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Outraged over an arrest on Boston Common

Gary McGath cannot believe a Boston lawyer faces charges for using his cell phone to video a drug arrest on the Common last Oct. 1:

... Officer Peter Savalis was apparently doing something he didn't want to be caught doing, so he arrested [attorney Simon] Glik. The City of Boston brought felony wiretapping charges. The charges against him simultaneously claim that his recording action was surreptitious and that his holding out the phone obstructed the cop. That's right, Savalis is simultaneously claiming that he almost didn't notice the phone and that it was so much in the way that the drug suspect almost got away. ...

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Comments

That last line of the quote is priceless.

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http://www.krages.com/phoright.htm
(or google "photographers' right")

Also:

http://www.aclu.org/FilesPDFs/dwb%20bust%20card7_0...

If you regularly take photos in public, at the very least read both thoroughly. Best to carry both with you, too. Samples:

a)It is not illegal to take pictures of a government building, only military installations where the base commander has deemed it necessary to prohibit photography.

b)You can take pictures of a private building as much as you like, as long as you're standing on public property. This includes stuff like nuclear power plants, chemical plants, food processing plants, etc. (photographers have been intimidated while taking photos of said buildings.)

c)Private security guards, police, or federal marshals cannot confiscate your equipment or destroy/delete/confiscate your photos.

d)There is absolutely nothing illegal about photographing police, EMS, fire, or city personnel doing their jobs, including arresting someone. However, if an undercover officer was involved in the arrest, police may approach you. Hopefully they will take the "one of our officers is working undercover, could I ask you to remove the photos" route. Maybe they can get a court order to keep you from publishing photos with a specific officer in them- but they can't arrest you or demand you delete pictures or confiscate them.

You ARE obligated under MA law to identify yourself to an officer (not private security) if asked, and you can be arrested for failure to do so on that alone!

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This isn't about the images. It's about the sound. You have every right to take a picture of someone in public. You have no right to make a sound recording of someone in public. That's where the "wiretapping law" comes in.

For a primer:

Twelve states forbid the recording of private conversations without the consent of all parties. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.

That's why the cops asked him if he was using audio.

When one of the officers asked if he was using audio and video on the phone, Glik reportedly said: “I sure am using audio.”

Here's the law.

This guy is a lawyer, and it looks like he's got a posse. I hope he wins his case, and I hope the law is changed. But I would seriously not recommend making any video recordings with sound of police doing anything. You might argue it's a poorly-written law, and you might find a judge who agrees with you, but it is a very poor idea to make audio recordings of people without their permission in Massachusetts, because it is in fact illegal. If you have a web-cam on your own porch, you would do well to turn the sound off.

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You're correct that the sound, not the photography, is the issue. But you're wrong when you say "You have no right to make a sound recording of someone in public." It may be illegal, but people have every right to monitor the actions of officers of the government carrying out their actions in public.

There's a common notion that rights are a gift which governments can hand out or take away at will. In fact, rights belong to people and are inalienable. Governments can violate rights, as they did in this instance. They can't make rights cease to exist by passing laws any more than they can make nutritional requirements cease to exist by banning food.

In the present case, Glik is arguing that a non-surreptitious recording is legal. I don't know what the law actually is on that. I do know that on one occasion, a reporter put a microphone in front of me when I was involved in a protest on Boston Common and didn't seem to think my explicit permission was required as long as I didn't raise an objection.

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This is a silly semantic argument. Add a modifier if it displeases you. May I suggest "legal right?"

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Is a police arrest a "private conversation" or a "public meeting"?

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Feel free to tell me to read up some more but how does this:

"Twelve states forbid the recording of private conversations without the consent of all parties"

mean you can't record audio in a public space. How is anything the police did on the Common that day a "private conversation"? I don't see how they have that expectation.

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As someone who has studied criminal justice in the past I don't see why this is illegal. When your in a public place, which the commons definitely fits, you have no reasonable expectation of privacy.

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Because you have no reasonable expectation of privacy in a public space, can the cops strip-search you on the common in plain view? Can the MBTA install a Whole Body Imager that beams black and white naked pictures of you to a monitor?

I think the answer is no. And that is because you do have a reasonable expectation of privacy in public spaces. It's not the same privacy you might have in your home, perhaps, but privacy nonetheless.

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These aren't the same things. If I voluntarily start talking in a public place there is no reason to think that my words will remain private. People are around me and are under no obligation to cover their ears. However if I wear clothes I can expect that my body, the thing that the clothes are covering, will remain private. Someone stripping me against my will is certainly a violation of my expectation of privacy.

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Because we have just installed a Whole Body Imager there (three different ones, actually), which will, essentially, take black and white pictures of you without your clothes. So, no, you no longer have the expectation that your clothes will cover your body in a public place. Sorry.

Coming soon to an airport near you.

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...Doing more to encourage long car trips than "Route 66" and a hundred road-trip movies combined.

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Because you have no reasonable expectation of privacy in a public space, can the cops strip-search you on the common in plain view?

No, because that would be unreasonable *search*, which is irrelevant. Stop setting up straw-man arguments, or spend some time actually reading the Fourth Amendment.

And yes, if you're in a public space and they arrest you, that has been commonly interpreted to be sufficient justification to search your person and items within your control (for example, your cell phone in your pocket.)

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Do you know how many people hide drugs in their pants?

If you are a suspected of being a drug holder, you can expect to be strip-searched. However, because of privacy concerns, you can expect to be strip-searched by a same-sex cop in a private room.

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Search incident to an arrest is for the safety of the officer. The search is for weapons (body,handbag, etc). The cell phone may feel like something else during the pat down. But once it is identified as a cell phone, searching the contents of the phone itself, I believe would require a search warrant based on probable cause.

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Although you may think your hypothetical so clearly borders on the absurd as to make your point, think again. Your hypothetical isn't too far from those debated in criminal procedure classes in law school because they are, in fact, not settled depending on how one reads the law. This is why Supreme Court is such an important institution in our country - it often ultimately decides these grey areas. Sadly, if you ask me, the newly composed court has made things a bit more black and white by further erroding the "right" to privacy.

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I just think it's pretty well settled. But tell that to the fellow above you and the fellow below you, because it appears they thing the hypothetical is so very, very absurd that it's a "straw man" argument.

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You have a right to retain your clothes and a reasonable expectation of privacy in regard to your own person. However, the reasonable expectation of privacy applies to things which are readily apparent. For example if you're smoking a joint in public you have no expectation of privacy.

Your previous example seems rather silly. The passage(s) you cited refered to people surreptitiously recording things where someone DID have an expectation of privacy, such as illegally wiretapping someones phone or placing a bug in their home. Someone conducting actions, legal or illegal in a public space has no right to expect that these actions are private. This would seem to especially apply to police officers in performance of their duties. Lets take the recording device out of this because that's just an add on. It's certainly no illegal to visually OBSERVE the police conducting their duties. If it's not illegal to observe then it cannot be illegal to record.

In addition, the lawyer would seem to have a very good defense given that any such law, if it existed, would be clearly contrary to both the federal and state constitution:

Article XVI. The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged.

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The fact is that the fellow was arrested, and that several other people have been arrested in very much the same situation in the past.

I agree with you that I would like the court to rule in his favor. I would like that law cleared up in his favor. However, it is not currently certain that will happen.

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Original author of the "photographer's rights" comment here. As others have pointed out, you're completely wrong about recording in public spaces. Your citations are irrelevant because you ignored a key phrase: "expectation of privacy".

Even if it was on private property, police on duty and acting in an official capacity have no expectation of privacy.

You're right in that there is some misdirection here- a bigger issue is at hand. Namely, the cops lied about the lawyer's actions and filed false charges. It'll be interesting to see how far they chose to take their lies, because they're going to be arguing against a video, where presumably the position of the operator and camera relative to the officers will be plainly visible.

See http://seattlepi.nwsource.com/local/338880_aclu09.... for how Seattle handled a similar incident (similar in that cops didn't like an arrest being documented, not in how; this case was still photography, not video with audio.)

Something tells me that you'd never, ever see someone from the Boston Police say something like this:

The officers, James Pitts and David Toner, were disciplined with written reprimands for violating the department's policy on professionalism and the exercise of discretion, said Sgt. Deanna Nollette, a department spokeswoman.

Officers are trained to know that the public is entitled to observe and document their actions, she said.

"Not only do we train them on that, we tell them to expect that's going to be occurring," she said.

At least he didn't get beat up like that journalism student out in Provincetown a year or two ago; the kid was taking photos of officers arresting/beating people during a riot.

Want to see just how pervasive police intimidation of photographers is? Here's a small sampling.

http://www.google.com/search?q=site%3Aphoto.net+po...

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Let me get this straight... The cops stopped chasing a drug suspect to pursue someone much more dangerous - some random guy with a cell phone camera.

... and the guy they arrested turns out to be a lawyer?

I sense the basis for a Law & Order episode (once the writers strike ends)

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This seems an extension of a common problem. I saw a talk once about declassifying documents and one of the speakers said that Great Britain still had classified documents relating to the Normandy invasions. Presumably there are no vital national secrets that they need to protect from 60 years ago but the tendency for a spy agency is to want to keep things secret as long as they can, even when there's no logical reason for things to remain secret. Similarly police officers sometimes over react to challenges to their authority. They have extraordinary authority over others and their job depends on their being to exercise their authority (most of a cops power comes from their authority and not from the violence which they are allowed to inflict on others). When that authority is challenged, even in a relatively minor way, they can react negatively. I wouldn't be surprised if the cops in this case told the lawyer to stop taping them and he refused. Since police are used to people obeying their commands, they probably reacted negatively, especially since they were likely already somewhat on edge because they were involved in an arrest (which can always turn dangerous for them).

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