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Offline Nonstopdrivel  
#1 Posted : Thursday, June 9, 2011 11:08:11 PM(UTC)
Nonstopdrivel

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Radley Balko
Radley.Balko@huffingtonpost.com
Chicago State's Attorney Lets Bad Cops Slide, Prosecutes Citizens Who Record Them

First Posted: 06/ 8/11 01:09 PM ET Updated: 06/ 8/11 05:10 PM ET

When Chicago police answered a domestic disturbance call at the home of Tiawanda Moore and her boyfriend in July 2010, the officers separated the couple to question them individually. Moore was interviewed privately in her bedroom. According to Moore, the officer who questioned her then came on to her, groped her breast and slipped her his home phone number.

Robert Johnson, Moore's attorney, says that when Moore and her boyfriend attempted to report the incident to internal affairs officials at the Chicago Police Department, the couple wasn't greeted warmly. "They discouraged her from filing a report," Johnson says. "They gave her the runaround, scared her, and tried to intimidate her from reporting this officer -- from making sure he couldn't go on to do this to other women."

Ten months later, Chicago PD is still investigating the incident. Moore, on the other hand, was arrested the very same afternoon.

Her crime? At some point in her conversations with internal affairs investigators, Moore grew frustrated with their attempts to intimidate her. So she began to surreptitiously record the interactions on her Blackberry. In Illinois, it is illegal to record people without their consent, even (and as it turns out, especially) on-duty police officers.

"This is someone who is already scared from being harassed by an officer in uniform," said Johnson. "If the police won't even take her complaint, how else is a victim of police abuse supposed to protect herself?"

Moore's case has inspired outrage from anti-domestic abuse groups. "We just had two Chicago police officers indicted for sexual assault, there have been several other cases of misconduct against women," says Melissa Spatz of the Chicago Task Force on Violence Against Girls & Young Women. "And now you have Moore, who was trying to report this guy, and she gets arrested. The message here is that victims of unwanted sexual advances by police officers have no recourse -- that the police can act with impunity."

If the Chicago cops recently indicted for sexual assault are convicted, they'll face four to 15 years in prison. That's the same sentence Tiawanda Moore is facing for trying to document her frustrations while reporting her own alleged sexual assault: Recording an on-duty police officer in Illinois is a Class 1 felony, the same class of crimes as rape.

ILLINOIS' PROBLEM WITH PRIVACY

Last summer the U.S. media took note of several stories about citizens arrested for photographing or recording on-duty police officers. National coverage of these incidents has since died down, but the arrests haven't stopped.

Some of these arrests have come under decades-old wiretapping laws that never anticipated the use of cellphones equipped with cameras and audio recording applications. Others have come under vaguer catch-all charges like refusing to obey a lawful order, disorderly conduct, or interfering with a police officer. In both cases, the charges rarely stick, and in most cases, it's the cops themselves who are violating the law.

The media have largely done a poor job reporting on what the law actually is in these states. Technically, so long as a person isn't physically interfering with an on-duty police officer, it's legal to record the officer in every state but Massachusetts and Illinois. Arrests still happen in other states, but there's little legal justification for them, and the charges are usually dropped, or never filed at all.

But Illinois is the one state where the law clearly forbids citizens from recording of on-duty cops. And so it seems likely that if the Supreme Court or a federal appeals court does eventually decide if pointing a camera at a cop is protected by the First Amendment (so far, they haven't), the case will come from Illinois. (Courts in Massachusetts have generally held that secretly recording police is illegal, but recording them openly isn't.)

Illinois' wiretapping law wasn't always this bad. Originally, the statute included a provision found in most other state wiretapping laws stating that, in order for someone to be prosecuted for recording a conversation, the offended party must have had a reasonable expectation that the conversation was private.

So far, every court in the country to have considered the issue has found that on-duty cops have no such expectation of privacy. This makes sense. Police not only work for the public, they're also entrusted with enormous power: They can arrest citizens and detain them or kill them.

In 1986, the Illinois Supreme Court threw out the eavesdropping conviction of a man who had recorded two police officers from the back of a patrol car for just that reason. The court ruled that the officers had no expectation of privacy.

So in 1994 the Illinois state legislature removed the wiretap law's privacy provision. It was an explicit effort to override the decision eight years earlier. Technically the amended law covers everyone -- anyone whose voice is recorded without their permission, for any reason, could file a complaint and ask to press charges -- but it's used almost exclusively to protect police.

So far, HuffPost has yet to find anyone who has actually been convicted under the law. Instead, police arrest and charge someone they catch recording them, but the charges are dropped or reduced to misdemeanors before trial.

In 2004, for example, documentary filmmaker Patrick Johnson was arrested under the law while recording footage for a movie about relations between blacks and police in the Illinois cities of Champaign and Urbana. Johnson fought the charges with help from the state affiliate of the American Civil Liberties Union (ACLU). But after the district attorney who was prosecuting him lost in the next election, the new prosecutor dismissed the charges.

THE STATE v. CITIZENS

An actual conviction under the eavesdropping law would likely bring a constitutional challenge, which could well lead to the law being overturned in court. It could also lead to the U.S. Supreme Court or the U.S. Court of Appeals for the 7th Circuit more broadly affirming a First Amendment right to record police, which of course would have ramifications outside of Illinois.

As long as no one is convicted, the law is unlikely to be challenged. That means police can continue to rely on it to harass and intimidate citizens who try to hold them accountable, or who want an independent record of what they believe to be police harassment.

Moore's case may prove to be just the opportunity free speech advocates are looking for. But her case was continued again this week, despite the fact that she's been asking for months to go to trial.

The person pursuing the charges against Moore is Anita Alvarez, the state's attorney for Cook County, home to Chicago. (Alvarez's office declined to comment for this report.)

It's difficult to think of another big city in America where citizens would be more justified in wanting an objective account of an interaction with a police officer. At about the time Moore's story hit the pages of The New York Times earlier this year, for example, former Chicago Police Commander Jon Burge was sentenced to four-and-a-half years in prison for lying under oath about his role in the routine torture of hundreds of suspects in police interrogation rooms for more than a decade. Nearly everyone else involved in the tortures, including the police commanders and prosecutors who helped cover them up, couldn't be prosecuted due to statutes of limitations.

Over the last few years, surveillance video has also exposed a number of police abuses in Chicago, including one episode in which an off-duty cop savagely beat a female bartender who had refused to continue serving him. He was sentenced to probation.

In 2008, the city made national headlines with another major scandal in which officers in the department's Special Operations Unit -- alleged to be made up of the most elite and trusted cops in Chicago -- were convicted of a variety of crimes, including physical abuse and intimidation, home robberies, theft and planning a murder.

In a study published the same year, University of Chicago Law Professor Craig B. Futterman found 10,000 complaints filed against Chicago police officers between 2002 and 2004, more than any city in the country. When adjusted for population, that's still about 40 percent above the national average. Even more troubling, of those 10,000 complaints, just 19 resulted in any significant disciplinary action. In 85 percent of complaints, the police department cleared the accused officer without even bothering to interview him.

Yet Alvarez feels it necessary to devote time and resources to prosecuting Chicagoans who, given the figures and anecdotes above, feel compelled to hit the record button when confronted by a city cop.

In addition to Moore's, there are two other cases that may present an opportunity to challenge the Illinois law. One is that of Michael Allison.

This Robinson, Ill., man is facing four counts of violating the eavesdropping law for the recordings he made of police officers and a judge. Allison was suing the city to challenge a local zoning ordinance that prevented him from enjoying his hobby fixing up old cars: The municipal government was seizing his cars from his property and forcing him to pay to have them returned. Allison believed the local police were harassing him in retaliation for his lawsuit, so he began to record his conversations with them.

When Allison was eventually charged with violating the zoning ordinance, he asked for a court reporter to ensure there would be a record of his trial. He was told that misdemeanor charges didn't entitle him to a court reporter. So Allison told court officials he'd be recording his trial with a digital recorder.

When Allison walked into the courtroom the day of his trial, the judge had him arrested for allegedly violating her right to privacy. Police then confiscated Allison's digital recorder, where they also found the recordings he'd made of his conversations with cops.

Allison has no prior criminal record. If convicted, he faces up to 75 years in prison.

In a hearing last week, Allison argued that the Illinois eavesdropping case was a violation of the First Amendment. The judge ordered a continuance so that the office of Illinois Attorney General Lisa Madigan can prepare a response. (Madigan's office did not respond to HuffPost's request for comment.)

The other case to challenge the wiretap law is that of Christopher Drew, an artist who was arrested in December 2009 for selling art without a permit on the streets of Chicago. Drew recorded his arrest, and now faces four to 15 years for documenting the incident.

In a hearing last December, Cook County Assistant State Attorney Jeff Allen invoked homeland security, arguing that Drew's recording could have picked up police discussing anti-terrorism tactics. Drew's case was suspended after he was diagnosed with lung cancer earlier this year.

Both Allison and Drew say they won't accept the sort of plea bargain Illinois prosecutors have offered in the past. Both say they're willing to risk prison time to get the law overturned.

THE IMPORTANCE OF TRANSPARENCY

The ACLU of Illinois is also challenging the law. But in January, U.S. District Court Judge Suzanne B. Conlon ruled against the organization. Conlon wrote that the First Amendment does not protect citizens who record the police. The ACLU has appealed and expects to participate in oral arguments before the U.S. Court of Appeals for the 7th Circuit sometime in the fall.

In a report released just this month, the United Nations noted the importance of Internet access and personal technology in facilitating the recent Arab Spring uprisings in the Middle East. Technology has given citizens all over the world a remarkable and historic tool to bring transparency to the most brutal and oppressive governments.

But even as Americans have criticized those countries for attempting to prevent protesters from uploading photo, video, blog posts and Twitter accounts of government crackdowns, government officials in the U.S. are still arresting, threatening, intimidating and harassing Americans who attempt to document police abuse in America. (See this example over Memorial Day in Miami.)

No, America isn't Egypt or Yemen or Iran. But while the scale of the suppression is different, the premise is the same: When a citizen and a police officer have a confrontation, the police officer's narrative has always given deference by prosecutors, judges and juries -- in the same way governments in more oppressive parts of the world have the power to project their own version of events as truth.

Citizens in America and across the globe now have the ability to preserve and present a more objective narrative. This is a positive thing -- for democracy, for good government and for a fairer criminal justice system. U.S. courts and legislatures need to make it abundantly, unambiguously clear that not only do citizens have the right to record on-duty police officers, but that cops and prosecutors who violate that right will be held accountable.

Watch: The Government's War On Cameras
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Offline Nonstopdrivel  
#2 Posted : Thursday, June 9, 2011 11:22:12 PM(UTC)
Nonstopdrivel

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The War on Cameras
It has never been easier—or more dangerous—to record the police.

Radley Balko from the January 2011 issue

Michael Allison, a 41-year-old backyard mechanic from southeastern Illinois, faces up to 75 years in prison for an act most people don’t realize is a crime: recording public officials.

Allison lives in Bridgeport, Illinois, and often spends time at his mother’s house in Robinson, one county to the north. Both towns have abandoned property (or “eyesore”) ordinances prohibiting the parking of inoperable or unregistered vehicles on private property except in enclosed garages. These rules place a substantial burden on hobbyists like Allison; to obey the law he must either build a garage—which he says isn’t an option, given his property and his income—or register, plate, and pay insurance on every car he fixes up, even though he never drives them on public roads. So Allison kept working on his cars, and the city of Bridgeport kept impounding them: in 2001, 2003, and 2005.

In 2007 Allison filed a lawsuit against the city, alleging the law was a violation of his civil rights and a scheme to collect revenue through impound fees. He then resumed tinkering with unregistered vehicles in his mother’s driveway in Robinson. By Allison’s account, police officers in Robinson began harassing him with threats of fines or arrest for violating that town’s ordinance, though Allison alleges the harassment was personal—retaliation for his lawsuit back in Bridgeport. That’s when he began recording his conversations with cops.

In late 2008, Allison went to the Robinson police station, tape recorder in hand, and asked the chief to tell his officers either to name the law he was violating and issue him a citation or leave him alone. Not long after, two Robinson police officers showed up at his mother’s property and, while he was working on his mother’s car in her driveway, wrote Allison a citation for violating the eyesore ordinance. Allison openly recorded the conversation with a digital recorder. A court date was scheduled for January 2010.

The day before the trial, Allison went to the Crawford County Courthouse to request a court reporter for the proceedings. “If they were going to convict me of this bogus ordinance violation, I wanted to be sure there was a record of it for my lawsuit,” he says. As he spoke with Crawford County Circuit Court Clerk Angela Reinoehl, Allison showed her his digital recorder, although he says in this instance he wasn’t recording. “I held out the tape recorder to make it clear that if they weren’t going to make a record of this ridiculous farce, I was going to make sure I had one,” he says.

Reinoehl denied the request, but Allison’s promise to record the proceedings apparently came through loud and clear. Just after he walked through the courthouse door the next day, Allison says Crawford County Circuit Court Judge Kimbara Harrell asked him whether he had a tape recorder in his pocket. He said yes. Harrell then asked him if it was turned on. Allison said it was. Harrell then informed the defendant that he was in violation of the Illinois wiretapping law, which makes it a Class 1 felony to record someone without his consent. “You violated my right to privacy,” the judge said.

Allison responded that he had no idea it was illegal to record public officials during the course of their work, that there was no sign or notice barring tape recorders in the courtroom, and that he brought one only because his request for a court reporter had been denied. No matter: After Harrell found him guilty of violating the car ordinance, Allison, who had no prior criminal record, was hit with five counts of wiretapping, each punishable by four to 15 years in prison. Harrell threw him in jail, setting bail at $35,000.

Allison’s predicament is an extreme example of a growing and disturbing trend. As citizens increase their scrutiny of law enforcement officials through technologies such as cell phones, miniature cameras, and devices that wirelessly connect to video-sharing sites such as YouTube and LiveLeak, the cops are increasingly fighting back with force and even jail time—and not just in Illinois. Police across the country are using decades-old wiretapping statutes that did not anticipate iPhones or Droids, combined with broadly written laws against obstructing or interfering with law enforcement, to arrest people who point microphones or video cameras at them. Even in the wake of gross injustices, state legislatures have largely neglected the issue. Meanwhile, technology is enabling the kind of widely distributed citizen documentation that until recently only spy novelists dreamed of. The result is a legal mess of outdated, loosely interpreted statutes and piecemeal court opinions that leave both cops and citizens unsure of when recording becomes a crime.

‘It Just Depends on the Circumstances’

A national debate over recording on-duty police officers erupted in 2010 after two high-profile incidents in Maryland.

The first was in March, shortly after the University of Maryland men’s basketball team beat Duke. Among the Maryland students who spilled onto the College Park campus to celebrate were Jack McKenna and Benjamin Donat. As the two capered down the street with other Terps fans, they were stopped by two officers from the Prince George’s County Police Department on horseback. Seconds later, three additional riot police confronted McKenna and Donat on foot. McKenna was soon arrested and charged with assault and resisting arrest.

According to police reports, McKenna confronted the officers, verbally provoked them, assaulted them, and then fought when they tried to detain him. But several students at the scene captured the incident on their cell phone cameras. In those videos, later posted on the Internet, McKenna appears to do nothing to provoke the police. Instead, the riot cops stop McKenna, throw him up against a wall, and begin beating him with their batons. Attorney Christopher Griffiths, who is representing both students, says they suffered cuts, contusions, and concussions. After the videos appeared on the Internet, Prince George’s County suspended four of the officers, and the charges against McKenna were dropped.

The second incident came on April 13, about the same time McKenna’s case began to make national news. Maryland State Trooper David Uhler pulled over motorcyclist Anthony Graber for speeding and reckless driving. Graber had a video camera mounted to his helmet that was recording at the time of the stop. Uhler, dressed in street clothes, emerged from his unmarked car with gun drawn, yelling. Graber was given only a traffic ticket, but he was miffed at Uhler’s behavior. So he posted the video on YouTube. Days later, Maryland State Police conducted an early-morning raid on Graber’s home, held Graber and his parents for 90 minutes, confiscated computer equipment, arrested him, and took him to jail.

Graber was charged with two felonies. The first was violating Maryland’s wiretapping law by recording Uhler without the trooper’s consent. The second was “possession of an intercept device,” a provision in the same law that was intended for bugs and wiretaps but in this case referred to Graber’s video camera, a device that is perfectly legal to own and use in just about any other context. Thanks to legislation written to prevent the surreptitious interception of communications, Graber faced up to 16 years in prison for recording a cop during a public traffic stop.

Wiretapping statutes apply to audio recordings, with or without video. Maryland is one of 12 states with a wiretapping law that requires consent from all parties to a conversation for someone to legally record it. But in 10 of those 12 states, including Maryland, the statute says a violation occurs only when the offended party has a reasonable expectation that the conversation is private. This privacy provision prevents people who record public meetings or inadvertently pick up conversations while shooting video in public from accidentally committing felonies. Civil liberties advocates argue that on-duty police officers, like people attending city council meetings or walking down a public street, do not have a reasonable expectation of privacy. For Graber to be convicted under Maryland’s wiretapping law, a prosecutor would have to argue that Uhler—a police officer who had pulled over a motorist, drawn his gun, and yelled at the guy on the side of a busy highway—had a reasonable expectation that the encounter would remain private.

“It’s absurd,” says David Rocah, who represented Graber for the Maryland chapter of the American Civil Liberties Union (ACLU). “No court in the country has found that police officers have privacy rights in a situation like that.” Rocah points to a 2000 opinion by then–Maryland Attorney General Joseph Curran Jr. about the installation of dashboard cameras in police cruisers. In a footnote, the opinion declared that motorists who are pulled over obviously have no expectation of privacy; what they say during that stop can be used against them in court. “They’re arguing that when a police officer pulls you over in Maryland, the officer has a privacy expectation, but the motorist doesn’t,” Rocah says. “That’s just ridiculous.”

Harford County State’s Attorney Joseph Cassilly, who brought the charges against Graber, disagrees. “Those opinions are just the attorney general paying some lawyers to tell him what he already thinks,” Cassilly says. “I don’t have to agree with it.…The officer having his gun drawn or being on a public roadway has nothing to do with it. Neither does the fact that what Mr. Graber said during the stop could be used in court. That’s not the test. The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear.”

Cassilly maintains that the Graber case is substantially different from the McKenna incident in College Park. “In College Park you had lots of people around,” he says. “You had people screaming and shouting. The officers in that case had no reason to think the situation was private.”

In the ensuing weeks two more incidents involving citizens recording police made news in Maryland. In one, an officer making an arrest in the infield during the Preakness Stakes* horse race warned a cell phone camera operator recording the arrest, “It’s illegal to record anybody’s voice or anything else in the state of Maryland.” But he didn’t arrest the camera operator. Two months later, another woman in Maryland was arrested for recording police who had responded to a noise complaint at her apartment complex, but prosecutors declined to press charges.

Given the range of legal interpretations in these incidents that occurred within a few months of each other, it’s difficult to see how a Maryland resident who witnesses what he believes to be police misconduct could possibly know if recording it is a felony that could send him to prison. “I don’t have any hard and fast rule I can give you,” Cassilly says. “It depends on the circumstances, and if the officer in those circumstances had good reason to think he wouldn’t be recorded. Should a domestic violence victim have a camera shoved in her face and have her privacy violated because someone is following a police officer around with a camera? What if he’s collecting information from witnesses at a crime scene? I’m saying that not everything a police officer does on the job should be for public consumption.”

“That’s ridiculous,” Rocah replies. “Police officers have always retained the ability to secure a crime scene or to talk to witnesses privately. This is about the right to record their public actions in a way that doesn’t interfere.”

In general, Cassilly says, police actions in front of large crowds probably can be recorded without breaking the law, but privacy claims are stronger when few people are around. But this standard undermines the use of citizen video as a check against police misconduct. Police actions in front of large crowds will naturally have a lot of witnesses, a fact that not only deters misconduct but makes video evidence less important. But what if a police officer is harassing or intimidating someone when there aren’t many witnesses, such as during a traffic stop or on an empty street at night? Would it be a felony to record the interaction? “I’m not going to respond to any hypothetical scenarios,” Cassilly says. “It just depends on the circumstances.”

In July, after I spoke with Cassilly, the Maryland Attorney General’s Office responded to a state legislator’s inquiry by issuing an opinion that said “it’s unlikely that most interactions with police could be considered private, as some law enforcement agencies have interpreted the state’s wiretapping act.” But that opinion was only advisory, and Cassilly announced in a subsequent radio interview he had no intention of abiding by it.

Ignorance of the Law Is No Defense

University of Pennsylvania law professor Seth Kreimer, author of a 2010 paper in the Pennsylvania Law Review about the right to record, says such legal vagueness is a problem. Citing decisions by three federal appeals courts, Kreimer says the First Amendment includes the right to record public events. “The First Amendment doesn’t allow for unbridled discretion” by police, he says, “and it’s particularly concerned with clear rules when free speech rights are at stake. Even if there is a privacy interest here, people have to know when they’re going to be subject to prosecution.”

The ambiguity may be of dubious constitutionality, but it’s common. In Massachusetts, the only all-party-consent state aside from Illinois that does not have an expectation-of-privacy provision in its wiretapping law, the Supreme Judicial Court in 2001 upheld the conviction of a man who surreptitiously recorded police officers during a traffic stop. The court ruled that the wiretapping law granted no exception for citizens recording police officers.

The state’s lower courts have interpreted that ruling as applying only to covert recordings of police: People get convicted of secretly recording police, while charges against people who record police openly have generally been thrown out. But arrests and threats of arrest continue under both scenarios. In January 2010, the The Boston Globe reported that it was becoming increasingly common for Massachusetts police to threaten or arrest even people who record them openly. State Attorney General Martha Coakley told the paper her office took no position on the arrests, or on the distinction between open and secretive recording.

Oregon and New Hampshire are also all-party-consent states. As in Maryland, their wiretapping statutes say the offended party must have a reasonable expectation that the conversation was private. Also as in Maryland, police in both states still have arrested people for recording cops. In July, the city of Beaverton, Oregon, paid a $19,000 settlement to a man wrongly arrested for recording officers as they arrested his friend outside of a bowling alley. But even after the settlement, Beaverton Police Chief Geoff Spalding told a local newspaper that taping police without their consent is a “technical violation” of Oregon law. Spalding conceded that the odds of future arrests were “pretty low,” but he wouldn’t rule them out.

In 2006 Michael Gannon of Nashua, New Hampshire, was arrested for recording police in his own home, despite having a warning posted that the premises were monitored by a surveillance camera. And last July, 20-year-old Adam H. Whitman of Portsmouth, New Hampshire, was arrested for recording cops who had raided a party where they suspected underage drinking. Both Gannon and Whitman were initially charged with felonies. Charges against both were later dropped.

Even in states where the law is clear, it can still be misstated and misapplied. The Pennsylvania Supreme Court ruled in 1989 that the state’s wiretapping statute does not apply to on-duty police officers and other public officials because they have no expectation of privacy. That decision was bolstered in 2005, when a federal judge in Pennsylvania ruled that police had illegally arrested Allen Robinson on the charge of harassing police officers after he videotaped traffic stops from a nearby field. While the case did not rely on wiretapping laws (Robinson was too far away to pick up audio), the judge said there was “no justification for the actions of defendants in violating Robinson’s right to free speech.”

Yet the arrests continue in Pennsylvania. In 2007, 18-year-old Brian Kelly was charged with a felony for recording a traffic stop in the town of Carlisle. Cumberland County District Attorney David Freed told a local newspaper at the time that while Kelly might not have known his recording was illegal (which it wasn’t), “ignorance of the law is no defense.” Freed later dropped the charges.

In 2009 Elijah Matheney of Pittsburgh was arrested for violating the wiretap law after using his cell phone to record an altercation between his friend and a police officer. Those charges also were dropped, and Matheney sued Allegheny County with help from the Pennsylvania ACLU. The suit was settled in July with a stipulation that the Allegheny County District Attorney’s Office inform local police chiefs that recording on-duty police officers is protected under state law. The Pennsylvania ACLU reached a similar settlement with the township of Spring City in 2008 after a man there was repeatedly arrested for recording police.

If the vagueness and inconsistent application of these statutes weren’t bad enough, there is also a clear double standard when it comes to the consequences of misunderstanding what the law requires. Citizens who do not know about wiretapping laws face arrest, felony charges, and jail time. Police and prosecutors who wrongly threaten, detain, arrest, and charge people based on a misinterpretation of these laws are rarely disciplined, much less subjected to civil liability or criminal charges. Police are protected by qualified immunity, which makes it difficult to win damages for an unlawful arrest. Prosecutors are protected by absolute immunity, which makes it nearly impossible.

Although Carlisle, Pennsylvania, police acted unlawfully when they arrested and jailed Brian Kelly for recording a traffic stop, a federal judge ruled in 2009 that Kelly isn’t entitled to damages, because the First Amendment right to record police was not clearly established at the time of his arrest. The judge said the police officer who arrested Kelly was shielded from liability because he relied on an assistant district attorney’s incorrect advice. The assistant district attorney, meanwhile, was protected by absolute immunity for any actions related to his work as a prosecutor. In October the U.S. Court of Appeals for the 3rd Circuit upheld the judge’s decision, although it did send the case back for consideration of Fourth Amendment issues.

The double standard is also apparent in the case of Anthony Graber, the Maryland motorcyclist who posted video of the state trooper who pulled him over. In September, Harford County Circuit Court Judge Emory Plitt Jr. dismissed the wiretapping charges against Graber in an opinion that could have come straight from the ACLU. “Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” Plitt wrote. “When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. ‘Sed quis custodiet ipsos cutodes’ (‘Who watches the watchmen?’).”

If Plitt had endorsed Cassilly’s interpretation of the wiretapping statute, Graber would be facing prison time and a felony record for an act that many people have no idea is a crime, an act that caused little, if any, actual harm. But Graber was right about the law. Cassilly and the Maryland State Police were wrong, and their misreading of the law caused real harm: Graber was illegally raided, arrested, and jailed; for six months he faced the emotional and financial cost of pending two felony charges. Yet Cassilly and the police face no legal sanction, and the odds that Graber will successfully sue them are nil.

‘We Don’t Have Those Problems Around Here’

Prior to 1994, the Illinois wiretapping statute included the privacy provision found in most other all-party-consent states. But in 1994 the state legislature removed the provision, making it illegal to record audio of anyone without her consent. The sponsor of the amendment said his intent was to undo a 1986 Illinois Supreme Court decision overturning the eavesdropping conviction of a man who had recorded two police officers from the back of a patrol car.

First Amendment attorney Robert Corn-Revere says the way the resulting law is being used could mean that “a journalist who records a public meeting without the consent of all persons in the room could be prosecuted.” Corn-Revere believes that regardless of what a state’s wiretapping law says, the First Amendment should preclude prosecuting someone who records police officers publicly performing their duties. The ACLU of Illinois agrees. “Getting this law overturned is a high priority for us,” says Adam Schwartz, the organization’s senior staff counsel. “The First Amendment includes a news gathering component, and included in that is the right to record in public places.”

While the Illinois law has been used to make arrests and to charge citizens for recording police, I have been unable to find a case in which anyone was actually convicted under it in those circumstances. In one high-profile 2004 case, police arrested documentary filmmaker Patrick Thompson for recording their interactions with bar and restaurant patrons in Champaign and Urbana. (Thompson was making a movie about tensions between police and African Americans in the town.) The ACLU of Illinois submitted an amicus brief on Thompson’s behalf, asking the judge overseeing his case to overturn the law on First Amendment grounds. Thompson pleaded guilty to a misdemeanor before the judge could rule on that issue.*

Schwartz says that’s how most of these Illinois eavesdropping cases are resolved. “I think they know this law won’t hold up in court,” he says, “so they arrest and charge people but then offer a plea bargain or drop the charges before it gets to trial. You can’t really blame anyone for taking the offer. If they challenge the law and lose, they’re looking at a felony record and possible time in prison. These are usually people who don’t have a criminal record.”

As long as no one is convicted, no one challenges the law. So the law stays on the books, and it remains a tool Illinois police use to arrest or threaten anyone who tries to record them.

But that may change. In December 2009, the 59-year-old artist and social activist Christopher Drew set out to get arrested in downtown Chicago. Drew was protesting the city’s permitting requirement to sell art on the street. He recorded the event as part of his plan to challenge the ordinance. Drew was arrested, as expected, for not having a permit but now faces an additional felony charge for the recording.

“This city has had all kinds of scandals with police misconduct,” Drew says. “Yet they’re arresting people for recording them? Some of those scandals showed police doing things on video that didn’t match what they put in police reports. Or we only know about the abuse because of the video. The police didn’t bother to investigate the original complaints.”

A Chicago law firm took up Drew’s case pro bono in August, and a month later the Illinois ACLU filed a lawsuit to overturn the statute. The ACLU suit cites six people who have been charged under the law, including Adrian and Fanon Perteet, two brothers arrested for recording their interaction with police at a fast food drive-through. The brothers say they were both victims of police abuse in the past and recorded the stop to protect themselves. They pled guilty to a misdemeanor charge of attempted eavesdropping but were required by the plea agreement to delete the video and apologize to the police.

Illinois State Rep. Chapin Rose (R-Charleston) thinks the wiretapping law needs to be changed. “I’m a former prosecutor, and when you have a law that prohibits something your average Joe thinks is perfectly legal, it undermines respect for the rule of law,” Rose says. “Everyone has a camera on his cell phone now, and we’re making what lots of people in this state do every day, which is to use those cameras in public, a felony.”

In 2006 Rose introduced a bill to amend the wiretapping law, making it explicitly legal for citizens to record on-duty police officers and public officials. The bill died in committee; it wasn’t even brought up for debate. Now Rose says it would be futile to introduce the bill again because “there’s just no interest in Springfield for this sort of thing.”

Crawford County State’s Attorney Tom Wiseman is the man prosecuting Michael Allison, the amateur Illinois mechanic charged with illegally recording police and a judge. Asked if he thinks Allison should spend the rest of his life in prison for recording his interactions with public officials, Wiseman says, “My job isn’t to write the laws. My job is just to enforce them.” Of course, Wiseman does have discretion over whom he charges and what charges he files. But he says Allison committed a felony, and it wouldn’t be proper for a prosecutor to overlook such a thing. (Judge Kimbara Harrell and the Robinson Police Department did not return calls requesting comment.)

“They may have problems with some bad police officers in some of your urban areas,” Wiseman adds. “But we don’t have those problems around here. All of our cops around here are good cops.”

Photography Is Not a Crime

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 of the most disturbing examples of illegal confiscation came shortly after a recorded citizen-police encounter that shocked the country. On New Year’s Day 2009, in front of a large crowd, Bay Area Rapid Transit (BART) Officer Johannes Mehserle shot and killed 21-year-old Oscar Grant at point-blank range as Grant lay on his stomach in an Oakland subway station. Dozens of commuters captured the incident on their cell phones. Within hours, the first mass-recorded police killing of a U.S. citizen was posted all over the Internet. But immediately after the incident BART police attempted to confiscate the phones of subway riders, in at least one case chasing a cell phone owner onto a subway car. In most jurisdictions, including California, police aren’t permitted to confiscate a phone unless the phone itself was used in a crime. At best they can get the owner’s contact information in case they later need to subpoena photos or videos as evidence.

Carlos Miller has become perhaps the best-known citizen activist on the issue of recording and photographing police. In 2007 Miller was arrested for photographing five Miami police from a public road. He was eventually cleared of all charges, but the experience motivated him to start the blog Photography Is Not a Crime, where he documents and tracks cases of people arrested or threatened for photographing or videotaping in public. After starting the blog, Miller was again arrested in 2008 for photographing another Miami police officer, this time during a protest. Those charges were also dismissed after Miller again spent a night in jail. His photos were deleted, though he was able to retrieve them with recovery software.

“There’s this idea that just because charges are dropped, there’s no harm,” Miller says. “But that isn’t right. There’s definitely harm when someone is illegally arrested and has to spend a night or more in jail. Your life is disrupted. You now have legal bills to deal with. There’s also harm when a cop wrongly tells someone they can’t photograph or record. He’s intimidating them into giving up their rights.”

There have been plenty of incidents to keep Miller’s blog humming. In just the last year, people have been wrongly arrested, detained, or threatened after photographing or recording police in West Virginia, California, Texas, Florida, Arkansas, Louisiana, and Missouri. Last July 20-year-old Melissa Greenfield was arrested in Delaware County, Ohio, for using her cell phone to record a cop who had pulled over her boyfriend. The officer in that case claimed in his report that he feared Greenfield might have been holding a gun disguised as a cell phone. Last summer police arrested, harassed, or confiscated the equipment of several people who were attempting to take photos or videos of damage caused by the BP oil leak in the Gulf of Mexico.

In another incident last summer, Washington, D.C., photographer Jerome Vorus was detained over the July 4 weekend after taking photos of police making a traffic stop in Georgetown. According to Vorus, four cruisers and 10 police officers eventually responded to his picture taking. All of them, including two supervisors, wrongly told him it is illegal to photograph D.C. police officers. Asked about the Georgetown incident on a radio call-in program, D.C. Police Chief Kathy Lanier said the city has no policy against photographing police officers, but she also defended the cops, explaining that they don’t like being photographed because “we can have our pictures end up on all sorts of websites, and that can be dangerous for us.”

The First Amendment Right to Record

Seth Kreimer, the University of Pennsylvania law professor, argues that both methods police use to stop people from photographing or recording them on duty—wiretapping laws and catch-all obstruction/interference charges—are unconstitutional. Kreimer notes that three federal appeals courts (for the 1st, 9th, and 11th circuits) have ruled that the First Amendment confers at least some protection on people who photograph or record police in public, as have several federal circuit court judges.

Defenders of bans on recording the police often point to federal court decisions finding that the First Amendment does not require government agencies to release information. But Kreimer distinguishes those cases from laws banning public recordings, writing that “prohibition of unadorned image capture by observers is not a protection against ‘compelled’ disclosure of information. It is a prohibition against recording information that has already been voluntarily released.” Kreimer likens a law against recording police to a law forbidding reporters from taking notes on events they witness in public.

UCLA law professor Eugene Volokh, a First Amendment specialist, agrees, but he isn’t optimistic that federal courts will adopt Kreimer’s view. “You can make a good argument that the right to record police is a necessary adjunct of the First Amendment right to report information,” Volokh says. “But I think one reason the Supreme Court has been hesitant to take up this issue is that it’s hard to see how we could have a news-gathering right as to public conversations that wouldn’t also apply to conversations that one party expects to remain private. The difficulty here is that if the courts recognize such a news-gathering right, they’re going to have to confront this issue, and either decide that people are free to secretly record any conversation they’re privy to, or have to draw lines between some conversations and other conversations that are hard to justify as a First Amendment matter.”

Whether or not the courts recognize a constitutional right to record on-duty public officials in public spaces, a more immediate question is whether prohibiting such recordings—or allowing police to effectively prohibit them—is good policy. Here there seems to be little disagreement, at least outside the law enforcement community. In recent months, driven largely by the Graber...
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Offline Nonstopdrivel  
#3 Posted : Thursday, June 9, 2011 11:24:56 PM(UTC)
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When the government is more worried about being protected from the people than protecting the people it was established to serve, you know your nation is severely sick, if not terminally ill.

I already know which members here will argue that these people had it coming, but they have already established that they are far more interested in civil order than civil liberty.
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zombieslayer on 6/10/2011(UTC)
Offline zombieslayer  
#4 Posted : Friday, June 10, 2011 9:28:40 AM(UTC)
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Originally Posted by: Nonstopdrivel Go to Quoted Post
When the government is more worried about being protected from the people than protecting the people it was established to serve, you know your nation is severely sick, if not terminally ill.

I already know which members here will argue that these people had it coming, but they have already established that they are far more interested in civil order than civil liberty.


When the government is scared of its citizens, it may be time for it to be overthrown. I didn't just say this. Our Founding Fathers did.
My man Donald Driver
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Offline Formo  
#5 Posted : Friday, June 10, 2011 2:14:24 PM(UTC)
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Ahhhh.. Illinois! Not only the most crooked state government in the Union and obviously one of the more crooked justice department in the Union.. But hey.. Isn't our great President from that 'institution'?
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Offline Nonstopdrivel  
#6 Posted : Wednesday, February 1, 2012 6:44:07 AM(UTC)
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Well, we are finally starting to see some good news with a few of these stories. Hopefully, if enough precedents are set, we will see an industry of lawyers spring up who will be willing to take these cases on contingency. Right now, the prospect of risking $200,000 in legal fees for a paltry $6,000 in damages just wouldn't be worth it for most people, even though vital constitutional principles are at stake.

One of the commenters on the story suggests that police officers should be required to carry malpractice insurance like doctors, the idea being that insurance would get prohibitively expensive for the officers who overstep their bounds and have to deal with complaints like this, thus forcing them out of the industry. Another commenter suggests something I have advocated for a long time: officers who are found to have exceeded or abused their authority should be charged and punished in exactly the same way that a private citizen would be charged for the same offense. They should not be indemnified by the police departments from their individual actions. A citizen who threw another person to the ground, wrenching his arm behind his back, would be charged with assault. Why should it be any different for the cops?

Jacob Sullum wrote:
Federal Jury Says Cops Can't Arrest People for Recording Police Encounters
Jacob Sullum | January 30, 2012

Last week a federal jury in Oregon awarded damages to an environmental activist who sued the city of Eugene after a police officer seized his video camera and arrested him for wiretapping. In March 2009, Josh Schlossberg was distributing leaflets outside Umpqua Bank in downtown Eugene when Sgt. Bill Solesbee told him to move along. Schlossberg replied that his lawyer had advised him he was not breaking any laws. Solesbee then entered the bank and came back out. When he approached Schlossberg again, Schlossberg took out his camera and announced that he was recording the encounter. The Oregonian describes what happened next:

Quote:
Solesbee told Schlossberg he needed a permit to set up a table in front of the bank and accused him of blocking pedestrian traffic. Then he asked, "Are you taping me?"

As the two men argued over whether Schlossberg had notified him he was shooting video, the sergeant pointed at the camera and said, "Gimme that. That's evidence."

Schlossberg's lawyer [Lauren Regan] said the sergeant then charged the activist, roughly grabbed for his camera and wrenched his arm behind his back. Schlossberg was thrown to the ground, where his head struck the pavement, and felt the sergeant's knee on his neck, Regan said.

Solesbee seized Schlossberg's camera and arrested him. He was jailed for five hours on charges of resisting arrest and intercepting communications. Prosecutors later dismissed the charges.


As Simon Glik did after he was arrested for recording an arrest in Boston, Schlossberg complained to the police department, which said Solesbee had not done anything unconstitutional or contrary to policy. Like Glik, Schlossberg filed a federal lawsuit to vindicate his constitutional rights when the police department was unresponsive. In a pretrial hearing U.S. Magistrate Judge Thomas Coffin ruled that Solesbee had violated the Fourth Amendment by examining the contents of Schlossberg's camera without a warrant. As a result of last week's verdict, in which an eight-person jury concluded that Solesbee arrested Schlossberg without probable cause and used excessive force, the city is supposed to pay Schlossberg $4,083 for injuries, $1,500 for pain and suffering, and $200,000 for legal fees.

Regarding the verdict's broader significance, Regan tells The Oregonian, "Across the country right now, legal scholars and lawyers are just eating it up, because it's actually a solid statement of the right to privacy in the age of technology." The outcome also reaffirms that photography is not a crime. In both the Glik and Schlossberg cases, courts found that trumped-up wiretapping charges against people recording public events are unconstitutional. Eugene Police Chief Pete Kerns says the department has changed its policy in light of court rulings since 2009 and now discourages such arrests.

Radley Balko covered "The War on Cameras" in the January 2011 issue of Reason. Reason.tv on the same theme:
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Offline Wade  
#7 Posted : Wednesday, February 1, 2012 1:55:58 PM(UTC)
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Originally Posted by: zombieslayer Go to Quoted Post
When the government is scared of its citizens, it may be time for it to be overthrown. I didn't just say this. Our Founding Fathers did.


I used to say, "The revolution is coming, but thankfully it won't be until after I'm dead."

But I no longer think the qualification applies. I think it'll happen before I die. (Assuming I meet the average life expectancy for people my age, that is; given the likely cost of my chronic obesity, I might still get by under the revolutionary wire.

I'd put the odds of it happening before the end of this decade at about 50/50.

(I always feel a bit more optimistic on the first day of classes.)
None of the above. It wouldn't have been a wasted vote. Obama and Romney -- Those were the wasted votes.
Offline Wade  
#8 Posted : Wednesday, February 1, 2012 1:57:50 PM(UTC)
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And my money would be on a nasty one....something combining the worst of France in 1789 and Iran in 1978.
None of the above. It wouldn't have been a wasted vote. Obama and Romney -- Those were the wasted votes.
Offline Nonstopdrivel  
#9 Posted : Wednesday, February 1, 2012 2:08:03 PM(UTC)
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This is you being optimistic? WTF?
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Offline Zero2Cool  
#10 Posted : Friday, January 25, 2013 7:15:57 AM(UTC)
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Wow, that post has a crap-ton of characters.

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