More on Recording the Police

Monday, July 12th, 2010

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.)

Digg it |  reddit |  del.icio.us |  Fark

45 Responses to “More on Recording the Police”

  1. #1 |  goober1223 | 

    FYI: Cracked has a great (though over-simplified) article on how cops can legally screw with you: http://www.cracked.com/article_18620_6-completely-legal-ways-cops-can-screw-you.html.

    Too bad it’s not satire. :-(

  2. #2 |  goober1223 | 

    Oh, and #3 on the list is where filming cops comes in.

  3. #3 |  SJE | 

    Radley is spot on: you can go from constitutionally protected speech to FELONY based on some unclear, spurious, subjective basis.

    Think about that: a felony will get you disbarred from many activities, from teaching, medicine, law, etc. Many employers will not even consider you. It can be a basis for preventing you from leaving the country. Not to mention more than a year in prison. Is this the sort of power we should entrust to cops and prosecutors?

    A felony was supposed to be for those activities that were clearly wrong, like murder, violence, and robbery, and which clearly marked you as a “bad guy”. Misdemeanors were for violations of the law that required some sanction, but suggested you were not fundamentally “bad:” traffic offenses, shoplifting, public drunkeness.

  4. #4 |  Mark R. | 

    Was hoping for a clearcut smackdown but it was more like he just decided he really didn’t want to have to file a bunch of paperwork but kept believing he was correct. For a lawyer she didn’t give him much of an education on the case law.

    And as to the question: Why won’t you give us your name, we’re only putting it in our lil’ ole police report nothing to worry about…well when i’m doing something legal I don’t like showing up in publicly available police reports because, who know’s how that’ll be used 5, 10, or 20 years from now?

    The courts really haven’t caught on to the fact that in an age where information is free you really need to have control over what information about you is available. If an employer gets a hit during a screening of candidates that you were in a couple of police reports recently, guess who doesn’t make it to the interview stage?

  5. #5 |  BamBam | 

    “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?”

    Radley my boy, laws are purposefully vague so they can be contorted to apply to anyone at any time — do not disobey The State. Laws are reviewed by attorneys before being voted on by legislators, and many times are written by attorneys. They know EXACTLY what they are doing.

    Head I win, tails you lose — the name of the game.

  6. #6 |  Kristen | 

    …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

    This is some of the most idiotic, illogical crap I have ever heard.

    So police have a privacy expectation dealing with people one-on-one or in “small” groups? How small? How many people? Does location matter? Who decides what the size of the group needs to be for the officer to expect privacy? Is it codified specifically in any law? What about 10 people? 7 people?

    (all these questions are rhetorical in case you felt like actually answering)

  7. #7 |  JS | 

    BamBam is right. The laws are vague so that they can lock you up if they feel like it.

  8. #8 |  Dave Krueger | 

    Pointing cell phone cameras at cops is like turning on the light in a den of corruption and brutality that has been operating in pitch darkness since the beginning of time. You can be pretty fucking sure they are not going to thank you for it.

  9. #9 |  arglebargle | 

    You don’t know where the line is?

    Thats easy.. the line is where they say it is.

    And even if you do know the law and successfully contradict a cop, then you obviously must be guilty of disturbing the peace, loitering and failure to obey.

  10. #10 |  Highway | 

    I think everyone realizes just how disingenuous the ‘Well, the charges were dropped’ is as an argument. As if somehow it makes everything better even though you were harassed by a cop, you were illegally detained and arrested, you had your information entered into whatever far reaching police and government database, and you have to deal with the consequences, from lost work time to future lost job opportunities, to future suspect status for being in police databases.

    This weaseling out crap that the DA’s are using is just part of the plan. If it’s murky, then the cops can continue to arrest people, continue to use that method of intimidation, as well as use that avenue of escalation (“Oh, now you’re ‘resisting'” as they get in a few revenge licks for you trying to ‘show them up’).

    Failure to be charged isn’t making it all better. That should be used as an indication to the cops that they shouldn’t be arresting for that. The DA’s not doing you some favor by not charging you with a crime you didn’t commit. They need to stop acting like they are.

  11. #11 |  Yizmo Gizmo | 

    “recording him by falsely accusing one of them of violating the state’s wiretapping law.”
    I love the way the cop throws this spooky threat out there and then backs down as soon as the lawyer, exuding confidence and
    chutzpah, bites it, chews it up, and spits it out.
    Hmmm..maybe next time the cop should try “Sedition” or “Witchcraft.”

  12. #12 |  Dave Krueger | 

    Hahaha! It’s no wonder cops don’t want people recording them. They’re afraid the entire world will find out how completely friggin’ stupid they are.

    I used to wonder why cops didn’t behave better when they knew they were being recorded, but it finally occurred to me that being an idiot isn’t something you can turn off just because there’s a camera running.

  13. #13 |  TC | 

    #1, filming any publicly paid servant should be out of the question LEGAL! They are on our dime, they are subject to OUR discretion! 100% of the time.

    This dudes attempt to draw a hair line between private and public property is total BS.

    But it does appear the challenge that created the contact is outta line! Some Animal rights group attempting to make some case for their movement because a bunch of folks like shooting targets? Maybe eventually live game as well.

    But of course this vid focuses on the officers conduct and not upon their own! When you create a situation of conflict you best be ready to deal with it. Do not expect LE to make your front legitimate! EVER!! Seems like the cop was trying to diffuse a situation.

    This is a far cry from invading one’s home in the middle of the night!

  14. #14 |  Kristen | 

    So because you disagree with the protestors’ message, TC, the whole stuff about the police officer being either ignorant or a liar is OK? The point of the video wasn’t whatever the hell they were protesting, it was the cop blatantly misrepresenting the law.

  15. #15 |  Homeboy | 

    When is Radley going to stop throwing bones to these authoritarian morons? By finding their deliberate lies not to be patent falsehoods, but rather mere “interpretations” of the law, he provides them with a tremendous gratuity. Likewise when he states that the law is “murky” concerning whether or not a public officer may expect personal privacy when exerting the state’s police powers upon a civilian in a public space. The law is not murky, and only an abject moron or a clinical psychotic could honestly find any expectation of privacy for a cop discharging his or her public duties. It infuriates me whenever Radley attempts to legitimize the dicta of lying bastards like this.

  16. #16 |  JS | 

    Highway “The DA’s not doing you some favor by not charging you with a crime you didn’t commit. They need to stop acting like they are.”

    Very well said!

  17. #17 |  perlhaqr | 

    Even if a police officer might hypothetically have some expectation of privacy from the public at large when “in a small group” (or whatever bullshit excuse that was) he certainly had no expectation of privacy from Graber. He was talking directly to the man.

    Even if the authoritarians wish to argue that police should be free from third party taping, they cannot possibly expect to have any expectation of privacy from the people they are directly interacting with.

    —-

    That said, it’s my fervent belief that anyone, anywhere, has the absolute right to record any on-duty public official. If you want to be a private citizen, stay off the public payroll. My belief will not, of course, prevent officialdom from abrogating this right on a frequent basis.

  18. #18 |  InMD | 

    Even assuming that the police have some reasonable expectation of privacy while in the scope of their public duties in a public place (something I don’t think should be readily conceded) I still don’t see how the Graber case could possibly fall into it. If a conversation you’re having with an officer can be used in court for any reason then I don’t see how any expectation of privacy can possibly exist regarding that conversation.

  19. #19 |  Phelps | 

    It’s times like this that I’m happy for the Texas standard — if one of the parties (which may be the one recording) are aware of the recording, it isn’t wiretapping. Full stop.

  20. #20 |  MattJ | 

    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.

    Of course they can, they just don’t want to because the truth isn’t what they prefer it to be.

    I’m in complete agreement that we should be able to record on-duty police, or even off-duty police as soon as they start acting in a LEO capacity. Perlhaqr’s reply brings something to mind, however… what if you’re recording 2 LEOs talking to a witness/suspect/whatever, and LEO #1 walks over to you and tells you to turn it off. You assert your rights, and he says that the witness/suspect/whatever is the one who wants the camera turned off. To get his/her privacy rights, does he/she have to ask the cops to take the conversation elsewhere? I can imagine a witness who is willing to tell the cops what happened, but unwilling to take a ride downtown to avoid having his words (which may well be an accusation towards a criminal) and face show up on youtube. Lineups usually have one-way mirrors so that suspects don’t know who fingered them. You get to face your accuser in court, not before, generally.

    Not that I think that most LEOs have a similar objection in mind when they threaten people who have cameras pointed at them.

  21. #21 |  EH | 

    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

    He’s just making it up. Police officers are allowed to lie, after all.

  22. #22 |  Big Chief | 

    I don’t think the video really meets the typical Balko standard. The police officer was clearly wrong about the wiretapping, but he backed down pretty quickly and never lost his cool. I wouldn’t mind dealing with him. He seemed like a pretty good guy trying to deal evenly with two parties who obviously didn’t care for each other. He seemed mostly interested in trying to keep the opposing parties apart and keep the peace.

  23. #23 |  EH | 

    He seemed mostly interested in trying to keep the opposing parties apart and keep the peace

    Which likely could have done without even approaching the camerapeople by telling Mr. Gun Ranch Man (or whatever he is) that they ain’t doin’ nothin’ wrong. He might offer some advice as to where the private and public lines are, but surely just as a courtesy.

    Unfortunately, the officer decided that the activists were dumdums, should have less power than the landowner in the equation, and proceeded to throw as much of his weight around as he could.

    The activist didn’t magically find his Widdle Teddy Bear button or back down, the officer continued to pursue the topic in the face of an obviously educated person, tenaciously trying to find any chink in the armor of the law that he could. Meanwhile, Old Man Cracker sits back on the hood of his car waiting for his order to arrive.

  24. #24 |  pushing back | 

    Very nice job by that lawyer. Cool, polite, firm. Extremely rare, and extremely difficult.

  25. #25 |  Kevin3% | 

    I tend to agree with the summation Big Chief put forward. Nothing terrible here just an attempt by LEO to sway (under color of law) the video-grapher from recording voice. The cops was not a complete dick-head as so often is the case.

    I also tend to agree with Homeboy @15; Radley, perhaps a show of anger or outrage, or even contempt occasionally would be appropriate when the boys in blue over step their “authority”.

    Having said that, “clarity” is the last thing prosecutors and cops want! That would set things on the road to accountability and we can’t have that now.

    And for all you aspiring video-graphers, bear in mind that the risk you take whenever interacting with the police is possible bludgeoning or even death. When an LEO violates the law they rarely suffer any consequences of substance. If they kill you they get an automatic paid vacation while the other members of their brotherhood corroborate their side of the story.

  26. #26 |  Chris Mallory | 

    Kristen #14,

    The voice over makes it very clear that the protests were what was being showcased. If they were on private property they should have been cited. You can bet damn sure if one of them had slipped and twisted their ankle, they would be suing the gun club.

  27. #27 |  Jeff | 

    Any chance of asking the readers if anyone could write a phone app to only record video or mute the audio?

    I’d buy it for my android phone.

  28. #28 |  EH | 

    Jeff: You could just say the audio is turned off.

  29. #29 |  freedomfan | 

    As much as the officer (especially as a “supervisor”) in that situation is an embarrassment in that he misrepresented the wiretapping law, we Agitator readers have seen police behave far, far worse in similar situations. The lawyer/videographer was right to hold her ground that there was no wiretapping violation taking place, but it seems like she could have been a little clearer by just saying, “There is no reasonable expectation of privacy here in this open, public space (where cars are driving by and I am talking to an on-duty, uniformed officer).” As much as anything else, I am curious if the officer would have pretended not to understand the distinction.

    On the other hand, I will at least say that I am pleasantly surprised the officer didn’t lose his temper and try to be more of a bully. He was calm and unagressive throughout. Maybe he would not have been if the camera hadn’t been rolling or if he hadn’t been dealing with someone obviously versed in the law.

    However, the main issue he was dealing with was the property owner’s claim that the two animal rights activists were trespassing on private property. I couldn’t tell from the video exactly what the property layout was, but it may well have taken place on a private drive (the entrance to the gun club?). If that’s the case, then I can’t completely blame the cop for taking the property owner’s complaint seriously. I know if I were a property owner and people were using my property to protest against me, I would expect the police to be able to get them to leave the property. The wiretapping issue was nonsense, but the trespassing issue might not have been.

    I guess I am saying this video is a good example of police misrepresenting the law to intimidate someone (even if he is fairly polite about it), but it’s not as terrible as those cases we have seen where some cop goes bonkers; starts yelling, cussing, and grabbing cameras; then roughs up and arrests the videographer for wiretapping, resisting arrest, obstruction, etc.

  30. #30 |  freedomfan | 

    EH,

    Jeff: You could just say the audio is turned off.

    You might want to be careful about that. If you lie to a cop, then you’ve given him an excuse to screw with you. In most places, lying to the police is a crime (even though they can lie to you). Jeff is better off by tracking down that app. And, of course, we’re all better off by getting a clear rendering from the courts saying it’s legal to record anyone acting (or claiming to act) under authority of law.

  31. #31 |  Kristen | 

    @Chris Mallory – the video also made it clear the women were on the public road before the police were called.

    I totally disagree with the goal of their protest, but I’ll be damned if anyone takes their right to do it.

    I just realized what the Maryland prosecutor meant when he said police can expect privacy in one-on-one or small group situations. It means that in a large group there are innumerable witnesses, so recording or not recording audio of an officer’s actions doesn’t really matter. But in one-on-one situations? Well, without audio it’s just the witness’s word against the cop’s, as video can be interpreted in many ways. Dashcam recordings with audio can always be “lost”.

  32. #32 |  EH | 

    If you lie to a cop, then you’ve given him an excuse to screw with you.

    I see your point, but I don’t see what angle this would take. What PC could the officer use (and would use, in a low-intensity situation like this) to search the camera? Furthermore, afterwards you could just say that the audio on the camera was turned off, but the digital recorder in your pocket with the hidden microphone wasn’t.

    But see, that’s where stupid policies and official misunderstandings lead us: citizenry having to lie (or lying, making it easier) to do legal things in the face of institutional incompetence.

    Well, without audio it’s just the witness’s word against the cop’s, as video can be interpreted in many ways. Dashcam recordings with audio can always be “lost”.

    I feel this is a grand opportunity for civil disobedience. We all know that whenever someone gets arrested for filming the police the charges are routinely dropped. With this knowledge, anybody with a spare 24hrs can vote for changing the law via use of police resources, causing a budget problem that anybody can fix in about one day.

    Furthermore to your point, I agree wholeheartedly and believe that is why there is such pushback on this. If an officer is doing something bad to someone, it’s best to have a witness. Better than a witness is a witness with a good memory. Better than a witness with a good memory is a witness with a contemporaneous document of the occasion, narrating their interpretation of what they are seeing. That don’t qualify as a fuzzy memory.

    we Agitator readers have seen police behave far, far worse in similar situations

    Correct, which is why a slippery-slope argument is perfectly apt. We already know where this leads.

  33. #33 |  dan | 

    I clearly remember from ComLaw that the supremes ruled that anyone can be photographed or recorded if the photographer is on public property and the subject is visable from the publically accessable location. It’s simple, if you’re in PUBLIC, there is no expectation of PRIVACY. Cops are “public servants” by definition, they perform their duties in “public”, they have no more right to prevent someone from recording them in public than any other citizen, which is zero.

    Of course there is also probably also some sort of “duty to withdrawl” clause to public taping, if you don’t want your picture taken in public you can not go to a location where the public is taking pictures, cops can’t avoid that since they’re on the job. However, cops should be held to a higher standard, if they don’t want their conduct recorded and distributed to the public, they need to improve their conduct.

  34. #34 |  Dave Krueger | 

    #25 Kevin3%

    I tend to agree with the summation Big Chief put forward. Nothing terrible here just an attempt by LEO to sway (under color of law) the video-grapher from recording voice. The cops was not a complete dick-head as so often is the case.

    The fact that he was only a partial dickhead instead of a complete dickhead isn’t much of a consolation.

    While it’s true the cop didn’t whip out a gun and shoot the woman or go looking for a dog to kill, he still attempted to use his position and authority to intimidate a woman to get her to stop a perfectly legal activity. I might also point out that the camera may very well have been the single thing keeping the cop from crossing further over the line. After all, there’s a reason the cop wanted her to shut the camera off. My guess is that he wanted the option to embellish the story later as needed to support his actions (an option usually denied when video is available).

  35. #35 |  Marty | 

    I agree, Dave- I felt the camera was the tool that helped the cop behave.

  36. #36 |  Kevin3% | 

    DK@#34
    Point well taken.

    I agree that the recording (video and/or voice) of anyone on public payroll should be, without question, completely legal and appropriate, at any time, where ever they are conducting official business.

    It would be one way of putting a leash back on government.

  37. #37 |  Tom | 

    As soon as I saw the video was from pashame I turned it off. Those people are all for “constitutional” rights to protest and videotape, but somehow don’t think that a private club on private property has the right to do a legal thing, which is shoot live pigeons.

    They are trying to have it both ways so I take what they say as suspect.

  38. #38 |  TDR | 

    Alright, everybody, here’s the deal. We have to stop sitting on the sidelines and letting individuals get picked off one by one. I started thinking about this when Pete Eyre and Adam Mueller got arrested in Greenfield, MA.

    Instead of letting two freedom fighters sit alone in their cell, there should have been a whole mob of us showing up at the police station to tape the fiasco.

    We have to find some way to start organizing around one simple motto: AN ATTACK ON ONE IS AN ATTACK ON ALL.

    Here’s my point: How many of us do you think they’d be willing to arrest, all at once, in Maryland, Massachusetts, or Illinois, before they decided it was easier just to change the law?

  39. #39 |  JS | 

    Dave Krueger “While it’s true the cop didn’t whip out a gun and shoot the woman or go looking for a dog to kill, he still attempted to use his position and authority to intimidate a woman to get her to stop a perfectly legal activity.”

    That sums it up brilliantly!

  40. #40 |  grumbley | 

    I see your point, but I don’t see what angle this would take. What PC could the officer use (and would use, in a low-intensity situation like this) to search the camera? Furthermore, afterwards you could just say that the audio on the camera was turned off, but the digital recorder in your pocket with the hidden microphone wasn’t.

    Be very, very careful trying to pull that sort of thing – I really wouldn’t advise it. When the law is on your side (learn more about your state here, for instance, and no, that isn’t my site), best to play it straight.

    Playing games like that is very likely a great way to find out how flexible a local prosecutor wants the law to be. I’m not saying that’s right, but I am saying that’s likely to happen.

  41. #41 |  parse | 

    Pointing cell phone cameras at cops is like turning on the light in a den of corruption and brutality that has been operating in pitch darkness since the beginning of time. You can be pretty fucking sure they are not going to thank you for it.

    Given that the reality of police corruption and abuse of authority is such a problem, I don’t understand the value of engaging in hyperbole, which only gives the impression you need to exaggerate the level of cop misbehavior to draw people’s attention. Obviously police corruption has not been operating, in pitch darkness or anywhere else, “since the beginning of time.” What’s the motivation for overheated rhetoric when a cool, clear presentation of the facts is sufficient to convince a reasonable person that police misbehavior is a serious problem that deserves prompt remedy?

  42. #42 |  Dave Krueger | 

    #41 parse

    What’s the motivation for overheated rhetoric when a cool, clear presentation of the facts is sufficient to convince a reasonable person that police misbehavior is a serious problem that deserves prompt remedy?

    You can call it hyperbole. I call it being pissed off.

    “Extremism in the cause of Liberty is no vice! Moderation in the pursuit of Justice is no virtue.”

  43. #43 |  Recording the Police | Snowflakes in Hell | 

    [...] have every right to film the police, even if they have no right to trespass. Hat tip to Radley Balko on this [...]

  44. #44 |  USA Today: “When citizens film police, it shouldn’t be a crime” | Cop Block | 

    [...] Some police departments have acknowledged reality and instructed officers to assume they’ll be recorded and act accordingly. Other departments learn the hard way. Beaverton, Ore., was ordered last month to pay a $19,000 settlement to a man arrested after he videotaped his friend’s arrest. [...]

  45. #45 |  karl mac | 

    I think these cops are about as smart as the ones in Mayberry RFD, these idiots should be investigated and or fired, when idiots like these are supposed to protect and to serve the citizens but have no idea about the law itself then it’s time for a change.

Leave a Reply