Leonardo Angiulo: Citizens Recording Official Police Business
Monday, July 07, 2014
an incident along a California highway, present episodes raising concerns from both observers and the observed. While the First Circuit Court of Appeals has said citizens have a right to openly film members of law enforcement who are exercising their duties in public places, that right is not unlimited. Where the line is between lawful recordings and illegal surveillance in Massachusetts appears to remain a fact specific question.
From a law enforcement perspective, things like traffic stops and random house calls are highly stressful situations. Unfortunately for police officers, their career is both a daily job and subject to the high standards of a public servant. In addition, they are paid to carry firearms for a reason: they interact with people who may want to become violent or are already there. During the course of their work they may need to use force. The idea of being videotaped, during what are already emotionally charged situations, may add an unnecessary dynamic and could cause someone to pass judgment on their actions by taking a moment out of context. These are just some of the reasons law enforcement may not want to be taped doing what they do.
Of course, no matter what your profession is, there are very few people okay with the idea of being on camera during their daily lives. Modern technology has developed to a point, however, that at any given moment we could be on someone's screen somewhere. Business owners remotely monitor videos trained on cash registers, traffic lights have cameras taking photos when you run red lights, and Edward Snowden's revelations about the NSA have us wondering whether our personal photos and steamy phone calls to significant others are sitting in a big electronic vault somewhere. It's fair to say we have evolved into a surveillance society.
So what, then, do we do with the question of whether citizens can record police acting in the course of their employment? The First Circuit Court of Appeals ruled on this very subject a few years ago in the 2011 decision of Simon Glik v. City of Boston. Those learned justices ruled unequivocally that one of the fundamental liberties safeguarded by the First Amendment is the right to film government officials, including police, who are discharging their duties in a public space. They also noted, however, that this right is not unqualified.
The facts of the Glik case appear to be firmly on the side of lawful recording. In 2007, Mr. Glik was walking through Boston Common when he became concerned certain officers were using excessive force in conducting an arrest. He then audio and video recorded what he saw on his cell phone approximately ten feet from the action in, what the officers admitted, was an open and obvious manner. Mr. Glik was arrested at that time for violating section 99 of chapter 272 of the Massachusetts General Laws, which is commonly known as the wiretap statute. That name is somewhat misleading in that it criminalizes not just tapping phones, but any warrantless, secret recording of oral communications not consented to by both parties. Fortunately for Mr. Glik the criminal charges were dismissed against him in State court and he later sued in Federal Court for civil damages resulting in production of a well written decision on the constitutionality of recording police activity.
As those judges stated, however, this right is not unqualified. The courts of Massachusetts have interpreted the wiretap statute to criminalize all secret recordings of oral communication except those made pursuant to a warrant. Two local decisions of note, interestingly made before the decision in Mr. Glik's federal case, present examples of how secret recordings of police by citizens will still result in prosecutions and convictions affirmed by state appellate courts.
In the 2001 case of Commonwealth v. Hyde, a gentleman was stopped while driving his car, took offense to the manner in which he was being treated and so surreptitiously activated an audio recording device. He later took that recording to the local police department in support of his grievance, that recording was collected from him and was later used at trial in support of the complaint for wiretap violations. The Massachusetts Supreme Judicial Court upheld the jury's conviction. In support, they cited the plain language of the statute, which prohibits any secret audio recordings, not made within limited exceptions. They further ruled that the law applied whether the target of the surveillance was a police officer or not.
This same logic was used in the 2007 Massachusetts Appeals Court case of Commonwealth v. Manzelli. The facts of that case include a defendant appearing at a political rally and approaching a member of law enforcement with a microphone tucked into a zippered front pocket of his jacket. After asking several questions, the defendant was himself asked whether or not the officer was being audio taped. The defendant's response was to run away and throw a recording device into a nearby crowd. While there are several legal issues discussed, at the core of the decision is a recognition that secret audio recordings are illegal in Massachusetts. The fact that a defendant records police officers does not make the recording more or less legal.
Exactly where that line is between illegal secret surveillance and constitutionally protected open recording of police activity remains a question of fact. Like all questions of fact, the final decision will usually only come on trial day. In the case of jury trials, that means some six members of the community in a local district court, or twelve in a county superior court, will have to sit and weigh testimony to determine what happened. That is, of course, unless a judge allows a motion to dismiss before that.
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