You Have a Right to Record the Police

Article by Glenn Reynolds.


All over America, police have been arresting people for taking video or making sound recordings of them, even though such arrests are pretty clearly illegal.  Usually, the charges are dropped once the case becomes public, and usually that’s the end of it.

But sometimes things go farther, and in two recent cases, they’ve gone far enough to bite back at the police and prosecutors involved.  We need more such biting.

The first case comes from Barack Obama’s hometown of Chicago.

Tiawanda Moore had made a sexual harassment complaint against a Chicago patrolman. When she was visited by police Internal Affairs officers who tried to persuade her to drop the charge, she recorded the audio using her Blackberry. Though the audio reflected rather poorly on the Internal Affairs officers, the response of the Chicago state’s attorney was to act not against the offending officers, but against Ms. Moore, charging her with “wiretapping.”

After the tape was played, the jury took less than an hour to return a verdict of not guilty.  “When we heard that, everyone (on the jury) just shook their head,” said one juror interviewed afterward.  “If what those two investigators were doing wasn’t criminal, we felt it bordered on criminal, and she had the right to record it.”

Illinois law makes it illegal to record conversations with public officials without their permission.  If the officials are law enforcement officers, the penalty can be as much as 15 years in prison.  It’s hard to see what purpose such a law could serve, except to protect corrupt officials from exposure.

It’s also hard to see why a prosecutor, like Cook County state’s attorney Anita Alvarez, would bring charges against a citizen who recorded police officers who were improperly trying to get her to drop charges against a fellow officer she says groped and propositioned her during a domestic violence call.  Perhaps the prosecution was trading favors with the police, or perhaps it was merely incredibly insensitive.  Chicago voters should pay heed, either way.

In Massachusetts, meanwhile, the right of citizens to record the police has been upheld by the United States Court of Appeals For The First Circuit in the case of Glik v. Cunniffe.  Passerby Simon Glik caught sight of three police officers arresting a young man. Hearing an onlooker shout that the officers were hurting the man, Glik turned on his cellphone and began capturing video. The police officers objected to being recorded, arresting Glik and charging him with violating the state’s “wiretap” law by recording them without their consent, seizing his camera and memory chip as evidence.

The U.S. Court of Appeals held that the right to record police officers in public is a “clearly established” part of the First Amendment’s protections, and held the officers were thus not entitled to qualified immunity, meaning that they could be sued for their actions.  The decision partially rectifies a situation in which for ordinary citizens, ignorance of the law is no excuse, but for police officers and other government officials, it’s an excuse that protects them from being sued.

In these cases, the courts (and juries) stood up for what should be an obvious proposition:  Police officers, doing their jobs on the public dime, don’t have any sort of privacy right against the citizens who pay their salaries.  Those who feel otherwise — mostly police officers and those connected with them — need to rethink the relationship of government to the citizenry, and perhaps reread the Constitution’s prohibition on “titles of nobility.”

In an era when government feels free to record citizens whenever they’re out in public, government officials need to recognize that this recording business works both ways.  Want a surveillance society?  Be prepared to live in it.

Of course, the efforts to intimidate citizens via prosecutions and arrests are doomed to fail in the long run.  Pretty much every cellphone now is a video camera, a still camera, and an audio recorder.   There are even smartphone apps specifically designed for recording police encounters and uploading them to the Web so that confiscating the phone doesn’t do any good. Tiny video cameras abound nowadays, including cameras that fit in the frames of sunglasses for added inconspicuousness.  And they keep getting smaller and cheaper.

You can’t arrest everyone with a camera, especially when you don’t even know they’ve got a camera.  But that’s not really the issue.

Technology may be winning, but the real problem is that America has a class of government workers who believe that they are above citizen scrutiny, and who are prepared to abuse their powers to avoid that scrutiny.  The only solution for this is to punish offenders severely enough that others learn their lesson.

Some have proposed a federal civil rights law specifically recognizing the right of citizens to record police, and including severe punishments for police and prosecutors who violate that right.  Frankly, it seems like a pretty good idea. Until then, however, we need to educate both police and citizens that photography is not a crime, even when those who wield government power, ostensibly on behalf of the citizenry, would rather not be photographed.

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