Do police have a legitimate expectation of privacy in public performance of duty?

Perhaps the blame lies on the founders who wrote our Constitution, who included an individual right to bear arms but not to bear … cameras.  In a handful of states, it has now become illegal to videotape police officers performing their duties in public, and in Maryland, it can result in charges of illegal wiretapping.  The efforts to squelch videotaping have created situations where citizens place themselves at risk in having no expectation of privacy when speaking to police in public, but the officers themselves are presumed to have that expectation in the same conversation and place:

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.

Radley Balko has been covering this issue for Reason Magazine for quite a while.  He also looks at Maryland’s attempt to use wiretapping laws to keep people from videotaping police:

Graber is due in court next week. He faces up to five years in prison. State’s Attorney Joseph Cassilly has also charged Graber with “Possession of an Interception Device.” That “device” would be Graber’s otherwise-perfectly-legal video camera.

Graber’s case is starting to spur some local and national media discussion of the state’s wiretapping law. As I mentioned in my column last month, his arrest came at about the same time the Jack McKenna case broke nationally. McKenna, a student at the University of Maryland, was given an unprovoked beating by police during student celebrations after a basketball game last February. McKenna would probably still be facing criminal charges and the cops who beat him would likely still be on the beat were it not for several cell phone videos that captured his beating. According to Cassily’s interpretation of the law, if any of those cell phones were close enough to record audio of the beating, the people who shot the videos are felons.

Now we have another video of an arrest during the Preakness Stakes in which a Baltimore police officer can be heard telling the camera-holder, “Do me a favor and turn that off. It’s illegal to record anybody’s voice or anything else in the state of Maryland.”

That simply isn’t true, and it’s outrageous that Maryland law enforcement keeps perpetuating this myth. Perhaps that officer was merely misinformed. But Maryland police spokesmen and prosecutors are giving the impression that the state’s wiretapping law is ambiguous about recording on-duty police officers. It really isn’t. They’ve just chosen to interpret it that way, logic and common sense be damned.

No one is arguing that people should interfere in an investigation or expose undercover police on YouTube.  These cases involve people videotaping police actions in public, where the police either wear uniforms or announce themselves as law enforcement officers.  Last year, the video of a DC police officer brandishing his gun to stop a snowball fight became of the most popular YouTube clips of the year, and resulted in disciplinary action for the police officer.  None of these endangered an investigation, but some of these have shown abuses of power by police officers that should focus attention on the officers rather than the videographers.

Police do not have an expectation of privacy in their public encounters with the citizenry.  In fact, they should have instead an expectation of public accountability for the performance of that work.  When a free people give police the authority to enforce our laws and to have the leeway to commit acts of violence in doing so, that is a trust that requires oversight and accountability.  The vast majority of police officers enforce the law in a lawful, professional manner, but some abuse their positions of trust.  Removing oversight makes it more difficult for the professionals to do their job and easier for the small number of abusers to bully others into following their example.

Instead of using the combination of technology and a free people to ensure accountability, a few states instead want to turn videographers into felons and put police beyond public scrutiny.  That’s a very bad combination and direction.  The notion that police officers have an expectation of privacy in public while anything said around them in the same venue is public enough to use as evidence in a court of law sets up a dangerous double standard, and the legislatures of these states should put an end to the abuse of wiretap laws to squelch accountability.

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