BrendanLoy.com: Homepage | Photoblog | Weatherblog | Photos | Old blog archives

« Previous post | Next post »
Man faces felony charge for recording traffic stop
Posted by on Tuesday, June 12, 2007 at 10:39 am

Glenn Reynolds is right: this is totally outrageous. How can it be “wiretapping” to record a traffic stop from inside one’s own car? The police officer has no reasonable expectation of privacy when pulling you over on a public street.

What an absolutely ridiculous law. Supposedly, it “bars the intentional interception or recording of anyone’s oral conversation without their consent.” Umm, ever heard of overbreadth? What if I record two people having a loud “conversation” in a public place, which is easily overheard by anyone nearby? For example, a public shouting match between quarreling lovers? Is it “wiretapping” to capture a recording of that? No? Well, how about a police officer making a traffic stop on a public street? Yeah, that’s what I thought.

I do love how there’s an exception for the police taping citizens, but not for citizens taping the police. That doesn’t seem backwards at all! I mean, why should the police be subject to scrutiny anyway? It’s not like they ever do anything wrong! (Rodney King, anyone?)

Remind me, what country do we live in again?

Frankly, this kind of thing scares me much more than a lot of the political civil-liberties debates that people get all exercised about. The idea that someone could face a potential seven-year prison sentence for… making a video and audio recording of himself being pulled over in a traffic stop… in America… is beyond terrifying.

UPDATE: Roger Krueger, commenting on the linked news article, points to this guide to the Pennsylvania law in question:

18 Pa. Cons. Stat. §§ 5703, 5704: It is a felony to intercept any wire, oral or electronic communication without the consent of all participants. It also is a felony to disclose or use the contents of a communication when there is reason to know those contents were obtained through an illegal interception.

Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.

Krueger writes, “a DA who’d file charges in a case like this is reprehensible. All he’s doing wasting taxpayer money harassing Mr. Kelly by making him pay to defend a case the state hasn’t a prayer of winning. You know the drill–you can spend $20k winning the case, or you can plead out to something you didn’t do and pay a $500 fine.” Ah, legalized extortion.

P.S. Here’s one potentially helpful case for Mr. Kelly:

A police chief in his patrol car talking to dispatchers did not have a reasonable expectation of privacy and may be sued by a man arrested for filming him, a three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) has ruled. The full court declined to rehear the case last week.

On Jan. 28, 2000, Anthony Johnson filmed Byron Nelson, then-police chief of Sequim, Wash., as he talked with dispatchers from his patrol car. … After twice telling Johnson that it was illegal to record conversations without consent, Nelson and another officer physically struggled with Johnson, seized the camera and arrested him. Johnson spent three days in jail.

Johnson was charged with violating the Washington Privacy Act, which bars intercepting or recording a private conversation without the consent of all participants. The trial court dismissed the charges after finding that Nelson had no expectation of privacy because he parked his patrol car with the windows rolled down in a public place.

Johnson sued Nelson, the city, and others in U.S. District Court in Tacoma for violating his First Amendment rights and Fourth Amendment prohibitions against unreasonable search and seizure. The district court dismissed the suit, but the Court of Appeals reversed after Johnson appealed.

“It is undisputed that Johnson recorded Chief Nelson while he was on duty performing an official function in a public place,” Judge Kim M. Wardlaw wrote for the 2-1 majority. “Johnson did not violate the Privacy Act when he recorded this official, public activity.”

Hey, sometimes the Ninth Circuit is right. :)




31 Comments on “Man faces felony charge for recording traffic stop”

  1. Briandot Says:

    I believe Maryland has the same law. I’m so thrilled I could puke.

  2. Jim Says:

    All charges against the young man should be dropped along with a public apology from the police dept. and the district attorney’s office. At a minimum the police office and the assistant D.A. involved in this case should both receive official reprimands. If they can be shown to have a history of this kind of abusive behavior they should be suspended or fired.

  3. Aaron Lee Says:

    Glenn Reynolds is right.
    Even a stopped watch… [sorry, couldn’t resist ;)]

    Seriously though, he is right, and so are you. Just to add one thing, my impression is that while cases like this one are rare, it’s quite common for police to tell people that they have to stop recording in situations where in fact they have no authority to give such an order. You might remember the tasering incident at (I think) UCLA. If I remember correctly, one of the officers there actually threatened to taser one of the bystanders if he didn’t stop recording.

    Read Radley Balko if you want to be upset by police outrages on a regular basis.

  4. dcl Says:

    So this means that I can object on the grounds of an illegal wire tap to the tape recorder in the police officer’s car right? And that that police officer should then be charged with a felony?

  5. marty west Says:

    and the cop who got a bj from the porn star only gets a slap on the wrist….

    f tha police.

  6. Joe Loy Says:

    Hey, you’re starting to Lean Left again, there, old Pinkoe :) Yes it’s Listing to Larboard ye are, Arrrr :> Wuttsa madduh fuh yoo, don’tchya Support yer Local PO-leece? ;> Surely you must understand that Everything Changed after Nine-One-One. :|

  7. Joe Loy Says:

    marty west, what, was that Paris Hilton’s latest, um, Maneuver? And here I thought she’d had a jailhouse Epiphany. Dear me. :)

  8. Brendan Loy Says:

    it’s quite common for police to tell people that they have to stop recording in situations where in fact they have no authority to give such an order

    Indeed. I can think of at least three occasions offhand where it’s happened to me.

  9. Sandy Underpants Says:

    After Rodney King, I’d tell people to stop recording as well, even if I had no authority.

  10. marty west Says:

    man the paris hilton thing is the best story ever…the picture of that trashy whore crying in the back of the police car is priceless

  11. dcl Says:

    Is it just me or should the DA be personally liable for wrongful prosecutions. In other-words, A defendant in his trial could plead not guilty and also request a secondary judgment on weather charges should have been brought at all. If at any time the Judge kicks the case for something that is not a technicality–dismissed with prejudice perhaps being the measure–or if it goes to jury if the jury finds the defendant not guilty the jury would then be permitted to enter a judgment on weather the case had merit to be brought in the first place (a a defendant’s request). If the DA is found guilty of bringing a stupid case he owes the court all court costs and the defendant all legal costs–personally.

  12. Sean Says:

    Nail’s head? Meet Brendan’s hammer. Brendan’s hammer, nail’s head.

  13. Joel Rosenberg Says:

    If I can suggest something practical, if a bit of trouble for the (very real) problem that Aaron Lee points to: a covert, or second, digital tape recorder. And a poker face.

    In my state, it’s perfectly lawful to record a conversation that you are a party to, and it’s not necessary to inform the other party that the conversation is being recorded. In one case I’m familiar with (not directly; I wasn’t involved), the existence of voluminous recordings were quite successful in correcting a perhaps not utterly corrupt public official’s memory of what he had, in fact, said.

    And, yeah: nail, head, bingo.

  14. DensityDuck Says:

    So, let me get this straight. It’s bad for me to record you, because that’s a violation of your privacy rights — but it’s okay for me to record you if you work for the government, because it’s my duty as a citizen to document the government’s activities — as long as those activities aren’t related to any kind of international intelligence or armed-forces work, because OPSEC must be maintained. Have I got the right interpretation of the doublethink?

  15. Playing dumb, are we? Says:

    Yes, that’s it exactly. The extreme power differential between government and citizens explains why spying by the people upon the government is admirable but spying by the government upon the people is contemptible. So our Founding Fathers felt, and I think they were right.

    Most Americans these days are all too happy to be a good government sheep.

  16. thebeef Says:

    DCL, you are very, very wrong.

    While I agree that this case is absolutely AWFUL, in that any right-thinking prosecutor should know not to seek an indictment (if that’s PA’s process)when, based on current case-law, one has a very diminished expectation of privacy in an automobile—it would set an absolutely HORRID precedent to seek damages from a prosecutor who charges someone for committing a crime, as it would arguably put a chilling effect on prosecutors from bringing close-call cases to trial, for fear of losing the trial and getting their asses hauled to court as civil defendants.

    Which, is why, I’m very happy to say: prosecutors are privileged from malicious prosecution suits.

    Again, I think this is an absolutely ridiculous charge…but other than the 9th Circuit case that Brendan cites (which, by the way, is not controlling on a PA State Court), I don’t know if there’s any precedent regarding the privacy expectations of an individual having a conversation on a public road near or in an automobile.

    What a horrible precedent it would be if an American citizen could not make an audio recording of a traffic stop while the government not only can make an audio recording, but a visual recording as well. Absolutely disgusting.

  17. marty west Says:

    here is a local cop who was trying to bang 13 year old girls…

    http://abclocal.go.com/wpvi/story?section=local&id=5388710

    thin blue line

  18. dcl Says:

    Beef… I think you are half right. I’m a big fan of the looser pays concept in civil litigation–it opens the courts to plaintiffs that have a seriously legitimate claim and no money and it keeps people with lots of money and a frivolous claim from being stupid. So in an effort to stem frivolous, and stupid, prosecutions, that miss apply the spirt of the law I have no problem with the prosecutor being held liable for his actions. Likewise, a malicious prosecution in which an innocent person is railroaded into court and forced to spend a fortune to defend himself against the justice system run amuck should have recourse against those responsible–a prosecutor should take responsibility for their actions and if their actions are dumb, they should pay for it. There is of course a limit to such things–but they shouldn’t get off scott free for being stupid ass holes.

  19. dcl Says:

    dcl,
    What I think is that DAs who prosecute cases that they shouldn’t ought to be removed from their positions. I think that the profession should become much more accustomed to enforcing the standards of conduct that are already in place.
    And, to whoever posted in a fit of angst above, here’s what I think ought to be able to happen: people, public officials and private citizens, should be able to tape other people so long as they are in a situation where noone has any expectation of privacy. I fully support cop cars having cameras in them: those have been used in trials against people behaving badly on both sides of the badge. People on the street filming a protest? Fine. Third party filming actions of police? Fine as well, though I imagine also available for subpeona, if needed. People revealing classified information? Not cool at all.
    I even think that most people agree with those principles. Which is why you’ll get traction from both Free-Speech liberals and Limited Government conservatives when you denounce this.
    Can I just say “ick” in general over this one? Thanks.

  20. Hector Owen Says:

    This sounds a lot like the Michael Hyde case from 1998-2001, which made it all the way to the Mass. Supreme Judicial Court, which found for the police. Jeff Jacoby article: (http://www.capmag.com/article.asp?ID=1179) Privacy for Government, But Not For Private Citizens. And from a (http://www.freedomforum.org/templates/document.asp?documentID=14446) Freedom Forum article:
    “We conclude that the Legislature intended (the law) strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge,” Justice John M. Greaney wrote in the majority opinion.

    Preview says links are not working, so this odd format rather than garble everything.

  21. Dr. Ellen Says:

    Prosecutors should be vulnerable in extreme cases. One word: Nifong.

  22. Malvolio Says:

    In my state, it’s perfectly lawful to record a conversation that you are a party to, and it’s not necessary to inform the other party that the conversation is being recorded.”

    Different states are different. Pennsylvania, where this particular outrage occurred, is a two-party-consent state — every involved in the conversation has to consent to its recording.

    Supposedly, this rule protects privacy, but I think that’s bull. If you are talking to me, I already know what you said; all the recording does is allow me to prove it. The two-party-consent rule makes it possible for liars to deny what they actually said, confident that they cannot be caught out.

    My reading of the case is that it will turn on whether Kelly, the defendant, was attempting to surreptitiously tape the policeman. Given that the policeman just saw the camera and did not discover the taping later or through some accident, my money’s on an early dismissal.

  23. Tully Says:

    Quis custodiet ipsos custodes?

    Apparently Cumberland County law enforcement believes that on-duty law enforcement officers have some “reasonable expectation of privacy” when making traffic stops on public streets…More from Brendan Loy.

  24. Mary in LA Says:

    So, where can we contribute to the young man’s legal defense fund?

  25. Spoodi Says:

    Malvolio said “Pennsylvania, where this particular outrage occurred, is a two-party-consent state — every (person) involved in the conversation has to consent to its recording.” This is for conversations by phone, not for face to face conversations. The law states that for INTERCEPTED conversations all parties must be aware of the recording. Secretly recording a face to face conversation is legal as one of the participants is aware and there is no interception of conversation. These laws started as anti-wire tapping measures, not as a barrier to recording in person conversation.

  26. tra Says:

    So let me get this straight: the guy who filmed the Rodney King incident would have gone to prison if it had happened in Maryland or Pennsylvania?

  27. Bob Daniels Says:

    Here is a site for the:
    United States Telephone Recording Laws
    http://www.callcorder.com/phone-recording-law-america.htm

    This is one of those times that people like myself who have been talking for decades about the New World Order and all the nefarious agendas of the secret groups hate to be right and say “I told you so.” But we have been all along and we have taken shit from everyone being called “conspiracy theorists,” wackos, etc.

    This is only the tip of the ice berg. Under the guise of the Patriot Act and the “terrorist” threat we are loosing our autonomy and freedom on every level possible. Later this year it will be the free access to the Internet.

    Work for peace friends, we ARE the people, this is OUR country and we have to take it back.

  28. Alasdair Says:

    Bob Daniels - and what will cause us to lose the “free access to the Internet” ?

  29. Bob Daniels Says:

    Alasdair Says:
    June 18th, 2007 at 6:57:10 pm
    Bob Daniels - and what will cause us to lose the “free access to the Internet” ?

    The fight is about “net neutrality.”

    “The nation’s largest telephone and cable companies — including AT&T, Verizon, Comcast and Time Warner — want to be Internet gatekeepers, deciding which Web sites go fast or slow and which won’t load at all.”

    http://www.savetheinternet.com/=faq#who

  30. Bob Daniels Says:

    It is never my intention to preach or look for converts when talking about the NWO. Each of us has to decide on their own, however one can’t decide if all the options or info isn’t presented.

    The take-over of the press happened decades ago. As each small, local paper was bought up it lost it’s autonomy and connection to it’s region. They became rip and read from the AP/UPI/Reuters services.

    In the logging area of the Pacific/NW for instance…no longer were reporters probing around and discovering clear-cut lumber practices, etc. Instead pop culture trivialities were being cut and pasted into the papers from the rip and read sources.

    By bringing this information to this thread I am only attempting show the inner-connectedness of all the agendas that are unfolding…much like a triage nurse looks at a patient and gives a bigger picture to the doctor. We are in the fight of our life and few know about it because the main stream media controls what is valid “news” and what isn’t for the people who still watch that stuff.

    If they get control of the Internet, we are up s**t creek. Look what it did for the 9/11 truth movement and Ron Paul’s quest for the presidential nomination.

  31. Fred Says:

    The other part of this that ticks me off is that if this had been a News cameraman recording you can bet that there wouldn’t be any charges being pressed and or if they were that there would be very loud howls of outrage from every media corner.


This is an archived post. Comments are closed.

To leave a comment on a newer post, please visit the homepage.


[powered by WordPress.]