Can we imagine what might have happened had someone not pulled out their video camera that they had just purchased to film the beating of Rodney King back in 1991? It’s not difficult to imagine, Mr. King’s claims of police brutality would have fallen on deaf ears and the officers involved never would have been held accountable, such as they were.
We have all wondered what would have happened had the incident involving the Galvan Brothers been filmed. We can see the permanent life-altering damage on Ernesto Galvan’s face, but we do not know how it got there and probably never will. In the coming months and years, a civil court will have to weigh out whether the police exceeded their authority and violated the rights of Mr. Galvan. Had a video camera been present, we might have had the DA pursue the police rather than the victims in this case.
How can we have accountability if we are not even allowed to record an incident for review by the public or by other officials?
And yet, that is exactly what is happening. In Maryland, Anthony Graber faces up to 16 years in prison for violating state wiretap laws because he recorded video of an officer drawing a gun during a traffic stop.
According to the ACLU, once the Maryland State Police “learned of the video on YouTube, Graber’s parents’ house was raided, searched, and four of his computers were confiscated. Graber was arrested, booked, and jailed. Their actions are a calculated method of intimidation. Another person has since been similarly charged under the same statute.”
They continue, “The wiretap law being used to charge Anthony Graber is intended to protect private communication between two parties.”
According to David Rocah, the ACLU attorney handling Mr. Graber’s case, “To charge Graber with violating the law, you would have to conclude that a police officer on a public road, wearing a badge and a uniform, performing his official duty, pulling someone over, somehow has a right to privacy when it comes to the conversation he has with the motorist.”
Time Magazine reports, “In the Graber case, the trooper also apparently had reason to want to keep his actions off the Internet. He cut Graber off in an unmarked vehicle, approached Graber in plain clothes and yelled while brandishing a gun before identifying himself as a trooper.”
In Illinois, the police may audio record any conversation in a public place, but no one else may record their conversations—among themselves or with citizens they interact with, no matter how audibly—in a public place; and to do so is a felony.
A federal judge dismissed a First Amendment challenge to this law. That is right, a federal judge.
According to the Federal Judge, this not a “newsgathering function” protected by the First Amendment.
The judge writes: “The ACLU has not alleged a cognizable First Amendment injury. The ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record. Cf. Potts v. City of Lafayette, Indiana, 121 F.3d 1106, 1111 (7th Cir.1997) (‘there is nothing in the Constitution which guarantees the right to record a public event’). Amendment would therefore be futile….”
They continue, “The ACLU intends to audio record police officers speaking with one another or police officers speaking with civilians. The ACLU’s program only implicates conversations with police officers. The ACLU does not intend to seek the consent of either police officers or civilians interacting with police officers. Police officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants. The ACLU has not met its burden of showing standing to assert a First Amendment right or injury….”
Moreover, the suit is dismissed with prejudice, “Amendment would be futile. The ACLU has not alleged a constitutional right or injury under the First Amendment. Rather, the ACLU proposes an unprecedented expansion of the First Amendment…”
Wow.
If you plan to record police in California, you are in better shape, at least for now. But police have used anti-eavesdropping and anti-wiretapping laws to legally arrest civilians who have recorded police officers performing their official duties in public using California Penal Code section 632.
California’s wiretapping law has a two-party consent clause, which makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation.
However, the statute specifically applies to “confidential communications” where one of the parties has an “objectively reasonable expectation that no one is listening in or overhearing the conversation.” Does this apply to police incidents? Difficult to know and the law may not be completely settled.
On the Consumer Advocate site, a law clerk writes, “All-party consent statutes are often applied too broadly by extending protection to conversations that have very low expectations of privacy. California courts have identified some of these situations, such as while under valid arrest in a police car, in jail, at a non-confidential business meeting, when expressing an intent to violate the law, and at a meeting in a busy restaurant.”
He continues, “Another bar to criminal liability for recording police officers in public is the newsworthiness test, which has been held to be a full defense against other privacy-based offenses.”
Furthermore, “The California Supreme Court recognizes that truthful publication is shielded from liability if ‘(1) it is newsworthy and (2) it does not reveal facts so offensive as to shock the community notions of decency.” Briscoe v. Reader’s Digest Association, Inc., 4 Cal. 3d 529, 541 (1971). California courts use the following factors to determine newsworthiness: (a) the social value of the facts published; (b) the depth of the article’s intrusion into ostensibly private affairs; and (c) the extent to which the individual voluntarily acceded to a position of public notoriety.’ Id.”
He writes, “As noted by Chief Justice Marshal, the press has a constitutional duty to act as a watchdog of the police, so recordings of police officers have high social value. Police activities in public are not private, so there is no intrusion into private affairs. Police officers are constantly observed by and interact with the public, so their public notoriety is voluntary. Thus, police activities in public are newsworthy. If police activities shock the community notions of decency, these activities should probably be halted. Any state with a similar newsworthiness exception should not find public recordings of police officers to be criminal offenses.”
Back in June 2010, the Examiner wrote, “California law specifically allows police officers walking up to your vehicle to carry a concealed recording device (audio or video) and tape the entire conversation that goes on between the cop and the suspect. However, if the individual in the car secretly records that same conversation, that individual would be in violation of the law and subject to charges.”
Flex Your Rights, which is an organization that informs citizens of their rights during police encounters advises people, “Videotaping or photographing police in public places is usually legal, so long as you don’t interfere their ability to do their job. Nonetheless, police generally don’t like being watched or documented and will often respond aggressively. “
“Citizens are frequently arrested for videotaping police, and the charges are later dropped. Regardless, video is uniquely effective in revealing guilt and exonerating the innocent — for both police and citizens,” they continue. “If you’re videotaping or photographing police, make sure you don’t interfere. If you’re arrested, “obstruction” is the most likely charge, and you’ll want to be able to defend against it.”
The bottom line at this point is that videos are becoming more commonplace as the number of people with videotaping capacity on their phones has increased. The result is that we are likely to see an increase of such arrests, and the law in California and elsewhere will have to become more clear.
—David M. Greenwald reporting
The laws controlling tapping a phone for the sake of personal privacy; well, I can readily understand the intent of such legislation.
But extending such statutes to prohibiting filming of public officials in public areas, while serving the public, makes no sense to me at all. Possibly the subsequent posting of such filming on a website–with malicious editorial content–COULD have violated some kind of personal protection law. But even that thought is an expansion of wiretapping legislation, and that’s being kind. Unless there is more to this story than being told here, these statutes have no hope of surviving a well-constructed appeal.
Here’s a view from the other side, one that is almost never told. Many of today’s patrol officers carry personal recording and video devices on their person and document public contacts that have potential for subsequent complaints or lawsuits. Stories abound within the police culture of conclusive rebuttal of allegations against a police action, thanks to a personal recording submitted by the accused officer or companion. I could relate two examples immediately.
You have all seen police video recordings on television. They are limited to flashy stuff like vehicle chases and belligerent drivers. Have you ever thought why one doesn’t hear the police unions objecting to these installed cameras as a “condition of employment” clause in the labor negotiation process? Arguably, they are invasive and threatening.
The reason is simple. Poll a group of law enforcement officers as I have, and ask them whether they would benefit or be harmed by recording them in the performance of their duties. The vast majority would support the idea because the vast majority of police officers take pride in the way they do their job fairly and efficiently, and lawfully.
Virtually none of the proper police behaviors are captured in any form. Few are even known by police supervisors, and almost none are reported to the public. Yet they happen hundreds of times daily in even the smallest department. Video recordings would confirm this bold but confident statement.
For internal training purposes alone, the positive implications of video documentation are staggering. If it were known that every police action is recorded, citizen complaints would drop by at least a third, criminal convictions would increase substantially, and rouge officers would find another occupation.
Agree with Phil mostly. However, wiretapping laws protect politicians, in order to wiretap it must be very specific crimes, one crime wire tapping is not authorized is Political corruption, how convenient the law makers exempted themselves so they cannot be taped.
As for cops recording, technically cops can only record in criminal matters, they cannot record their girlfriend or for personal reasons, it is just that cops leave on recorders since most of their actions are criminal or enforcement in nature and of course, no DA is going to go after a cop for this crime since they violate routinely by recording when it is not criminal. It is just accepted that cops record and no one enforces minor violations.
I also think the wiretapping law specifically refers to audio, it does not apply to video? I think. So if you video tape without audio, I do not think you are committing any crime.
Every store, bank, public intersections, gov building, homes and other places has video set up, but most do not include audio. There have been crimes when boyfriends video taped their girlfriends having sex and the girls want charges filed, if there was no audio, no crime, again I think this correct unless the laws have changed.
If you are in a public place you consent to your actions being public and no expectation of privacy can be claimed. I also think there is case law that if a tone or beep is heard in a phone call it is presumed you are being recorded, therefore you consent since you do not hang up. Many business get by this by saying they are recording for quality assurance. So they are not Secretly recording you. I also think that the cops would have to claim one a expectation of privacy, tough since he is a public officer, operating in a public place, doing public business. And then I think he would have to prove the recording was done without his knowledge or consent, so if a person were to say you are being recorded there is no surreptitious taping, however, if you tell the cop you recording and he objects and does not consent or overtly denies consent, then you would get into obstruction of his duties and get into other crimes. However, I think if you were to say you are recording this for your protection and ensure you get the facts right later for any court appearances, you might have a loop hole.
This law is as clear as mud and it all depends on the DA willingness to abuse the intent of the law or to enforce it fairly. California law is based on spirit and intent, NOT the letter of law, so the courts can put this abuse charging in check if they want, probably won’t be done at local level but appeals level are more likely to stop it.
Like the cops always say when you refuse to let them search your car,”What’s the problem, if you don’t have anything to hide?”
I’m not a lawyer, but as I have read the words and watched the various videos associated with examples of this issue, two questions come to mind:
1) I can’t help but wonder whether Agency Law doesn’t apply. The police are employed by the public, paid by the public, and acting as agents of the public. There appears to be a contractual relationship between citizens and police. Given that we are paying them to act in our behalf, don’t we have the right to determine if their actions are consistent with their “public contract”?
2) As best as I can tell, “photographing” an event is technologically removed from any “wire” involved in the communication. Therefore, one has to wonder where any “tapping” exists.
As I read Roger Rabbit’s comment above about the video/audio issues, I couldn’t help but wonder whether this isn’t a situation where technological change wasn’t anticipated when the law was originally written, when still photography was the technological medium that the press used to document news. Video without audio is in effect a series of individual still photographs, and is therefore protected. Since each individual still photograph is a snapshot in time, audio of that instant isn’t either possible or meaningful.
Bottom-line, our lawmakers need to bring the law into some consistency with the advances in technology.
[quote]Like the cops always say when you refuse to let them search your car,”What’s the problem, if you don’t have anything to hide?” [/quote]
Excellent point.
Phil: One of the few times I agree with most everything you say. It’s a reason I never understood reluctance for oversight, the vast majority of the police perform their job correctly the vast majority of the time. A few times you will catch a mistake and very few times you will catch actual misconduct. To me such devices protect both the public and the individual officers who are performing their duties as they should.
From baltimoresun.com: “Judge says man within rights to record police traffic stop
Charges alleging wire tap violation thrown out
September 27, 2010|By Peter Hermann, The Baltimore Sun
In a decision that could make it easier for citizens to record police officers in Maryland, a Harford County judge ruled Monday that state police and prosecutors were wrong to arrest and charge a man for taping his own traffic stop and posting it on the Internet.
Circuit Court Judge Emory A. Plitt Jr.’s ruling helps clarify the state’s wire tap law and makes it clear that police officers enjoy little expectation of privacy as they perform their duties.
“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” Plitt wrote. “When we exercise that power in a public forum, we should not expect our activity to be shielded from public scrutiny.””
“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” Plitt wrote. “When we exercise that power in a public forum, we should not expect our activity to be shielded from public scrutiny.”
Sounds 100% correct to me.
From wordpress.com: “ACLU sues Illinois over absurd law forbiding recording of cops
Posted on August 25, 2010 by Orwell’s Dreams
By Carlos Miller
Photography Is Not A Crime
There’s been a misconception in the media lately about it being illegal to videotape cops in three states; Maryland, Massachusetts and Illinois.
That’s not exactly true.
In Massachusetts, it is illegal to secretly record anybody without their consent, but there is no law against openly videotaping anybody in public with or without their consent, including cops. In fact, charges have been dropped against people who have been arrested for videotaping cops in public in Massachusetts.
In Maryland, state police and a certain prosecutor treat it as if it is illegal but another state attorney as well as the attorney general disagree that it is illegal to videotape cops in public. The debate should be settled entirely by the time Anthony Graber goes to trial on October 12. Also, the ACLU, which is backing Graber in this case, is asking the law to be further clarified.
That leaves us with Illinois where Radley Balko reported that it is illegal to audio record cops, even if they happen to be in public with no expectation of privacy.
Fortunately, the ACLU is now trying to change this law after filing a federal lawsuit in Chicago Wednesday to challenge the Illinois Eavesdropping Act, according to the Chicago Tribune:
Unfortunately, the article also builds on the misconception that it is illegal to record cops in public in other states.
Illinois is one of only a few states, including Massachusetts and Oregon, where it is illegal to record audio of conversations that take place in public settings without the permission of everyone involved.
In Oregon, it is not illegal to record conversations that take place in public settings because they would not have an expectation of privacy. This issue was clarified in a memo from the Beaverton City Attorney last month that was distributed to police departments, which didn’t stop a certain police chief to vow continuing arresting people videotaping officers in public.
The ACLU lawsuit mentions six Illinois residents who have faced felony charges for recording cops in public, including Charles Drew, a street arrest who is still awaiting trial for having recorded police who were shaking him down for trying to sell art without a permit.
Coincidentally, I received an email yesterday from Jeremy Lindsey who was investigated by Granite City Police Chief Rich Miller for posting videos of cops he shot in public. Lindsey ended up removing the audio from two videos in order to comply with the law.
This is what the chief told him in an email.
It is illegal to record a persons conversation without permission. In fact we are reviewing your post yesterday of Officer Klump to see if you violated he law. I am aware you have altered it today. I have the Original post. Also when at a call for service you should refrain from interfering or you are subject to arrest for obstructing. Chief Miller
While it is a step in the right direction for the ACLU to attempt to change state laws in compliance with common sense First Amendment laws, we need to go a step further and pass a national law that specifically allows citizens to videotape cops in public as long as they are not interfering.
The resolution introduced by Democratic Congressman Ed Towns last month is the first step in doing this. The National Press Photographers Association, which got involved with our Metrorail escapade, is also asking Towns to change his resolution to a Congressional Bill.
According to last month’s NPPA press release:
Despite consistent court rulings protecting the First Amendment rights of both citizens and the media to take photographs in public places, and despite many law enforcement agencies spelling it out in their official policies, the officer on the street either doesn’t get the word or decides to act on his own in the name of “security” or “terrorism laws,” often citing rules that don’t exist and exerting authority that’s non-existent. And recently in some states police have started citing old wiretapping laws that have been on the books for decades as their excuse for ordering photographers to cease videotaping officers as they’re doing their jobs in public, either during traffic stops or street arrests or while interfering with photographers who are breaking no rules and who are posing no threats to safety.
“It is extremely disturbing that some states have misrepresented the intent of wiretapping laws and modified them to affect news photographers and everyday people who are photographing or videotaping police actions in a public place,” NPPA president Bob Carey wrote to Rep. Towns today.
“We believe that such misuse of these state laws are unconstitutional and need to be addressed at both the state and national levels. NPPA has been dealing with police interference with visual journalists in public places for years. We are pleased that your Resolution is currently before the Judiciary Committee and we stand ready to testify if needed.””
“Can we imagine what might have happened had someone not pulled out their video camera that they had just purchased to film the beating of Rodney King back in 1991?”
[url]http://en.wikipedia.org/wiki/Rodney_King[/url]
Well…
– The media would not have overplayed and sensationalized parts of the tape that enflamed racial tensions and led to riots that resulted in 53 deaths, 2,383 injuries, more than 7,000 fires, and damages to 3,100 businesses, and nearly $1 billion in financial losses.
– The county of L.A. would not have had to spend millions on the case against the four officers.
– There would have been no civil suit filed by King against the city of L.A, and no $3.8 million award given to Rodney King.
– King would not have become a celebrity… and a role model for others making similar life choices.
I’m sorry, but I fail to see this as a positive event as I think the question infers. It really is too bad that the L.A.P.D didn’t have a camera recording the entire episode that led to King’s beating so at least the story would have had some balance. Was the beating racially motivated? That is the media template, and the conclusion of US Department of Justice. However, I keep thinking of that white kid about King’s size behaving the same way. Assuming he received the same beating (and I think he probably would have), might this entire sad episode played out quite differently?
To Jeff Boone: I concede some of your points, but ultimately there was a problem in the LA Police Dept that needed to be addressed (Darrel Gates). The LA Police Dept has repeatedly been caught on tape doing unconscionable things to innocent civilians. That is not a good thing. IMHO, police should routinely videotape, and civilians should be able to videotape any police activity in public as long as it does not interfere w police operations…
” police should routinely videotape, and civilians should be able to videotape any police activity in public as long as it does not interfere w police operations.
Elaine: This is fine. The problem is the media playing only the parts of the video that tells the sensational part of the story. Most people know that the L.A.P.D. brutally beat Rodney King. But few know of his reckless drunken high-speed attempt to elude the police, and his belligerent and aggressive behavior when the cops tried to take him into custody.
If I trusted the news media to provide a balanced story surrounding video footage, then I would be in support of more video being taken. However, the media makes it too risky… whether intentional, or unintentional, the template is too often “bad cops & poor victimized suspect”. It only takes one expertly-edited bit of video footage showing one out of many thousands of police-public encounters to corrupt the psyche of the public. Photos are powerful, video is more powerful… yet the media displays video with reckless abandon. I blame the media for the LA riots, not the LAPD.
Yeah, generally videotaping police would seem to be OK, if not a good idea.
The main problem is potential editing: i.e. editing out events that show the police in a good light & suspect in a bad light; or conversely editing out events that show the police in a bad light & perps in a good light.
i.e. lack of quality control as to what is filmed and what is edited out of the final product.
Also with digital editing, is it possible to doctor a digital recording in a way that is difficult to detect?
Police do not want to be accountable to the people they serve.
But there is a reason they would be hostile against such things like video taping the police because video taping can be edited and fixed into suggesting something completely different by those who really don’t care about justice but really want injustice.
Injustice because they could easily portray a peace officer who is actually doing the right thing in a negative light, therefore creating a negative public image. This done in mass could create a public threat because police will no longer fulfill their duties with conviction of rightness but will hold back for the sake of self preservation.