In at least three states, courts have addressed legal issues regarding people's rights to record the actions of police in public spaces. None, however, explicitly addressed the issue of making a visual record of the police, whether by still photography or video recording. All involved wiretap-related statutes making it a crime to record conversations, at least in some circumstances, unless both or all parties consented; the consent of one person (usually the person making the recording) was not enough.
1. Maryland - On September 27, 2010, Maryland Circuit Court Judge Emory A. Pitt, Jr., dismissed charges against Anthony Graber, the motorcyclist who was arrested and had his home raided by the Maryland State Police after he posted a video on YouTube showing a plain-clothes State Trooper draw his weapon on Graber after pulling Graber over for a traffic stop. In a conscientiously researched and analyzed opinion, Judge Pitt held that the Maryland statute did not apply to this situation because the trooper could have had no reasonable expectation that his words with Graber were private. In the analysis of the statute, the opinion considered the kinds of values that the First Amendment protects, but given his reading of the statute, Judge Pitt did not need to reach any constitutional issues.
2. Illinois - The Illinois ACLU sued in federal court in a case captioned American Civil Liberties Union of Illinois v. Alvarez to obtain an injunction against enforcement of the Illinois Eavesdropping Act. The history of the act is interesting. After the Illinois courts had held that it did not apply to a police-citizen encounter during traffic stops -- on grounds similar to those in Judge Pitt's Graber opinion -- the Illinois legislature amended the act for the specific purpose of reversing that decision, making the statute apply even when no party to a conversation had a reasonable expectation of privacy. There is no doubt that an aim of the amendment was to shield police from being recorded by others during encounters with civilians, including but not limited to traffic stops. To underscore the point, the legislature enacted an enhanced penalty -- of a sentence of four to fifteen years -- that applied only when the defendant had recorded the police.
The ACLU sued on First Amendment grounds, asserting that the statute inhibited it from monitoring and documenting police conduct by audio-visual recording during public demonstrations and the like. The district court dismissed the ACLU's complaint on what were formally standing grounds, but the court found that the ACLU lacked standing because it failed to allege a threat of constitutional injury. In other words, the ultimate basis for dismissal was the district court's conclusion that the statute did not violate the First Amendment. It is possibly significant that the court pointed out that the ACLU asserted a right to record conversation that, though taking place in public, involve only other persons and not the person making the recording. So in at least some instances, the ACLU asserted the right to record publicly held conversations without the consent of any of the participants. The ACLU has appealed to the Seventh Circuit. It filed its brief on April 15, 2011.
3. Massachusetts - Contrary to the Maryland decision, the Supreme Judicial Court of Massachusetts has held that a comparable statute there could support a valid prosecution of a motorist for recording his encounter with the police during a stop, in its 2001 decision in Commonwealth v. Hyde, but the case does not deal directly with constitutional issues. There is a dissent, and it would read the statute more narrowly in view of the public interest in exposing and documenting official misconduct.
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