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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.

Two of these incidents occurred in Maryland last year, just weeks apart.

One involved Jack McKenna, who was arrested by Prince George's county police last March and charged with assault and resisting arrest when he was out celebrating the University of Maryland basketball victory over Duke. Fortunately for him, his fellow Terps fans happened to record the encounter on their cell phones, showing riot police throwing McKenna against a wall and beating him with batons. Once the videos appeared on the Internet, Prince George's County suspended the officers and dropped the charges against McKenna.

The second incident took place last April, when Maryland State Trooper David Uhler pulled over Anthony Graber for speeding and reckless driving. Graber had swerved across several lanes and did at least one wheelie on his motorcycle while driving 80mph. With a video camera mounted to his motorcycle helmet, Graber captured footage of Uhler dressed in plainclothes while yelling with his gun in hand.

Although Graber was only given a traffic ticket, he posted the video on YouTube to publicize Uhler's threatening behavior. Maryland State police responded by raiding Graber's home, confiscating his computer and charging him with two felonies: one for "violating Maryland's wiretapping law by recording a trooper without his consent, and the other was for "possession of an intercept device," a provision intended for bugs and wiretaps but in this case referred to Graber's video camera." As a result, Graber faced up to 16 years in prison for recording a police officer during a public traffic stop.

Graber's case was ultimately dismissed, as are almost all of these cases, on the grounds that "a police officer at a traffic stop has no expectation of privacy," which is in accordance with every court in the country that has considered the issue. Because there is no legal justification, the charges are usually dropped or never filed at all. But that doesn't stop the arrests. Radley Balko points out that, more often than not, police arrest photographers for obstructing law enforcement even in states that have no wiretapping law:

“In addition to arresting citizens with cameras for wiretapping, police can use vaguer catch-all charges, such as interfering with a police officer, refusing to obey a lawful order, or obstructing an arrest or police action. Such arrests are far more common. Even more frequent are incidents where police don’t make arrests but illegally confiscate cameras, delete photos and videos, or incorrectly warn camera-wielding citizens that they aren’t allowed to film.”

One such encounter took place earlier this year, when a California man, who recorded a police officer arresting someone at gunpoint down the street, found himself handcuffed as well. Lonell Duchine was videotaping the arrest on his cell phone from inside his garage, when an officer walked up to his home and demanded the phone for evidence. Duchine refused, so the police officer arrested him, citing “police interference” for withholding evidence.

While illegal confiscation happens in a range of scenarios, from traffic stops to people's homes, the most famous example was on New Year’s day 2009, when Bay Area Rapid Transit (BART) Officer Johannes Mehserle shot 21-year-old Oscar Grant at point-blank range, as he lay face down in an Oakland subway station, allegedly resisting arrest. The incident captured the nation's attention not simply because an unarmed black man was publicly killed by a white police officer, but also because dozens of onlookers captured it on their cell phones for the world to see.

 

In California, police are not permitted to confiscate a phone unless the phone was used in a crime. Nonetheless, after the incident BART police attempted to confiscate the phones of subway riders, and even chased one camera-wielder onto a subway car. Had a bystander not been equipped with his cell phone, charges may not have been brought against Mehserle, demonstrating the crucial role video recording can play in accountability. Since then there have been multiple incidents of police brutality recorded by cell phones, which may have otherwise gone unaddressed.

The most pernicious prosecutions to date have taken place in Illinois, where the sentence for recording a police officer is considered a class 1 felony — on par with a rape charge — and can land a person behind bars for more than a decade.

The New York Times reported on a number of these cases back in January, one of which involves Tiawonda Moore from Chicago, Illinois, who faces up to 15 years in prison for using her Blackberry to record two Internal Affairs investigators who spoke to her inside police headquarters. She was there last August to file a sexual harassment complaint against another officer, who she alleges had "fondled her and left his personal telephone number" when he was at her home investigating a domestic dispute. She says the police department actively discouraged her from filing a report, so out of frustration, she began to record the conversations on her phone. Although the case initially received national media coverage, attention has since died down as 21-year-old Moore awaits a trial date that continues to be pushed back.

Michael Allison is another Illinois resident facing the wrath of the eavesdropping law. The 41-year-old mechanic from Bridgeport faces four counts of violating the eavesdropping law, which adds up to a possible 75-year sentence. Allison believed the local police were harassing him in retaliation for a lawsuit he'd filed against the city over a local zoning ordinance, so he began to record his conversations with them.

Allison was eventually charged with violating the zoning ordinance. When he was told there would be no record of his trial, he informed court officials that he would record his trial with a digital recorder. This prompted the judge to have him arrested on the day of his trial, for violating her right to privacy. After confiscating Allison's digital recorder, the police found the recordings between Allison and the cops.

Christopher Drew, a 60-year-old artist, is also being prosecuted for violating the eavesdropping law. Drew was arrested in late 2009 for selling art on the street in Chicago without a permit. He recorded the incident, and now faces a15 year sentence for recording his own arrest.

These are just a handful of cases that illustrate the danger that comes with recording police in public. Carlos Miller, a journalist who has been arrested twice for photographing the police, has documented hundreds of similar cases on his blog, Photography is Not a Crime.

What Do the Police Think?

In the most comprehensive article to date about recording the police —" The War on Cameras" — Radley Balko interviewed James Pasco, executive director of the national Fraternal Order of Police (FOP), which describes itself as "the world's largest organization of sworn law enforcement officers." Pasco argues that videotaping police officers in public should be illegal because it can intimidate officers from doing their jobs. Mark Donahue, president of FOP, concurs, telling the New York Times that his organization “absolutely supports” the eavesdropping act and was relieved that the ACLU's challenge filed last year failed, adding that recording on-duty police officers “can affect how an officer does his job on the street.”


Police officers are not a monolith, so while there are many, like Pasco and Donahue, who support these laws, there are also many who doubtless oppose them. At the same time, police apprehension about being videotaped on the job is understandable, especially with the advancement in cell-phone technology increasing at record speed. Some also worry that their actions will be preserved and used against them in ways that weren't possible just a few years ago, while others are simply uncomfortable being videotaped.

However, when considering recent developments in police surveillance, Pasco's argument is rather baffling. In stark contrast to the laws banning citizens from monitoring police misconduct with recording devices, police officers are equipped with top-of-line surveillance cameras in their cars and on their uniforms. According to a recent AP report, "hundreds of police departments across the country are equipping officers with tiny body cameras to record anything from a traffic stop to a hot vehicle pursuit to an unfolding violent crime. The mini cameras have even spawned a new cable reality TV series, "Police POV," which uses police video from Cincinnati, Chattanooga and Fort Smith, Ark."

The AP report claims that the cameras are meant "to provide more transparency and security to officers on the street and to reduce the number of misconduct complaints and potential lawsuits." Which begs the question: what is the difference between these cameras and the footage captured by citizens in public? Why is it acceptable for police officers to record, but not citizens? Aren't the uniform and dashboard cameras, which unlike citizen recordings document police actions all through the day, intimidating police from doing their jobs, just as Pasco suggested?

Unconstitutional

Pasco goes on to suggest that we have to "put faith and trust in our authority figures," which is the absolute antithesis of a functioning democracy and the US constitution that rests on transparency and accountability.

As usual, the American Civil Liberties Union (ACLU) has taken the lead in challenging these laws. In August of last year, the ACLU of Illinois filed a federal lawsuit in Chicago challenging the Illinois Eavesdropping Act (ACLU v. Anita Alvarez), arguing that "the act violates the First Amendment and has been used to thwart people who simply want to monitor police activity," including the ACLU itself. The Illinois law is unique in that it makes it a crime to record not only private but also public conversations made without consent of all parties. The ACLU lawsuit referred to "six Illinois residents who have faced felony charges after being accused of violating the state’s eavesdropping law for recording police making arrests in public venues."

Although the lawsuit was dismissed in January, the ACLU has appealed the suit and expects to begin making oral arguments sometime in the fall. Adam Schwartz, senior staff attorney with the Illinois Chapter of the ACLU, explained why the eavesdropping law is unconstitutional:

"The First Amendment protects the right to gather information for the purpose of sharing it with other people and for the purpose of using it to petition government for redress of grievances. And so for a long time courts have protected the right to record by various means what government officials are doing in public, so the press can publish that and so that citizens can use it to petition government.  

"When we talk about police officers doing their jobs in public, we’re talking about very important government activity which is often used properly but sometimes is abused, and it’s very important that citizens have the ability to document what police are doing so they can seek improvement in police policy and the like… therefore, the first amendment protects the right to make audio-recordings of on duty police officers who are doing their jobs in public places."  

Schwartz went on to compare audio-recording to other forms of documentation that, although less efficient, are not illegal:

"We believe that a police officer who is doing their job in a public place does not have an expectation of privacy.  Even the police can see that if they’re arresting somebody on a corner, other people can watch….they don’t dispute that someone can stand a small distance away and watch, or that the person who’s watching can take out a pen and take notes or on what they’re seeing, or that they can take photographs of what they’re seeing or that they can make a silent video recording of what they’re seeing. The addition of the audio is a very powerful way for citizens to ensure that police officers are turning square corners."

Schwartz also emphasized that resolving disputing testimonies with citizen recording, while important, is not the only benefit to overturning the eavesdropping law:

"If police officers are doing their jobs in public places, for example policing a demonstration and something goes awry, it is very valuable for there to be a strong record, including audio of what happened, so that if there is a need to change the rules, the public can go to the government and say "look what happened, change the rules about how police officers are enforcing the peace at a political demonstration."

The court's decision in this case is said to be critically important in setting a precedent "that will either protect or endanger newsgatherers‘ constitutional rights to monitor and record police misconduct." Schwartz said the ACLU is "cautiously optimistic" about the eventual ruling, which is expected to be handed down sometime in 2012.

 

EDITOR'S NOTE:This article has been corrected since its original publication for more accurate attribution to original sources.

Rania Khalek is a progressive activist. Check out her blog Missing Pieces or follow her on Twitter @Rania_ak. You can contact her at raniakhalek@gmail.com.