March 15th OC Activities: Tri-Met: Some succes, lots of failure - Arrested

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Original post below:

We'll be sparse on the details for the moment, since there is legal action pending. More will come out over time.

Myself and Phssthpok were arrested on the Max today, at the 82nd Ave stop. Not for any kind of a firearms violation (we had that well covered), but for allegedly recording the conversation we had with the officers. We were criminially cited under Oregon's "wiretapping" law, ORS 165.543.

Yes, we are aware how weird this seems. We are aware it doesn't seem applicable. It's probably not. There is another statue that is likely applicable, and I'm not sure if the DA will be able to change the charges between now and then, so for now, finding it is left as an exercise to the reader.

We spent more than six hours getting "booked" in the Multnomah County jail downtown, after which we were released with no transportation to our vehicles which were still at the Expo center. We ended up splitting a cab.

Our firearms are in the custody of the police for the moment, though (thankfully) they didn't book them as "evidence," but a special kind of personal property. Looks like there's even a shot at getting my ammo back, but it's not worth it to me to press for that.

We were also excluded from the Max for 60 days -- again, not for a violation of their "firearms" policy (we pretty much conviced the security guy it was invalid under Oregon law), but for the "criminal" behavior of allegedly recording our conversation with the otherwise quite professional and understanding security/police officers.

Right now, we could use any kind of support anyone can offer. Phssthpok doesn't care so much, but I personally want to see the exclusion lifted. I have 9 days to file an appeal, and will need help perparing it.

Unfortuantely, the exclusion is the least of my worries, given the pending criminal charges. I (and I'm sure Phssthpok as well) am seeking a good criminal defense attorney that charges a resonable rate (I know, I know), preferably someone who understands the issue at hand well (not necessarily a "firearms" guy... someone who works with the media might do). I'll be looking at my Prepaid Legal plan to see what they have to offer at a 20% member discount, but I'm not expecting much.

I would also like to contact OFF to see if they have any attorney recommendations, or are willing to help. It was pretty clear from the situation that the guns were the problem for security/police, but since we had our bases covered, they had to grasp at straws and find something else.

Neither of us have much money. I'm thinking of setting up some kind of a legal defense fund, but have no idea how to start or go about it legally. I'll provide some more info on this if it materializes.

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Our trip wasn't all bad. We went from Expo to downtown, had lunch, from downtown to Gresham, and were on our way back to Expo from Gresham, when the unfortunate incident happened. We spoke with a *ton* of people who had no idea it was legal for the to carry a firearm, much less openly and definately *not* on the Max. We explained the law to them, as well as many of it's quirks regarding CHLs and preemtpion. We easily educated at least 30 people through 6 or 7 converstations, and the last group we saw was a bit upset at the security guys for pulling us off the train due to our firearms, and totally supportive. Not a single one expressed any "alarm" -- they were all cool with it and wanted to know how to do it themselves. With a few other people making the effort, we'll have a max train full of gun-totin' riders before you can blink an eye!


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Some personal comments from me: I'm hoping to at least beat the ridiculous criminal charge, if not the tri-met exclusion as well. Loosing will probably mean the end of open carry for me, at least for a while. It's just not worth the possibility of being deprived of my freedom again. If they win the next battle, they get the war.

I've not yet been convicted, only accused, and even if the unfortunate happens, of a BS law (pretty much everyone with internet access and youtube knows that good things -- not bad things -- come out of taping police officers at work). Still, part of me feels like, with an arrest on my record, I'm now somehow "tainted." I feel like I'm already a criminal, and I feel like the important thing now is to get back to normality (read: sheepishness) rather than risk the consequences of continuing the fight for firearms freedom in this great state. While we technically haven't been accused of a firearm crime, there's no question that it was the officer's reaction to the firearms that caused all this mess. Covering it up and I'd have been home hours ago, not looking to face criminal charges.

Still, there is a part of me that wants to fight harder than ever now. It sounds counter-intuitive, but I don't think you can truly understand freedom until you've been deprived of it, even in such a small way as I have been. And it seems more important now than it ever has been to continue fighting for. I imagine that, over time, I'll develop some more clarity about my feelings and thoughts about this experience. In the meantime, I'm tired, still in a fog, and still reeling from the whole experience. I need some food and some sleep.

I do hope this doesn't discourage anyone else. If anything, it's time for an OC rally on the Max. The security guard told us that he "didn't want to fill up his train with a bunch of people with guns."

Let's freakin' fill it up.

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So the hypothetical conviction will rise to the level of disbarring your Second Amendment Right, a 'felony' or is the bar set lower in Oregon?

Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. NRA KMA$$

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The ORS 165.543 charge sounds like B.S. to me.

165.543 Interception of communications. (1) Except as provided in ORS 133.724 or as provided in ORS 165.540 (2)(a), any person who willfully intercepts, attempts to intercept or procures any other person to intercept or attempt to intercept any wire or oral communication where such person is not a party to the communication and where none of the parties to the communication has given prior consent to the interception, is guilty of a Class A misdemeanor.
(2) As used in this section, the terms “intercept” and “wire or oral communication” have the meanings provided under ORS 133.721. [1983 c.824 §3]

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Italics mine. This statute pertains to listening in other people's conversations, not recording one in which you're taking part.

I've found the statute that might stick, but note that it contains a bunch of exceptions, one or more of which might be applicable in your situation. But IANAL.

Regarding assistance, have you considered the ACLU? I know, they're not brilliant where gun rights are concerned, but since the cops are resorting to charging you for recording your public conversation with them, this has wider ramifications. I think the ACLU will disagree with the notion that the cops have the right to bust you because they don't like you recording their interaction with you.
You can request assistance from the ACLU of Oregon here.

Good luck.

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It says "intercept" which is not exclusive of recording nor exclusively "listening."

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I am sorry to hear about the unfortunate out come of your attempt to conduct the legal act of open caring in public. Having spoken with you earlier in the day, then I was surprised to hear you'd been kicked off the light rail train (#A 113, I believe you said) after being told you were violating Tri Met policy; implying you could only have a firearm, if it was in a case while on the train.

That information is incorrect. Without question ORS 166.170 state clearly only the Oregon legislature has the ability to regulate firearms policies.

Not the rent a cop who made the fuss, nor the Tri Met Official who told you what "their policy was".

Herewe have tri Met officials, who first misinform you of Oregon laws, whotoss you from the train based on theirs illegal policies, then attempt to prevent you from knowing who they are; by covering their identification badge, only identifying herself as # A 113.

With out question your civil and constitutionalrights are being infringed upon.

Based on the events you encountered thus far, it seems having a recording device would be prudent to untangle the web of disinformation being spun at your feet. Consideringyou havebeen "informedof your rights" by officials who eitherdon't know or don't care what the real laws are should, in my opinion; be exposedfor being incorrect.

I have to ask,how did the officer become aware of the fact you had a tape recorder and that you were using it during the interrogation? You can take pictures of people in public with out theirs consent; as they are in the public arena. This also applies to video and digital recording. The greatest distinction may be, in order to use these devices others have the ability (unless blind) to know you are documenting them. I imagine a gray area exists when a recording device is hidden the perhaps consent might be a required action, as this apples when you are recording a phone conversation.

However, what if you "sound"recorded children playing in a park? A crowded street, a bus stop, a protest; would you be breaking the law, collecting those sounds?


If it was in your pocket and they found it after searching you, what was the probable cause for the search?


Oh right.... The guns.At it's core that'swhy the police zeroed in on you. It's called "chilling" and they do it one person at a time.

Tri Met added 5 westside transit cops recently, crime control is the driving force and they are looking at everything and everyone. Problems on the train have gotten out of hand and it's Tri Mets fault for nor filling funded positions years ago. Security system wide is on red alert so they can say this "surge" is a success. Even if it means making up policies and using strong arm tactics. As with most LEO encounters, they are trained to look for anything they can to site you for.


Don't give up the "cause". It's a minor law they say you violated. It can be honestly argued your intent was noble if not necessary to establish a factual background in a situation dominated by misinformation pertaining to ORS 166.170.

There will be less "law breaking" when people actually know what the laws are.

You got a battle scar, it's small and will heal. It's nornal to be confused at first, later you'll be pissed and jump back in the fight, wiser from your lesson, and caring a video camera.

You talk to the DA and my guess is it will get thrown out.

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Euromutt wrote:

The ORS 165.543 charge sounds like B.S. to me.

165.543 Interception of communications. (1) Except as provided in ORS 133.724 or as provided in ORS 165.540 (2)(a), any person who willfully intercepts, attempts to intercept or procures any other person to intercept or attempt to intercept any wire or oral communication where such person is not a party to the communication and where none of the parties to the communication has given prior consent to the interception, is guilty of a Class A misdemeanor.
(2) As used in this section, the terms “intercept” and “wire or oral communication” have the meanings provided under ORS 133.721. [1983 c.824 §3]

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Italics mine. This statute pertains to listening in other people's conversations, not recording one in which you're taking part.

I've found the statute that might stick, but note that it contains a bunch of exceptions, one or more of which might be applicable in your situation. But IANAL.

Regarding assistance, have you considered the ACLU? I know, they're not brilliant where gun rights are concerned, but since the cops are resorting to charging you for recording your public conversation with them, this has wider ramifications. I think the ACLU will disagree with the notion that the cops have the right to bust you because they don't like you recording their interaction with you.
You can request assistance from the ACLU of Oregon here.

Good luck.

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I'm definitely not a lawyer, so take what I say with a grain of salt.

1. Expectation of privacy. Such laws exist mainly where there is an expectation of privacy, there is NO expectation of privacy in a public place.

2.Implied Consent.If the recorders were VISIBLE, then implied consent takes over, IOTW, they continue to talk KNOWING that they're being recorded is implying consent to be recorded.

3.Applicability. From what I'm reading, it's saying that you can't record a conversation that you're not a part of..

where such person is not a party to the communication and where none of the parties to the communication has given prior consent to the interception.

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Meaning, YOU were aware that recording was taking place, and you WERE a party to the communication.

So, unless you just hid the recorder to record their conversations while you walked away, it seems like the statute is not applicable.

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where none of the parties to the communication has given prior consent to the interception,

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So am I correct in the assumption that both grishnav and phssthpok did not consent to their own recordings of the conversation in which they were parties?:banghead:

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Wow sounds like quite an event. I was sort of wishing I had been able to make the event, but with this situation I'm glad I wasn't involved. Even though the charges weren't "gun related" it sure would have shooken me up. Specially after getting my CHL in the same week.

I wish you the best with your efforts on this. Lonnie may be able to offer some good insight as well. Additionally, I think more information on the "recording device" would be helpful. There's lots of types of devices available; pocket records, watches, "pens" and so on.

I also don't quite see how they were able to keep your firearms since the charges aren't "gun related". You mentioned that they are being kept as a special kind of personal property. Did they keep your CHL as well? I sure hope you get everything back.

Good Luck!

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Grishnav, I would understand completely if you stop open-carrying. I haven't
worked up my own courage to do so, so I would be the last to call you "sheepish"
for cooling it now.

Thanks to both of you for your efforts.

gridboy

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Ok, someone just brought this thread to my attention. Both of you are getting PM's with my email address. I want you both to scan a copy of both the citation and the exclusion from TriMet and send it to me in the email address. I will be emailing my previous contacts on that subject. I also need both of you post specifics of WHO gave you the exclusions and citations. I need to know specifically which AGENCY issued the citation. Both of you need to fight it, as we can't afford allowing this to be a precedent. If there's anything I'm as strong as open carry on, it's recording laws and the abuses cops and security guards do when they realize they're being recorded.

Oregon is a one party state to intercepted oral communication.

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gridboy wrote:

Grishnav, I would understand completely if you stop open-carrying. I haven't
worked up my own courage to do so, so I would be the last to call you "sheepish"
for cooling it now.

Thanks to both of you for your efforts.

gridboy

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Arrrgh, don't allow the "chill" to put you off.They didnothing wrong regarding firearm possession or transportation. They got hassled by Tri Met (a public agency) and that in my opinion is whereall of the blame lays. I think Tri Met owes them a public apology.

They should have their guns returned yesterday and Tri Met issue lifetime passesto them, and their families; to make amends for their absolute error.

These guyscould well be considereduber-citizens who have passed an extensive back ground check as well as identification measures well beyond the average joe simply to exercisethere rights. They have never done anything in the past to impeach their rights to gun ownership; or they wouldn't hold CHL permits.

Tri Met put them off the train and the police were called aboutmen with guns. I support the police and the difficulty of their job. They need to resolve issues quickly and eliminate the "threat" to the public peace. They needed charge them with something,put them in cuffs and restore order to the scene. It is aweak interpretation ofa "wire tapping"

Next time we ride Max we need to wear buttons saying... "You are being recorded" so everyone is giving their consent by default.

Like CCTV.

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What cause did they give for keeping your guns? That sounds like BS to me considering you're being charged with a misdeameaner that has nothing to do with firearms.

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Not a lawyer but i have looked into the recording of another individual when i was making a civil lawsuit against a guy who sold me a lemon.

Basically, federal law states that only ONE party of a converstation needs to give their consent to being recorded. Since you are one party of the converstation all you have to do is give consent to yourself that you allow yourself to be recorded and thus the recording is legal. The law is set up to protect a third party from infiltrating your conversation and illegally spying on you.

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Doug Huffman wrote:

It says "intercept" which is not exclusive of recording nor exclusively "listening."

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That's why I emphasized the bit that said "where such a person is not a party to the communication"; the point being that Grishnav and Phssthpok can't "intercept" (for purposes of ORS 165.543) communications to which they are themselves a party.

But like Grishnav says, there is another statute which is possibly applicable (in that it prohibits recording conversations to which you are a part, under certain conditions), but we're trying not to identify that statute here in case the Multnomah County DA's office decides to rely on us to do their homework for them.

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Grishnav, I'm sorry this happened to you guys. You have my support. I would like to direct you to this case, whichdoes set precedent, unfortunately.

http://www.publications.ojd.state.or.us/A130433.htm

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Prophet wrote:

Not a lawyer but i have looked into the recording of another individual when i was making a civil lawsuit against a guy who sold me a lemon.

Basically, federal law states that only ONE party of a converstation needs to give their consent to being recorded. Since you are one party of the converstation all you have to do is give consent to yourself that you allow yourself to be recorded and thus the recording is legal. The law is set up to protect a third party from infiltrating your conversation and illegally spying on you.

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State law can be more restrictive, however. Remember the Linda Tripp wiretapping case during the Clinton administration's Lewinsky scandal; one of the parties in the phone conversation was in Maryland, which is a 2-party consent state. That was the law Tripp was accused of breaking.

From reading the above citation, it appears quite clear that Oregon is a 1-party consent state, as Lonnie has stated.

To the OP: due to the explosion of OCDO membership I haven't been keeping up on out-of-state stuff much, but it seems that the Northwest is becoming the OC capital of the West. Wish you the best of luck in sorting this out.

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I'll try to answer a few of the questions people have asked.

Our firearms apparently weren't allowed inside the jail, so they couldn't go to jail property. The Transit police kept them, and took them to their property room, which is conveniently open 9-5 mon-fri, unlike the jail's, which is 24hour and took everything else (from business cards to cash to my pocket knife and "burglary tool" lock pick, which I thankfully wasn't charge for possessing... it's just a weird hobby of mine and it's nice never to lock myself out of car or house ) and returned it to us at about 2am upon release.

The confusion came from the fact that the evidence was also taken to Transit's property room, and thus didn't appear on our jail property receipt. We were told we'd get receipts for our firearms with our evidence receipt for our recorders.

Then, conveniently, they use the same form for evidence as for personal property. There is just one little tiny check box of difference. The originally checked the "safekeeping" box, but then scratched it out and check "personal property" instead. At first 3am glance, it looked like the firearm was being held for "safekeeping," but it's now clear that that designation is some kind of voluntary thing (or possibly for disputed property).

"TPD" issued the exclusion, and two officers with either "TPD" or "TPO" issued the citation, and indicated the issuing department was "trimet." Interestingly, the citation is "State of Oregon v. Me" rather than "Tri-Met v. Me". Wonder if that's normal.

The citation is pretty unclear, and I'll have to get a better copy soon. I can't read the officer's names. The exclusion is very clear, and was issued by "OMAN", DPSST 45672 (or 45622, his handwriting is bad).

The alleged "Recording Device" was my Sansa clip MP3 player. It was attached to my shoulder epaulet in plain view.

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Explain how both was arrested if only one was doing the recording, maybe I missed that part somewhere but i'm just wondering?? Good luck with the case, hope it's all dropped in the end.

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grishnav wrote:

The alleged "Recording Device" was my Sansa clip MP3 player. It was attached to my shoulder epaulet in plain view.

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That's what I wanted to hear. In that case, you should be able to successfully fight this (if it even comes to a fight).

The statute we've been dancing around is ORS 165.540, which reads:

165.540 Obtaining contents of communications. (1) Except as otherwise provided in ORS 133.724 or 133.726 or subsections (2) to (7) of this section, a person may not:
[...]
(c) Obtain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained.

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The DA could try to argue that you were in violation of this statute if you didn't explicitly inform the police officers you were recording. However, further down we see:

(6) The prohibitions in subsection (1)(c) of this section do not apply to persons who intercept or attempt to intercept with an unconcealed recording device the oral communications that are part of any of the following proceedings:
(a) Public or semipublic meetings such as hearings before governmental or quasi-governmental bodies, trials, press conferences, public speeches, rallies and sporting or other events; [...] or
(c) Private meetings or conferences if all others involved knew or reasonably should have known that the recording was being made.

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Italics mine.
Strikes me that anything that occurs on public transit vehicles and at public transit facilities is, well, public. But even if stepping away from other people might make the conversation private (which seems a stretch, but hey), I think it can be reasonably argued that cops (who are, after all, supposed to be observant) should have noticed a recording device in plain view and taken into account that it might have been recording.

Again, IANAL, but in the event that this goes so far that you need to talk to a lawyer, you may want to discuss pursuing that line of argument.

But hopefully, as soon as this hits the desk of someone at the DA's office sometime in the coming working week, he'll take one look at it and deservedly file it in the round archive.

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I was supposed to join the meetup, but due to other personal commitments I couldn't make it. I was able to make it to the gunshow today though if it's any consequence.

That was the question that I also was going to ask. Were both of you carrying alleged recording devices? If not, why were both arrested?

Also curious, if they (the police)had no issues with the open carry/guns, what sparked the conversation at all? Were they checking for permits or what?



i'm just wondering?? Good luck with the case, hope it's all dropped in the end.[/quote]