Powerless Against Police: Recording Your Interaction with Police is a No No

by Matthew L. Schafer

Citizens in Massachusetts, Maryland, and Illinois should think twice before recording on-duty police action for fear of violating state eavesdropping laws.

On a dark night in March of 1991, George Holliday began recording an interaction between Rodney King and four Los Angeles Police Department officers.  The officers repeatedly tased and beat King, which resulted in multiple broken bones.  Eventually, with the videotape as evidence, two of the four officers were convicted and sent to jail.

More recent examples of police overreach abound.  At a September 17, 2007 University of Florida event featuring Sen. John F. Kerry [D-MA], Andrew Meyer, as University of Florida student, was tased after ranting at Sen. Kerry.  Multiple videotapes of the event were posted to Youtube.  The most popular video of the incident has been watched almost 5 million times.  The incident raised questions about the excessive use of tasers by law enforcement personnel.

Currently, an Illinois man has been charged with a Class 1 felony for audio taping his arrest in the Chicago Loop.  Chris Drew, of the Artists’ Free Speech Movement, was arrested in the Loop for refusing to abide by the peddler’s law by not registering with the city before he sold his art.  The charges for the misdemeanor peddling violation were dropped, while the charge for violating the Illinois Eavesdropping law was not.

The Illinois Eavesdropping Law is one of twelve other states to require that all parties consent to being recorded.  Illinois’ law is especially strict, as it does not include like many other states, an exception that allows for videotaping in spaces where “no reasonable expectation of privacy exists” (i.e. public spaces).  If consent of all parties is not offered, citizens recording “conversations” can be charged with a Class 1 felony, which carries a penalty of up to 15 years in prison and a $25,000 fine.

In practice, the eavesdropping law is currently being used in several states to either prevent citizens from recording on-duty police officers or to punish them when they do record on-duty police officers.  The police officers’ rationale is that they did not consent to being recorded, which violates the “two-party consent” rule in the eavesdropping law.

In a motion to dismiss the felony charges against Drew, his attorneys argued that the Illinois eavesdropping law is too broad in its definition of “conversation” and violates Drew’s First Amendment rights.  The March 26 motion was denied.

“The Illinois Eavesdropping Law fails to properly balance [the rights of citizens and the rights of police officers], privileging the privacy interests of police officers over the public’s right to monitor police conduct,” Attorneys Mark Weinberg and Leonard Goodman argued.  “This is because the Illinois Eavesdropping Law employs a crude, one-size-fits-all approach to any and all conversations, treating the private conversations of citizens in their homes the same as it treats conversations between citizens and police officers on the public way.”

In a similar case in Massachusetts, a lawyer was walking past three police officers who were attempting to remove a plastic bag from a teenager’s mouth.  The lawyer, Simon Glik, who felt the police officers’ use of force was excessive, began recording the arrest on his cell phone.  He himself was later arrested for violating Massachusetts’ eavesdropping laws.

“In our Republic the actions of public officials taken in their public capacities are not protected from exposure.  Citizens have a particularly important role to play when the official conduct at issue is that of the police,” wrote Chief Justice of the Massachusetts Judicial Court Margaret Marshall in a dissenting opinion to a case that upheld a lower court eavesdropping conviction. “Their role cannot be performed if citizens must fear criminal reprisals when they seek to hold government officials responsible by recording–secretly recording on occasion–an interaction between a citizen and a police officer.”

If one thing is certain, videotape that has caught police wrongdoing on camera has changed the course of events in United States.  If we accept that on-duty police who are in public areas have a right to privacy that is paramount to that of the citizen, police will not be held accountable and the citizen will be done a disservice.  What if we had never seen the King tape?  What if we never see the next tape?

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About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
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2 Responses to Powerless Against Police: Recording Your Interaction with Police is a No No

  1. Pingback: Top Ten: A Year in Media as Told by LWR | Lippmann Would Roll

  2. Pingback: Reporter Arrested for Recording Open Meeting in D.C. | Lippmann Would Roll

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