Court ruling could determine whether you have the right to record police in public

Ars Technica reports a federal appeals court this week heard arguments in a lawsuit involving the arrest of a Boston lawyer who used his cellphone to record what he said were police punching a suspect on Boston Common in 2007.

Many states have "one-party notification" wiretapping laws that allow any party to a conversation to secretly record it. But under the strict "two-party notification" laws in Massachusetts, it's a crime to "secretly record" audio communications unless "all parties to such communication" have given their consent. The police arrested [Simon] Glik for breaking this law. For good measure, they also charged Glik—who did no more than stand a few feet away with his cell phone—with "aiding the escape of a prisoner" and "disturbing the peace."

After the charges were dismissed, Glik, with help from the ACLU, sued the city and the officers. The appeals court will decide whether the officers have "qualified immunity" from the suit because they were performing their duties at the time.

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    Comments

    thank you, Menino regime, for appealing

    By on

    Sometimes the stubborn and stupid end up doing the right thing for the wrong reasons.

    Of course, the cost efficient thing would have been to settle this quickly and quietly. I doubt Glik is asking for millions, he just wants vindication.

    But by appealing, the city will have to pay more in lawyers' fees to both sides when they lose.

    There will also be a clear precedent to stop this kind of police state nonsense.

    Unless it's proven we really are a police state.

    I don't think Gilk want to

    By on

    I don't think Gilk want to settle. I think he wants the law changed/precedent set via the courts.

    The issue of police misusing

    By on

    The issue of police misusing the state wiretap law to arrest people who record potential police misconduct has been bothering me for a while.

    This news story motivated me to write to my state legislators, requesting that they change the wiretap law (MGL 272-99) to explicitly allow people to take videos including sound in public places.

    Related 1st Ammendment issues

    By on

    June 19, 2011
    SPR11/156
    I have received your petition appealing the response of the City of Boston (City) to your April 23, 2011 public records request. See G. L. c. 66, s 10(b) (2008 ed.) (Supervisor of Records has authority to resolve public records appeals);
    http://www.malegislature.gov/Laws/GeneralLaws/Part...
    see also 950 C.M.R. 32.08(2) (appeal process).
    http://www.lawlib.state.ma.us/source/mass/cmr/950c...

    Specifically, you requested an electronic stenographic record created during the most recent meeting of the City Council.

    In the past, you have requested copies of the stenographic output created during the City Council meetings and you have been provided with a fee estimate for the provision of the photocopies of the paper records created by the stenographic machine. Based on recent information regarding the capabilities of the particular stenographic machine used during City Council meetings, you had reason to believe that an electronic version of the stenographic output could possibly be created. Consequently, you requested this electronic version of the stenographic output

    On June 6, 2011, Ms. Priscilla Tollen, of the City, informed Rebecca Murray, an attorney with the Public Records Division, that the City does not have an electronic copy of the stenographic documents. There is no obligation for a custodian to create a record in response to a public records request. G. L. C. 66, s 10(a) (2008 ed.); 32 Op. Att'y Gen. 157, 165 (May 18, 1977).
    http://www.malegislature.gov/Laws/GeneralLaws/Part...
    http://www.archive.org/details/reportofattorney197...

    Given that the City does not have the records responsive to your request and there is no obligation to create these records, accordingly, I will consider this matter closed.
    Very truly yours,
    Shawn A. Williams, Assistant Director
    [email protected]
    http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm

    cc:
    Ms. Priscilla Tollen
    Ms. Rosaria Salerno

    ENSE PETIT PLACIDAM SVB LIBERTATE QVIETEM
    She seeks with the sword a quiet peace under liberty
    http://en.wikipedia.org/wiki/File:Massachusetts_co...

    The Commonwealth of Massachusetts
    William Francis Galvin, Secretary of the Commonwealth
    Public Records Division
    One Ashburton Place, 17th Floor
    Boston Massachusetts 02108
    617 727-2832

    Don, please knock it off

    By on

    They have nothing at all to do with each other.

    One involves a court decision that could determine whether you can get arrested for recording police in a public place. The other is a civil issue that nobody can get arrested for.

    A police officer never ceases to be a citizen

    By on

    Good luck on this one, even under the Obama court. SCOTUS has long held that a police officer never ceases to be a citizen. Some of my best arrests resulted from walking up to an offender and saying/asking "Hello, how are you?" For a blog that frequently seeks to carve out new "rights" for every special interest group, it's remarkable that some would seek to diminish the rights of your neighbor dressed in midnight blue. Telling.

    what are you guys talking about?

    very hard to follow this argument if not an insider--yes i read the background but what does the steno request have to do w/ the filming case? why is that reply dated a week forward, is that a little joke or something? and does Officer Fish seriously think this is about depriving cops of their individual liberties vs. cops misusing an unconstitutional law?

    did i miss the memo for bizzaro saturday?

    Damn, sorry, I see your memo's still on my desk

    By on

    Don has a monomaniacal fixation on the stenographer the Boston City Council still employs, no doubt out of sheer inertia, to "record" their meetings and will go on at great length about it in discussions that are, at best, tangentially related, on every single Web site within 128 that allows comments (if you get bored - really bored - do a Google search on: "Don Warner Saklad" stenography).

    No, I don't get the issue of cops' rights, either. They were the ones who brought up the whole "qualified immunity" issue in their appeal (they left it to the city of Boston to argue the lawyer's First and Fourth Amendment rights were not violated by being arrested and having his camera seized, under a law designed to go after telephone wiretappers, not people with cameras in a public place).

    Not just phone taps either though.

    I've seen a few cases where the intent of the secret recording is the issue. A few of them have been during traffic stops where people who get pulled over secretly record the interaction with the police officer with their cellphone. Although I don't recall any official decisions, It seemed me that if the person getting pulled over informed the officer that they were going to record the interaction, the police could not legally do anything about it, even if they wanted the recording to stop. The same would go the other way I assume. The police have no right to audio record you without announcing it to you before hand. You see this with a lot of police stations if you try to call them on the phone. Many of them say something to the effect of "XXX Police, this call is recorded". They do this because a lot of calls that come into stations have legal ramifications if they have information about a crime.

    Departments that have their cruisers or bookings videotaped and audiotaped will also do this. Basically tell the person that they are being audio recorded, so after you tell them, there is nothing they can do about it.

    I believe the qualified immunity comes in when officers are enforcing the laws in good faith, and are protected from lawsuits if they act in good faith. The secret recording law is not a black and white one (in terms of false arrest/civil rights violations), so I don't see this court case going forward.

    If it were a case where an officer arrested someone for something that is clearly outlined in a statute, then the false arrest/civil rights lawsuits can and should go forward.

    What rights are you talking

    By on

    What rights are you talking about?

    The entire problem would go away, without making a special case out of the police, by adding to the wiretap laws, something to the effect of:

    "Nothing herein shall be construed so as to prohibit the video recording of scenes plainly visible from, or audio recording of sounds plainly audible from, any place to which the public has a right of access by law or by customary practice."

    What's your point?

    By on

    Anyone can be recorded in a public place in a non-secret manner.

    Maybe people would stop trying to rein in the "rights" of our neighbors in midnight blue if the neighbors in midnight blue didn't act as if the color and badge on their sleeves made them automatically right and superior to the rest of their neighbors.

    Amen!

    By on

    Amen, Kaz!

    It is, of course, important to point out that not all police act this way. But the minority bad apples that do certainly stink up and ruin the whole big barrel!

    Also:

    Anyone can be recorded in a non public place in a non-secret manner as well.

    Not quite the same

    In an non-public place, the property owner has a right to forbid taking pictures, making audio recordings, etc. I'd want the law to allow someone to stand on the public sidewalk and record anything that can be seen and heard with the unaided eye / ear, but not, for example, to stand on the same sidewalk and use special equipment pointed at a private dwelling to record things happening inside.

    I'm saying it isn't against the law

    You can go onto private property and take all the pictures you want and audiotape anyone you want. You can get arrested for breaking into that private property or trespassing on that private property, but you can't be arrested for audiotaping anyone.

    I'm saying the public/private element isn't included in this statute.

    Not in the statute as it now stands.

    I'm not following your argument. If the wiretapping law does not prohibit you making an audio recording on private property without the consent of the people being recorded, what exactly does it prohibit?

    It prohibits secret recordings anywhere

    If you invite me over your house and I secretly record our conversation: Illegal

    If you invite me to a bench on the Boston Common and I secretly record our conversation: Ilegal

    If you invite me over your house and I tell you that I am going to record out conversation with my cell phone and I hold it in my hand while we talk: Not illegal

    If you invite me to a bench on the Boston Common and I tell you that I am going to record out conversation with my cell phone and I hold it in my hand while we talk: Not illegal

    The grey area is when your intent to secretly record someone isn't clear. If someone holds an open cellphone in their hand while they have a conversation with someone is that a secret recording? What if you are in a very public place and you are holding a video camera that appears to be off but isnt? What if you tell someone that the audio is off but it isnt? Can you do that to government agents? Can government agents do that to you? Can you lie about your intent?

    Having the power

    By on

    to slap people around in public and arrest people who were recording the event on trumped-up charges isn't a "right."

    Well it would depend.

    Police Brutality is a fact. It happens and it is wrong and illegal.

    But there are also a lot of people who have no idea as to what kind of force the police can use against someone. So if a cop is using the proper amount of force against someone, and a bystander doesn't think that amount of force is proper and that bystander inteferes with the situation by some sort of action, then that bystander would be breaking several possible laws. And that bystander could aslo start a blog and say how the police were beating some man and he was just innocently videotaping the action. The bystander could be wrong in that situation

    To be fair, I will include a seperate scenerio:

    The police are in a situation where they illegally use excessive force against someone. A bystander takes out his cell phone and points it at the excessive force situation and video and audio records it. The cops run over to the bystander and tell him to turn the cell phone off or get arrested. The bystander refuses and gets arrested for illegally recording someone. In this case the police would be wrong.

    So, under this law...

    By on

    If I were to videotape a parade that included an audio recording, would I be in violation of the wiretapping law since I did not notify everyone involved that I was recording?

    What about a sporting event? What about parents recording concerts or plays? It seems as though the city is arguing that everyone would have to be expressly notified that they are being recorded even when no one is expecting privacy.

    Well that depends, are the

    By on

    Well that depends, are the people in the parade video cops? Then yes, straight to the slammer for you.

    Thats the whole thing about this. Nobody has an expectation of privacy in a public setting, especially when the camera is in plan view.

    Compare recording devices a. Diamante and b. Cell phone

    By on

    Compare recording devices a. Diamante and b. Cellphone

    a. Diamante recording
    At Boston City Council a computer file with the full record of the most recent public meeting is stored on the Diamante, trivial to download or send
    http://www.stenograph.com/ProductDetails.aspx?prod...
    http://www.stenograph.com/marcom/downloads/diamant...

    b. Cell phone recording. Cellphone speech to text.
    http://www.samsung.com/us/mobile/cell-phones/SPH-M...?
    http://www.samsung.com/us/support/downloads/SPH-M2...

    No more stenography posts in this discussion

    By on

    Next one just gets deleted.

    Nobody is stopping you from going to City Council meetings and setting up your own stenography device. There's even a power outlet in the "press" section you can use (I have never seen anybody told to leave a seat there because they're not press).