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15 Years in Prison For Taping the Cops? How Eavesdropping Laws Are Taking Away Our Best Defense Against Police Brutality

More and more people use their smartphones to record police misconduct. But laws against wiretapping are being used to intimidate and stop them.
 
 
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This article has been updated.

Over Memorial Day weekend this past May, residents of Miami Beach witnessed a horrific display of police brutality as 12 cops sprayed  Raymond Herisse's  car with 100 bullets, killing him. The shooting provoked outrage in the surrounding community, not only because of the murder, but because of what the police did afterward. 

Officers on the scene confiscated and smashed witnesses' cell phones; later, when they were confronted by the media, the police denied trying to destroy videos of the incident. 

But 35-year-old  Narces Benoit  removed his HTC EVO’s memory card and hid it in his mouth. He later sold the video to CNN, placing the police in the awkward position of explaining why they lied about allegations of cell phone destruction. More importantly, the video showed at least two officers pointing guns at Benoit, demanding that he stop filming.

Police brutality takes many forms around the country on a regular basis, particularly in poor and minority neighborhoods. Sometimes, the only method of accountability is a victim’s word (if they are still alive) against that of an officer. Unsurprisingly, the police officer’s version of the story is often adequate for a judge to dismiss allegations of wrongdoing, unless there is hard evidence of misconduct, such as a video or audio recording, which can be useful to unravel conflicting versions of police-citizen encounters.

Due to advancements in technology, the average citizen carries a digital camera in his or her pocket or purse, creating a potential army of amateur videographers on every street corner. A quick YouTube search of "police brutality" lists endless videos, often cell phone footage, of what appear to be police acting with unnecessary and violent force. Some of those videos have served a crucial role in bringing charges against brutality that may have gone unaddressed had it not been for bystanders recording.

One would think the fear of videographers on every block would be a powerful deterrent to police misconduct. However, legislatures are not taking this newfound power against police abuse lightly. In at least three states, it is  illegal to record  on-duty police officers, regardless of the circumstances. The legal justification is usually based on the warped interpretation of existing wiretapping or eavesdropping laws in addition to statutes against obstructing law enforcement.

Illinois, Massachusetts and Maryland are among the  12 states  where all parties are required to give their consent for a recording to be considered legal.  Because the police do not consent, in some states the camera-wielder can be arrested and even charged with a felony. Radley Balko explains that most all-party consent states (except Illinois and Massachusetts) include a "privacy provision" that says "a violation occurs only when the offended party has a reasonable expectation that the conversation is private.” This is meant to protect TV news crews and people who record public meetings — where it is obvious to all that recording is underway — from accidentally committing a felony.

Massachusetts and Illinois are the only states that do not recognize an expectation-to-privacy provision to their all-party consent laws. While courts in Massachusetts have generally held that secretly recording police is illegal, recording them openly is not. Illinois, on the other hand, is the only state where the legislature specifically amended the state's wiretapping law to make it illegal to record on-duty police officers without their consent, even in public.

Cases Keep Piling Up

Recording on-duty police officers has gained momentum in states around the country for some time now. But it's only in the last few years, after several high-profile incidents, that the topic has begun to generate nationwide headlines and debate.