Out of Control on Videotape

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.

Comments

[wonkie]

One of the weird aspects of this is that police routinely tape themselves as a means of defense against false accuusations. That's where all those America's Dumbest,Funniest, Worst Car Chases Etc videos come from. In other words the only reason for making videos illegal is to cover up police misbehavior. There can't be any other explanation.

[Slartibartfast]

There's nothing here I can disagree with, Eric. I'm a little shocked that the courts are playing along with this to the extent that they are, though.

[Eric Martin]

Me too slarti.

Also: Mass? I didn't think I'd see Mass on the list of states with these types of laws.

[publius]

I'm wondering if there isn't a First Amendment issue here -- maybe in the realm of right of "newsgathering"? I mean, this would be even more troubling if this person had been a journalist/blogger or something.

[Eric Martin]

blogger? feh.

[Slartibartfast]

I can see needing to get permission for e.g. widespread broadcast for profit. I'm wondering how long America's Funniest Home Videos is going to be able to get away with showing videos of people who have not signed consent waivers.

[russell]

Also: Mass? I didn't think I'd see Mass on the list of states with these types of laws.

MA is a weird state.

Others have noted that it's not really all that liberal, it's just largely Democratic.

As a non-native living here, my observation is that it's pretty tribal for such a relatively small state. Cops and the criminal justice system are definitely one of the tribes.

[Donald Johnson]

Publius beat me to it--you'd think there would be a 1st Amendment issue lurking somewhere in the vicinity, though not being a lawyer I don't know if any such argument could be made.

It does seem like the sort of law any good police state would want to have on the books. It goes along nicely with what digby is always writing about--the normalization of torture via Taser by the police of people who don't pose any serious threat.

[John Thullen]

This would a job for James O'Keefe and Andrew Breitbart if they were really interested in investigative journalism rather than filming the inside of their own colons.

[nous]

The slide towards fascism continues.

[Eric Martin]

I'm wondering how long America's Funniest Home Videos is going to be able to get away with showing videos of people who have not signed consent waivers.

Do they actually do this now? Seems extremely reckless from a legal perspective. I would be shocked to learn that those submitting videos don't sign a release.

[Slartibartfast]

It's not those submitting that I'm referring to. It's those shots of an entire wedding that clearly took place a few years ago; you know there's just no way to go back and get consent of all of those being taped.

[Julian]

Filming the inside of your colon carries its own prosecution risks, if the police rape you with a plunger and they don't consent to filming.

[Eric Martin]

gotcha slarti.

[Julian]

A broken broomstick, not a plunger, sorry. The plunger was shoved in his mouth.

[John Thullen]

I look forward to the class action suit from several million guys across America who have appeared on Funniest Home Videos doubled over from pain after their four-year-olds hit them in the groin with various pieces of sporting equipment.

[Slartibartfast]

Or a class action suit from the thousands (possibly millions) of people who have had redlight camera video used as evidence against them, without their consent.

[Eric Martin]

Now that's a good point slarti.

[Slartibartfast]

Thanks! It happens so rarely, I thought I'd share.

[Eric Martin]

Your quarterly quota has been met!

;)

[MobiusKlein]

I know you aren't allowed to record your kid's IEP ( for kids with special needs) without consent and the school district would then take their own recording.

Makes it hard to hold folks to what you think they promised if there is any confusion. It would be better if official interactions with govt officials were routinely taped always.

[Sebastian]

You really shouldn't be surprised about Mass. It has been in the forefront of War on Drugs related atrocities for at least a decade. And for whatever reason (it isn't obvious to me from the West Coast) Boston especially has been one of those cities that takes deference to police craziness to whole new levels. I believe it was one of the very first to pervert the anti-wiretapping laws into a police shield.

[Hogan]

I didn't think I'd see Mass on the list of states with these types of laws.

Well, the law they have on the books is not the law that's being enforced. I think it's legitimate to prevent surreptitious taping of private conversations, which is what those laws are intended and written to accomplish. It's just that the police are trying to carve out a special arrangement for themselves such that the law also applies to (some) police activity in public places, and judges are letting them do that.

[Eric Martin]

Seb: I guess so. Chalk it up to me just not knowing these things.

Hogan: Good point.

[Turbulence]

It has been in the forefront of War on Drugs related atrocities for at least a decade.

Just out curiosity, what atrocities did you have in mind?

[Hartmut]

Remember, the true scandal of Abu Ghraib was that someone made those photos public and the primary reaction was to ban the use of any private gadget able to make recordings in such places. Also iirc Obama got attacked for that bill he sponsored while still in Illinois that made recordings of police interrogations mandatory.

[Jeff]

It's those shots of an entire wedding that clearly took place a few years ago; you know there's just no way to go back and get consent of all of those being taped.

I think they get consent from as many as possible and blur the rest. But I'm not sure.

[Turbulence]

Or a class action suit from the thousands (possibly millions) of people who have had redlight camera video used as evidence against them, without their consent.

I don't think red light cameras photograph people per se. They photograph vehicles and license plates. People have privacy rights while vehicles generally do not.

[Slartibartfast]

Ok, a more relevant example might be airport and other public-place security cameras.

Can people or can they not employ cameras in public places? Do police, municipalities and places of business have more rights than the rest of us do in that regard? If so, on what basis?

[Jeff]

Do police, municipalities and places of business have more rights than the rest of us do in that regard? If so, on what basis?

Yes, on the basis of "I SAY SO!!!!"

[Ugh]

Ok, a more relevant example might be airport and other public-place security cameras.

The key to those is, IIRC, that the anti-wiretapping statutes were all written well before the widespread availability of video cameras, and thus only apply to audio recordings, which is why none of those closed circuit security cameras record sound. They also usually contain exceptions for (lawful) law-enforcement wire-tapping.

This may have changed to the extent states have updated their anti-wiretapping laws.

[hairshirthedonist]

I'd guess they'd say (whoever "they" are)the basis for police, municipalities, businesses, etc. being allowed to use cameras would be demonstrable need. That doesn't mean I'd buy that as a basis for them but not everyone else, but I'd guess that's what it would be.

[Hogan]

I'm thinking the basis is more that police should never be accountable to anyone except other police for their behavior, therefore they should have a permanent and constant expectation of privacy while carrying out their duties. I forget the name of that legal principle, but it's Norman French for "What the hell are you looking at, dirtbag?"