by Eric Martin
Wow. Just wow.
In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.
Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.
The legal justification for arresting the "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.
Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law - requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."
The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler's license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.
In short, recordings that are flattering to the police - an officer kissing a baby or rescuing a dog - will almost certainly not result in prosecution even if they are done without all-party consent. The only people who seem prone to prosecution are those who embarrass or confront the police, or who somehow challenge the law. If true, then the prosecutions are a form of social control to discourage criticism of the police or simple dissent. [...]
A recent arrest in Maryland is both typical and disturbing.
On March 5, 24-year-old Anthony John Graber III's motorcycle was pulled over for speeding. He is currently facing criminal charges for a video he recorded on his helmet-mounted camera during the traffic stop.
The case is disturbing because:
1) Graber was not arrested immediately. Ten days after the encounter, he posted some of he material to YouTube, and it embarrassed Trooper J. D. Uhler. The trooper, who was in plainclothes and an unmarked car, jumped out waving a gun and screaming. Only later did Uhler identify himself as a police officer. When the YouTube video was discovered the police got a warrant against Graber, searched his parents' house (where he presumably lives), seized equipment, and charged him with a violation of wiretapping law.
2) Baltimore criminal defense attorney Steven D. Silverman said he had never heard of the Maryland wiretap law being used in this manner. In other words, Maryland has joined the expanding trend of criminalizing the act of recording police abuse. Silverman surmises, "It's more [about] ‘contempt of cop' than the violation of the wiretapping law."
3) Police spokesman Gregory M. Shipley is defending the pursuit of charges against Graber, denying that it is "some capricious retribution" and citing as justification the particularly egregious nature of Graber's traffic offenses. Oddly, however, the offenses were not so egregious as to cause his arrest before the video appeared.
To be blunt, our politicians and policymakers are overly deferential to police officers and overly concerned with establishing "tough on crime" credentials. As a result, they are far too often hesistant to establish common sense regulations and checks on abuses of power, not to mention being unduly wedded to harsh sentences for non-violent offenses (see, ie, the disastrous "War on Drugs").
But the above cited abuse of power is unjust, undemocratic and fails the standards of any proper liberal society. It would be nice if our leaders had the courage to actually do something about it.