Can we record the police?

This article contains some writing, compilation, and research by jan, with references to sources such as the Boston Globe, information compiled by Citizen Media Law Project, and investigative phone calls by John Del Santo.


CAN WE RECORD COPS?

The question of "CAN WE RECORD COPS?" is a simple question. There should be a simple answer of yes or no. These are public servants receiving public funding and they are in public doing their public job. They are answerable to the public, after all. Aren't they?

In general, the answer "should" be a simple yes, but in reality, the various states have different laws which you should check into before heading out onto the road with a recorder in your vest pocket to try to get a helmet ticket in a reverse entrapment sting like you see B.O.L.T. and other civil libertarian special forces operatives doing.

Audio and video recordings in public are permitted in most states. However, some people have been arrested for recording police in states such as MA and PA which have laws that prohibit recording without dual consent, even in public...and even if it is a so-called public servant.

As an example, Massachusetts has a dual-consent law about audio recording. Police have arrested people from time to time, charging them with illegal electronic surveillance, and with no prior warning. The State "punishes citizen watchdogs and allows police officers to conceal possible misconduct behind a "cloak of privacy". .. Citizens have a particularly important role to play when the official conduct at issue is that of the police". These are not my words. These are the words of Chief Justice Margaret Marshall, commenting on the persecution and conviction of Michael Hyde, a musician that was sick of constant police harassment and decided to begin carrying a recording device with him.

In a more recent case regarding an incident in October, 2007, a Boston lawyer saw cops using what appeared to be excessive force, whipped out his cell phone, and started recording. Since the cell phone was recording audio as well as video, he was handcuffed and charged with illegal electronic surveillance. Check the Massachusetts General Laws for yourself, see Title 1 Chapter 272: Section 99. Interception of wire and oral communications.

In Pennsylvania, there have also been recent episodes of police arresting people who record them even though they are in public, supposedly doing public service, in conditions which they should not have a "reasonable expectation of privacy". Here is some information about some other states. If you have information about your state, please add your comments.


State Laws about Recording - an excellent source:


While conducting research for this, I found excellent advice about recording of cops at Citizen Media Law Project.

Here is a paragraph from the Citizen Media Law Project...

Each state has its own wiretapping statute and its own rule on how many parties need to consent to the recording of a phone call or conversation in order to make it lawful. State law also varies on whether or not (and under what circumstances) you are permitted to use recording devices in public meetings and court hearings.

There is also a list of states, so you can find state-specific information on recording laws.


Phone Calls and Research by John Del Santo


John Del Santo from San Diego has done some research into this topic, including phone calls to California and federal authorities.
DISCLAIMER and FIRST AMENDMENT NOTICE: This is a political communication exercising our Freedom of Speech as guaranteed by the U.S. Constitution. This missive may be the opinion of the writer, and the sender does not guarantee the accuracy of any forwarded material.
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Recently there were conversations bouncing backing forth regarding “Are you allowed to take photos or videos of a policeman” ? Here is what I have been able to find so far.

San Diego Police Dept. No one could remember having seen anything in print prohibiting this.

California Vehicle Code I could not find anything in the CVC prohibiting this.

California Penal Code I was unable to find anything prohibiting taking photos of a Law Enforcement Officer (L.E.O).

California Highway Patrol, Sacramento The officer that I spoke to said that as far as he knows, an officer on the street has "no reasonable expectation of privacy" regarding having their photo taken. He suggested that I might check with Homeland Security.

Homeland Security, Washington DC Policy Dept , said that they could not find any rule in their book that prohibits taking photos or videos of police, but gave me another number for the U.S. Secret Service.

U.S. Secret Service, San Diego A very knowledgeable sounding Agent said that there is no law ( with some minor variations ) that would prohibit me from taking photos or videos of a L.E.O. He said that any variations would be something like taking the photos of an officer who is working undercover , taking a photo of an officer and then posting it on the internet with crosshairs on the cops forehead, taking a photo of a cop as he is entering his home, showing the home address, Taking his or her photo for the photographers sexual gratification, using the photograph for reasons that would harm the officer or their family, etc.

United Kingdom In the U.K. there are several laws prohibiting taking photos of police officers (or making fun of their hats.)

Philadelphia, PA A man was standing in his front yard, saw some action on the street involving police action, took out his cell phone, and took a photo A policeman entered his yard, took away the camera, told the man that there was a “new law” against using a cel-phone to take a L.E.O.’s picture, handcuffed the man and took him to the police station. The American Civil Liberties Union defended the man on the grounds that there is no such law prohibiting the man’s action because the man took pictures “of activities that are clearly visible on the street” The man was released without charge.

jan says, "Thanks for making all those phone calls John. I hope you had the recorder going!"

taking pictures of the cops

there may not be a law in every state prohibiting photographing or video taping the police in action or off duty but when have they ever needed an ilegal action to arrest you i have found that all you have to do is piss one of them off and you will get arrested even if they make up charges you may or may not be convivted of these charges but it could still lead to an unpleasant encarceration for 1 or more days and a good chunk out of your wallet defending yourself then if you end up in a municipal court room in south carolina where the law does not require them to have a transcript or tape of procedings no telling where it will go but on the other hand we are being photograph or videoed every where we go from our front yard to the stop light up the street and our civil servant are also on all the same videos however getting a court to use the corner store video against a police officer probably will hardly ever happen but they will definatly use it against you and me

Michigan Recording law

Michigan Recording Law
Note: This page covers information specific to Michigan. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

Michigan Wiretapping Law
Michigan law makes it a crime to "use[] any device to eavesdrop upon [a] conversation without the consent of all parties." Mich. Comp. Laws § 750.539c. This looks like an "all party consent" law, but one Michigan Court has ruled that a participant in a private conversation may record it without violating the statute because the statutory term "eavesdrop" refers only to overhearing or recording the private conversations of others. See Sullivan v. Gray, 342 N.W. 2d 58, 60-61 (Mich. Ct. App. 1982). The Michigan Supreme Court has not yet ruled on this question, so it is not clear whether you may record a conversation or phone call if you are a party to it. But, if you plan on recording a conversation to which you are not a party, you must get the consent of all parties to that conversation. In addition, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.

Michigan law also makes it a crime to "install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place." Mich. Comp. Laws § 750.539d. The law defines a "private place" as a place where a person "may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access." Mich. Comp. Laws § 750.539a. You should always avoid these kinds of surveillance tactics.

Michigan law also prohibits you from "us[ing] or divulg[ing] any information which [you] know[] or reasonably should know was obtained in violation of the other wiretapping laws. Mich. Comp. Laws § 750.539e. To the extent this statute forbids you from publishing truthful information on a matter of public concern provided to you by a third-party (when you had no role in the wiretapping), it is probably unconstitutional. See Bartnicki v. Vopper, 532 U.S. 514 (2001).

In addition to subjecting you to criminal prosecution, violating these provisions can expose you to a civil lawsuit for money damages by an injured party.

Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Michigan for more information on Michigan wiretapping law.

Michigan Law on Recording Court Hearings and Public Meetings
Court Hearings

Michigan law generally allows sound and video recording of state court proceedings, but you must request permission from the presiding judge at least three business days beforehand. The court has discretion to terminate or prohibit recording if it determines that it would be in the interests of justice. For instance, the court may exclude recordings of particularly sensitive witnesses or testimony involving confidential business information.

Federal courts in Michigan, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

I have researched this a bit myself, and like others have found the recording laws vague and varying across the country, and even in states. Below is a link to Michigan and its Wiretapping law. My take is that in Michigan as long as you are in a public setting and you inform the cop your recording him, your legal. Also interesting is that it appears there is a procedure to gain permission to record court hearings in State courts. This would be great for after action analysis and sharing with others to learn how (or how not) to conduct your case. The link below also links to other states recording laws.

http://www.citmedialaw.org/legal-guide/michigan-recording-law

For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide.

Public Meetings

When you attend a public meeting (i.e., a meeting of a governmental body required to be open to the public by law), Michigan law gives you the right to make video and sound recordings of the meeting and to broadcast live, subject to prior approval of the governmental body holding the meeting and to reasonable rules laid down by that body to avoid disruption of meetings. Mich. Comp. Laws § 15.263(1).

For information on your right of access to public meetings, please consult the Access to Government Information section of this guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Michigan.

"What we call 'normal' in psychology is really a psychopathology of the average, so undramatic and so widely spread that we don't even notice it ordinarily."

Federal law - recording cops allowed

According to US Code, who must give permission to record a telephone or in-person conversation?

Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d), below. This is called a "one-party consent" law. Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation.

(d) It shall not be unlawful under this chapter [18 USCS §§ 2510 et seq.] for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

See: http://www.citmedialaw.org/legal-guide/recording-phone-calls-and-convers...

Citizen’s Right to Video-Record Police Activity

Karen from NY sent me a link to what the AELE has to say for themselves as a result of research on the topic of

Officer Privacy and a Citizen’s Right to Video-Record Police Activity
http://www.aele.org/law/2009all05/2009-05MLJ201.pdf

Conclusions the AELE arrived at:
While no citizen has a right to impede police actions or to expose an officer to danger, the First Amendment generally protects the right to photograph or video-record the activities of law enforcement personnel while engaged in their duties.
...
Although First Amendment rights are always subject to reasonable time, manner and place restrictions, a uniformed police officer does not have a right to privacy while performing his duties.

Also, see the COPWATCH Handbook
http://www.berkeleycopwatch.org/resources/Handbook_06.pdf
COPWATCH is a group of community residents and students who have become outraged by the escalation of police misconduct, harassment and brutality in recent years. We have joined together to fight for our rights and the rights of our community by taking on the task of directly monitoring police conduct.
The home page of COPWATCH is http://www.berkeleycopwatch.org/

Another information source is the Reporters Committee for Freedom of the Press:
A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and DC.
http://www.rcfp.org/taping/index.html

Tape recording laws at a glance:
http://www.rcfp.org/taping/quick.html

State by state summaries:
http://www.rcfp.org/taping/states.html

Maryland Court Rules on Video of Cop

A shocking video posted on youtube last spring, showed Joseph David Uhler, plain clothes cop, pulling a gun on a motorcyclist, prior to identifying himself. The gunman was "just another asshole" with gun drawn.
badcopuhler

Cops were embarrassed over the video, and retaliated. They brought with them a search warrant (reportedly no judges name or signature on it), went to the home of Anthony J. Graber III, seized a computer and other possessions, and charged Graber with violating the Maryland wiretap statute.

The Maryland wiretap statute is intended to protect an individuals' right to privacy. It is not intended to protect a cops privacy at a traffic stop on a public road, while "serving" the public.

This week, Hartford County Circuit Court ruled in favor of the motorcyclist, Anthony J. Graber III. As usual, news reports have not provided documents of the actual court opinion. (Please post a link to the actual court document if you find it.) Indications are that cops at traffic stops in Hartford County, Maryland have no reasonable expectation of privacy. It is possible that the court opinion may influence a statewide ruling.