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Mass. Court Says Constitution Protects Filming On-Duty Police
Even in a country and a world where copyright can be claimed as an excuse to prevent you from taking a photo of a giant sculpture in a public, tax-paid park, and openly recording visiting police on your own property can be construed as illegal wiretapping, it sometimes seems like the overreach of officialdom against people taking photos or shooting video knows no bounds. It's a special concern now that seemingly everyone over the age of 10 is carrying a camera that can take decent stills and HD video. It's refreshing, therefore, to read that a Federal Appeals Court has found unconstitutional the arrest of a Massachusetts lawyer who used his phone to video-record an arrest on the Boston Common. (Here's the ruling itself, as a PDF.) From the linked article, provided by reader schwit1: "In its ruling, which lets Simon Glik continue his lawsuit, the U.S. Court of Appeals for the First Circuit in Boston said the wiretapping statute under which Glik was arrested and the seizure of his phone violated his First and Fourth Amendment rights."
The police just learned an important lesson: Don't charge lawyers with the stupid rules you use to get away with shit.
For large sets, this will be our guide even unto death, for the LORD will work for each type of data it is applied to...
You are missing the recent case in Rochester where a woman was arrested on her own front lawn for videotaping an arrest going on just off of her property. IIRC the D.A. decided to not bring the case to trial, but the police continued to harass the woman and a demonstration held against the arrest. There was also a news conference with one of those great police organisations going off about how the video recording makes them "less safe."
What bollocks... if the tables were turned you know the police would scream that there was no expectation of privacy on a public street... and the woman was standing on her very own lawn.
This isn't a Massachusetts court. This is a federal court that actually knows what the 1st Amendment is, and more importantly thinks that it matters. The Supreme Judicial Court, which is the Massachusetts high court, has had its chance to look at this law more than once, and has come to the wrong conclusion every time. It took a federal court to realize what any moron should know - that prohibiting citizens from recording public officials doing their jobs on a public street is an invitation to abuse.
This ruling is in line with Comm v. Hyde. There is NOTHING new about this ruling, at least regards the recording issue. There is nothing wrong with OPENLY recording cops in MA or anyone else who are speaking in normal voice in public. By being in public, they are forfeiting their privacy. This is inline with 4th Amendment thinking.
In technical terms, the above is 3rd party recording that is not considered 3rd party eavesdropping because there is no REP (reasonable expectation of privacy).
Now, what this ruling DOES bring as new is the cops who think that they have veto power over your OPEN recording of them are now on notice, in federal court you have zero shelter from the liability of arresting someone because you don't like that they are recording you in public. This is new. The cops are not being granted qualified immunity and are on the hook for the damages of denying Glik his rights by improperly arresting him. That is a step in the right direction.
The problem here is if you are recording your interaction with a cop, what does that cop have to do to stop your recording? "Detain" you, that is what. Once they do, for their "safety" of course, they now control your recording equipment and can turn it off. Nothing in the above ruling changes this. They can do this, beat you to a pulp, or just ignore you to illustrate both extremes, and there will be no record of it.
What has not changed is Comm v. Hyde which makes 2nd party recording a privacy issue. This is not the case in 38 other states but here in MA, people are presumed to have a REP right from secret recording even when the recorders are privy to what is being said. That is absurd if you dissect it, but that is where Hyde dropped us. So for an example, if party A has a conversation with B, A can't record it because B supposedly has a REP privacy right yet A has heard everything B said. They were having a conversation for christ's sake. B gave up their privacy to the statements once they engaged in said conversation. So A can detail the conversation to whomever will listen but if B denies what was said or that the conversation even took place, it becomes a he said, she said situation. Now, who does this protect? It protects B. It protects liars, cheats and thieves. Because it allows them to lie about what took place. There is a line in Hyde where the SJC basically acknowledges this by stating to allow surreptitious recording of cops will allow the citizens to monitor and find corruption.
Who are you? The new #2 Who is #1? You are #617565. I am not a number, I am a free man! Muhahaha.
They'll never permit that to happen. No, it'll get settled with a victory in some lower level court that won't matter. You can't appeal if you win.
You should have read the fine article. It is amazingly strong. This was not about a guy being arrested and then found innocent in court. This is about a guy suing the police for being arrested and winning the case.
First, the judge said that the right to film a police officer, or any other official, while doing their duty in a public state is so evidently guaranteed by the First Amendment that the judge doesn't even have to refer to any case law. And it is so clearly legal that any police officer arresting you for it is not just making a mistake, but breaking the law.
Second, the judge said that the Massachusetts wiretapping law is about _secretly_ recording. Interestingly, it has nothing to do with the police's right to privacy or not, and nothing to do with consent to the recording, but the only important thing in Massachusetts law is whether the recording is done secretly or not. So a secret recording could be illegal. An open recording, like this man did, with a phone in open view of the police men, is absolutely legal. And it is so obviously legal that a policeman arresting you for wiretapping in this situation is not just making a mistake, but breaking the law.
So what we learn: You can record a policeman doing his job in a public place, but you have to do it openly.
Someone who goes to cort
If you aren't part of the solution, then there is good money to be made prolonging the problem
Being a former Marine myself, I can speak on this subject with some experience.
First, Marines are indoctrinated from the very beginning that harming civilians -- aka "collateral damage" -- is something to be avoided as much as is humanly possible. Expecting perfect, rational judgment by everyone, everywhere, all the time, while having bullets zipping past you and RPG's exploding a few yards away is unrealistic, but the deliberate fragging of a civilian is not only frowned upon, it's considered cowardly, dishonorable, and unbecoming of a Marine. Contrary to popular opinion, the U.S. military doesn't want a bunch of bullies running around with rank and weapons. Boot camp exists to weed out the weak *and* the morally questionable types. Some slip through; no system is perfect. But the *intention* is this kind of "person" never makes it to a point where he can be a power-tripping, gun-toting threat to an otherwise-harmless civilian.
That being said, I personally know of many instances in Iraq and Afghanistan where enemy combatants -- not in uniform, thus indistinguishable from civilians -- pretend to surrender, even going so far as to carry white flags. When Marines try to accept their surrender, they drop the flag and open fire, or their buddies open fire from concealed positions elsewhere. The use of women and children as human shields is the norm, not the exception. There are instances where women and children have turned up dead in areas where no Allied forces have operated, yet their deaths are blamed on Allied forces, the 7.62mm bullets in their bodies blamed on Allied troops wielding clandestine AK-47's instead of the 5.56mm NATO rounds in our M4's. It doesn't take a rocket scientist to divine there's probably more than a little "embellishment" coming from an opposition that knows civilian casualties cause all sorts of bad press for Western forces when a sympathetic press picks up and carries such photos without ever bothering to find out the circumstances under which they were obtained.
I agree with you that any Marine, soldier, sailor, or airman who willingly, knowingly, maliciously kills -- or attempts to kill -- an unarmed, non-threatening civilian is deserving of the harshest punishment the UCMJ can mete out and then some. Such actions tarnish all of us and make a difficult mission even harder. That said, do not be so quick to rush to judge the Marine and idolize the reporter. There's a lot more to the story than can be communicated in a headline. Never forget a reporter's best interests are served by stories that generate the maximum amount of controversy, whether that controversy is deserved or not. Unless you were there, in the room, and knew everything that the Marine knew when he pulled the trigger, you know nothing more than what the reporter told you. Knowing half the facts is often worse than knowing none of them.
Semper Fi
In the end they will lay their freedom at our feet and say to us, Make us your slaves, but feed us. - Fyodor Dostoyevsky
You're still off a bit. This case is more recent, circa 2007. It references a 1983 law and cases which brought the law into existence as well as recent cases that drive the point home. but the case comes from actions that happened on October 1 2007.
However, this isn't about whether the cops did wrong or not with this ruling. It's about whether they believed they were in the right at the time of the actions. You see, many law enforcement and government officials have an immunity to prosecution and civil suits if their actions were intended to be lawful but are somehow not. An example of this in action would be a cop speeding with his lights and sirens on to get to an accident scene and render assistance and getting into an accident of his own. He would be removed from liability for the accident and insurance would take care of property damage. But if he was speeding like that to get back to the station for shift change, then he's liable for all the crap you or i would be liable for should be do the same.
So the guy involved filed a suit, the cops said- we have immunity-, the judge said no you do not-, they appealed-, the appeals court said, not only do you not have immunity, there is good reason to believe you knew you were violating the constitutional rights of this kid when you took the actions you did.
The title of this story is a bit misleading. While the appeals court said there is a right to film police in public while on duty, it said so in the respect that the lawsuit against the police can go forward. But on another note, it pointed to where this constitutional right to film the cops has already been well settled by other case law and indicates that any law attempting to suppress it would meet the same problems their claim to immunity met.
There have been a couple of cases of the internets picking up on a police officer making a wrong call that was an understandable mistake (such as a plain-clothed off duty officer pulling a gun on a motorcyclist). But by far what show up are genuine abuses: officers ruthlessly beating compliant suspects while surveillance cam operators intentionally look the other way. Unarmed men lying on the floor in a prone position getting shot in the back. Rodney King, which reflected the abusive police interactions in LA at the time. Or even this interpretation of this law itself, where your only protection against abuses is considered illegal on a BS technicality. And these show up in the destruction of evidence (collecting cell phones) and denial of evidence (the surveillance camera footage).
Personally, I think we do give officers a lot of moderated attitude. A friend had a gun pulled on him at a (15 mph) speeding stop by a trainee officer. The elder officer overseeing her pulled her aside, taught her proper procedure, and let my friend off with a non-documented warning. It was a completely non-procedure way of dealing with an officer drawing her gun without provocation, but it was handled well. I had a gun drawn on me for having a broken white plastic Halloween samurai sword as a teenager. But the professionalism of the officer never made me feel in danger.
A lot of these officers are not used to being on the internet. They're not used to the level of abuse where if 10,000 people are calling for the immediate dismemberment of you and your family, you're doing fine. Someone makes a flash video of you beating down dancing flower children, it pretty much goes with the territory. Unfortunately, most people don't have a thick enough skin for the internet, and it is sad that this may be their first exposure (except the beating down of the dancing flower children cop. That guy deserved it.)
95% of the officers I've interacted with have been professional, helpful (or at least trying to be), and safety-conscious. But some are abusive when they think they can get away with it, and the only protection we have is documentation. The moment we lose the right to document our interactions with the police, is the moment the police go from helpful to a threat. And that puts everyone, civillians and police, at risk.
The ______ Agenda
All the way to the Supreme Court, and we can have a final ruling that recording public officials in public is, you know, legal.
You don't need it to go that far. I can't see any city or state wanting to contest this much higher, in light of the fact that the ruling was pretty clear. It was after all, just the officers that contested it this far. They didn't have any governmental backing, and the Boston Municipal court had already bitch slapped the officers down and dismissed all charges. I just don't see those guys having the financial backing to go much further.
Unless some other circuit rules contrary, this is the precedent that will be cited country wide.
Sig Battery depleted. Reverting to safe mode.
Dead cops and dead marines is your preference, coward?
Honestly? I think there's more than enough cops. Way too many, if you ask me.
Think about it for a minute. How many "law enforcement" agencies have jurisdiction over you where you sit right now? "Just a few", you might think... Let's count, then, shall we?
We'll assume, for the sake of argument, that you live inside a major city. We will also only count the offices that can legally break into your house with "probable cause", and maintain staff trained and equipped for exactly that.
1: City Police
2: County Police (Sheriff)
3: State Police
4: Federal Marshals
5: FBI
Nothing surprising so far, right?
6: Border Patrol (in a surprising large number of places that aren't actually near a "border")
7: Department of Homeland Security
8: Drug Enforcement Agency
9: Internal Revenue Service (yes, they maintain personnel for "active" law enforcement duties)
10: Alcohol, Tobacco, Firearms and Explosives
11: Public School District Police Department ("Resource" Officers - yes, they are real police, and yes, they can break into your house to arrest you)
12: Local College Police Department (see above)
13: Highway Patrol (admittedly a bit of a stretch, but there are several circumstances where it is perfectly legal and within their jurisdiction to "assist" in a raid or otherwise break into your home)
So in this list, there are twelve agencies (thirteen if you want to count "edge cases") that, without a doubt, are capable of breaking into your home to arrest you. These are just the ones that have jurisdiction and authority to break into your private residence, regardless of its location within the United States, to "detain" you. There are also plenty of localized "special task forces" that can be granted "the duties and privileges of rank pertaining to" law enforcement officers, if they don't already have them, for the special purpose of terrorizing^W protecting citizens. Shiny badges and guns seem to make lots and lots of people more than a little power-mad.
To make it worse, there are agencies such as the New London, Connecticut Police Department, who require their officers to be unintelligent in order to make them more likely to follow orders without thinking, and "less likely to get bored".
Youtube is full of normal, law-abiding folks who have been killed or seriously injured by those charged to protect and serve, with little or no provocation. One of my favorite clips is a Boston Area Rapid Transit Officer shooting a man in the back while he is face down on the ground in handcuffs. A favorite headline of mine is the man who died falling from a second story ledge after being tazed by law enforcement officers. Another of my favorite stories is the school resource officer who tazed a fourteen-year-old girl who wasn't even being threatening, she just wasn't doing exactly what she was told quite quickly enough.
There's plenty of reason for ordinary, average, law-abiding citizens to hate and fear law enforcement officers. We get new ones every day. How much fear, uncertainty, and doubt can this institution resist?
I, for one, applaud "dead cops and dead marines" when they overstep their bounds while applying deadly force. Enforcing the law does not place one above it.
Also, I wonder how long it will be before the surveillance society we live in is "good enough" that an audio/video record of any given subject will be available for anything and everything that person has done in the past [24 hours|7 days|30 days|ever in their life]... more importantly, is that a bad thing? Could we do away with [some|most|all] of the law enforcement [officers|agencies] at that point?
As for being a coward... well, say it to my face.
(Yes, the irony is implicit, and the internet is full of tough guys).
--
I may sound paranoid, but is it paranoia if they really are out to get you?
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