Wtf is with people getting arrested for recording public servants in public places?
John Stossel summarized the sensible position well:
I believe in the right to privacy.
Yet I can think of someone who deserves very little privacy—a policeman making an arrest. Unfortunately, in some states it’s a crime to make a video of a policeman doing just that. People recording police have been threatened, detained, or arrested. Some were jailed overnight.
That’s wrong. Police work for the public, they’re paid with tax money, and most importantly, they have tremendous power. They’ve got the legal right to pull guns, detain us, lock us up and, in some cases, shoot us. The potential for abuse is great. So it’s a good thing that modern video cameras are now so commonplace. Any abuse of police power in a public place is likely to be recorded. Why should that be a crime in some states?
People can engage in public photography of public Federal buildings. Claiming otherwise is bullshit and that is exactly what happened in New York, resulting in a lawsuit that was settled by the Government issuing a proclamation noting that what the man was arrested for without merit and resulted in the lawsuit, was in no way legally improper.
Recording encounters with law enforcement and other public officials is different. Basically, you can and will be arrested for anything that an enforcement official doesn’t like. If you are willing to get arrested then unless you are violating your states wiretapping laws by recording someone without their consent – you have a good chance of getting your case ruled in your direction and maybe even making some change like the guy in this story did.
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.
Reason Magazine covered this war on cameras:
Who will watch the watchers? In a world of ubiquitous, hand-held digital cameras, that’s not an abstract philosophical question. Police everywhere are cracking down on citizens using cameras to capture breaking news and law enforcement in action.
In 2009, police arrested blogger and freelance photographer Antonio Musumeci on the steps of a New York federal courthouse. His alleged crime? Unauthorized photography on federal property.
Police cuffed and arrested Musumeci, ultimately issuing him a citation. With the help of the New York Civil Liberties Union, he forced a settlement in which the federal government agreed to issue a memo acknowledging that it is totally legal to film or photograph on federal property.
Although the legal right to film on federal property now seems to be firmly established, many other questions about public photography still remain and place journalists and citizens in harm’s way. Can you record a police encounter? Can you film on city or state property? What are a photographer’s rights in so-called public spaces?
These questions will remain unanswered until a case reaches the Supreme Court, says UCLA Law Professor Eugene Volokh, founder of the popular law blog The Volokh Conspiracy. Until then, it’s up to people to know their rights and test the limits of free speech, even at the risk of harassment and arrest.
Who will watch the watchers? All of us, it turns out, but only if we’re willing to fight for our rights.