41-year-old construction worker who recorded police officers and other public officials he thought were harassing him. …
“The only person doing any harassing here is Mr. Allison, who was harassing our public officials with his tape recorder,” Wiseman says. “They may have problems with some bad police officers in some of your urban areas. But we don’t have those problems around here. All of our cops around here are good cops. This is a small town. Everyone knows everyone. If we had a bad police officer here, we’d know about it, I’d know about it, and he’d be out. There’s just no reason for anyone to feel they need to record police officers in Crawford County.”
IOW, you can trust us – we’re the good guys.
But what about cases where video clearly contradicts police reports, such as the McKenna case in College Park?
“You have 960,000 police officers in this country, and millions of contacts between those officers and citizens. I’ll bet you can’t name 10 incidents where a citizen video has shown a police officer to have lied on a police report,” [Jim Pasco, executive director of the Fraternal Order of Police] says. “Letting people record police officers is an extreme and intrusive response to a problem that’s so rare it might as well not exist. It would be like saying we should do away with DNA evidence because there’s a one in a billion chance that it could be wrong. At some point, we have to put some faith and trust in our authority figures.”
I don’t buy any of these rationalizations because I expect a police officer to be a public official not the Batman, but you can make up your own minds. Balko’s is a good rundown, read the whole thing.
At the federal level, any information that is knowingly or intentionally revealed to another person is not subject to a reasonable expectation of privacy unless it is "privileged" (i.e., Husband/wife, Priest/penitent, Doctor/patient, or Attorney/client.) Put more simply, there is no "reasonable expecation of privacy" in any two-way conversation with respect to the other party. That's why "wearing a wire" is permitted in federal investigations without a warrant.
Conceptually, this is easy to understand: The technology (that is, the recording), is simply doing what the person could do on his own. If Brown could say "on xx date at XX time, officer Smith approached me with a drawn gun and said I was under arrest." Smith has no expectation that his communication with Brown was privileged, and Brown can testify in court as to the conversation he had with Smith. So, Brown can testify as to what Smith told him, why can't Brown record the conversation and play it back later? After all, the only thing the recording is doing is what Brown could do himself if he wanted.
That's why most states in the US are "one party" states, where only one party to a conversation needs to consent in order to record it without a warrant.
You'd think there would be a bit of an outcry in a true-blue state like Maryland. You'd think the usual bleaters like the ACLU would be pushing to make Maryland a "one party" state. (Which is actually a good idea.)
What's interesting is how politically blue(ish) most "two party" are…
I suspect that wiretapping scares the hell out of big city politicians, hence two party laws.
Invariably the only persons who complain about one-party consent audio recording are criminals caught in the act and Police officers under similar circumstances. Strange bedfellows. That's why I call such all-party consent laws Police and Predators Preservation Acts. Since one -party consent audio recordings and those of conversants having no reasonable expectation of privacy are lawful under 18 USC 2511 2 (d), no Federal court will uphold a felony conviction for a one-party consent audio recording not made for a criminal or tortious purpose. If I'm barking up the wrong tree and a Federal court has upheld such a conviction, please let me know and send me back to the kennel without my Mighty Dog.
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