[Balko] Cops Don’t Check Civil Rights at State House Door

by Radley Balko
August 9, 2010

The debate over whether citizens should be permitted to record on-duty police officers intensified this summer. High-profile incidents in Maryland, Illinois, Florida, Ohio, and elsewhere spurred coverage of the issue from national media outlets ranging from the Associated Press to Time to NPR. Outside the law enforcement community, a consensus seems to be emerging that it's bad policy to arrest people who photograph or record police officers on the job.The Washington Post, USA Today, the Washington Examiner, The Washington Times, and Instapundit's Glenn Reynolds, writing in Popular Mechanics, all weighed in on the side that citizen photography and videography can be an important check to keep police officers accountable and transparent.

But so far, there's been little activity in state Legislatures to prevent these arrests. That's likely because any policy that makes recording cops an explicitly legal endeavor is likely to encounter strong opposition from law enforcement organizations. So what's the justification for bringing and supporting charges against people who record or photograph cops? I recently spoke to three law enforcement officials about it. Two are prosecutors currently pursuing felony charges against citizens who made audio recordings of on-duty cops. The third is the executive director of the Fraternal Order of Police, America's largest police union.
Joseph Cassilly is the attorney of Harford County, Md. He's currently pursuing felony charges against Anthony Graber, who police arrested last April for recording an officer during a traffic stop. Maryland is one of 12 states that require all parties in a conversation to give consent before the conversation can legally be recorded. But like nine of those 12 states, Maryland also requires that for the recording to be illegal, the offended party must have had an expectation that the conversation would be private. To bring charges against Graber, Cassilly would not only need to believe that on-duty police officers have privacy rights, but in the Graber case in particular, that a cop who had drawn his gun and was yelling at a motorist on the side of a busy highway would, also, have good reason to believe the entire encounter was private. This seems all the more absurd given that motorists in such a situation clearly don't have any reasonable privacy expectation. Anything they say during such a traffic stop is admissible in court.

"The officer having his gun drawn or being on a public roadway has nothing to do with it," Cassilly says. "Neither does the fact that what Mr. Graber said during the stop could be used in court. That's not the test. The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear."

[Last February, riot police beat University of Maryland student Jack McKenna after a basketball game. Cell phone videos of the beating contradicted police reports, and resulted in the charges against McKenna being dropped and in the suspension of several police officers. Would Cassilly have charged those cell phone videographers with felonies if their recordings picked up audio? After all, it's the audio portion of a video that triggers state wiretapping laws.

"In College Park you had lots of people around, you had people screaming and shouting. The officers in that case had no reason to think the situation was private," he says.

Cassilly's interpretation of the law is awfully vague. How is your average Marylander supposed to know if taking video of what he thinks may be police abuse is protected speech or if it's a felony punishable by possible prison time?

"I don't have any hard and fast rule I can give you," Cassilly says. "It depends on the circumstances, and if the officer in those circumstances had good reason to think he wouldn't be recorded. Should a domestic violence victim have a camera shoved in her face and have her privacy violated because someone is following a police officer around with a camera? What if he's collecting information from witnesses at a crime scene? I'm saying that not everything a police officer does on the job should be for public consumption."

Generally, Casilly says, police actions in front of large crowds of people can probably be recorded. But citizen recorders put themselves in legal jeopardy when there are fewer people around, and an officer is more likely to think his conversations are private. But this seems to negate the use of citizen recording when it would be most important as a tool to hold misbehaving police officers accountable. Misconduct in front of large groups of people is obviously more likely to produce lots of witnesses to challenge the police narrative of the event.

What if a police officer is harassing or intimidating someone in close range, such as during a traffic stop, or on an unpopulated street at night? Would it be a felony to record those interactions? What if the recording captures unquestionable lawbreaking on the part of the officer, such as a threat or a shakedown? "I'm not going to respond to any hypothetical scenarios," Cassilly says. "It just depends on the circumstances."

Last month, the office of Maryland Attorney General Doug Gansler issued an advisory opinion that would seem to be at odds with Cassily's interpretation of state law. Gansler's office found that "it's unlikely that most interactions with police could be considered private, as some law enforcement agencies have interpreted the state's wiretapping act." But that opinion isn't legally binding, and may not affect Anthony Graber's case. In fact, when I spoke with Cassilly (before Gansler's opinion), I asked him about a 2000 Maryland Attorney General's opinion stating that motorists have no privacy expectations during a traffic stop. "Those opinions are just the attorney general paying some lawyers to tell him what he already thinks. I don't have to agree with it," Cassilly replied.

Unlike Maryland, the law in Illinois is much clearer. It is illegal to record anyone in public without his or her consent. The state has no stipulation about privacy expectations. It once did, but the state Legislature removed that provision in 1994. That amendment was actually a direct response to a state Supreme Court decision throwing out the conviction of a man who recorded two cops from the back of a police cruiser. In Illinois, felony eavesdropping is in the same class of crimes as sexual assault. It's punishable with 4 to 15 years in prison.

Crawford County State's Attorney Tom Wiseman is currently bringing five felony charges against Michael Allison, a 41-year-old construction worker who recorded police officers and other public officials he thought were harassing him. (I'm writing a feature about Allison's case for a forthcoming issue of Reason). Allison was fighting a zoning ordinance forbidding the storage of unregistered or inoperable vehicles on private property. Allison thought he was being unjustly targeted by local authorities and was planning a civil rights lawsuit, so he began recording his conversations with local law enforcement. He faces up to 75 years in prison for the recordings.

I first asked Wiseman if he thinks Michael Allison should spend the rest of his life in prison for making audio recordings of on-duty public officials. "My job isn't to write the laws. My job is just to enforce them," Wiseman says. Wiseman does have discretion over whom he charges. But he says Allison committed a felony, and that it wouldn't be proper for a prosecutor to overlook a felony. But Allison thought the police were harassing him. Given the deference law enforcement officials get from courts and prosecutors, how can a citizen who feels he's being harassed or treated unfairly by law enforcement protect himself?

"The only person doing any harassing here is Mr. Allison, who was harassing our public officials with his tape recorder," Wiseman says. "They may have problems with some bad police officers in some of your urban areas. But we don't have those problems around here. All of our cops around here are good cops. This is a small town. Everyone knows everyone. If we had a bad police officer here, we'd know about it, I'd know about it, and he'd be out. There's just no reason for anyone to feel they need to record police officers in Crawford County."

Finally, I spoke with Jim Pasco, executive director of the Fraternal Order of Police. Pasco, who supports these arrests, says he's worried that video could be manipulated to make police officers look bad. "There's no chain of custody with these videos," Pasco says. "How do you know the video hasn't been edited? How do we know what's in the video hasn't been taken out of context? With dashboard cameras or police security video, the evidence is in the hands of law enforcement the entire time, so it's admissible under the rules of evidence. That's not the case with these cell phone videos."

But what about cases where video clearly contradicts police reports, such as the McKenna case in College Park?

"You have 960,000 police officers in this country, and millions of contacts between those officers and citizens. I'll bet you can't name 10 incidents where a citizen video has shown a police officer to have lied on a police report," Pasco says. "Letting people record police officers is an extreme and intrusive response to a problem that's so rare it might as well not exist. It would be like saying we should do away with DNA evidence because there's a one in a billion chance that it could be wrong. At some point, we have to put some faith and trust in our authority figures."

Whether officials should permit citizens to submit video as evidence (and it would seem to be pretty easy to discern if a video has been altered) is a different question from whether police should arrest citizens and imprison them for recording cops. I mention Michael Allison's case to Pasco, and ask if he supports the Illinois law.

"I don't know anything about that case, but generally it sounds like a sensible law and a sensible punishment," Pasco says. "Police officers don't check their civil rights at the station house door."

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