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Thread: Man threatens law suit over unlawful police seizure of his video cam

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    http://www.oregonlive.com/portland/i...een_after.html

    What do you think will come of this?

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    rds801 wrote:
    http://www.oregonlive.com/portland/i...een_after.html

    What do you think will come of this?
    With any luck, they will go deeper than the simple reading of 165.540 and realize that 165.540 really is a lot more specific than it appears on the surface.

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    rds801 wrote:
    http://www.oregonlive.com/portland/i...een_after.html

    What do you think will come of this?
    Please lable your threads to describe the topic succinctly - I will adjust your this time.

    What should come of this is a full scale law suit for big bucks - this is a major violation of rights - a PA man won $40,000 jury award in PA for somthing similar a year or so ago.

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    Links can go away or are not accessible from some work or government networks.

    Man threatens suit over seizure of videocamera after he tapes Portland police rousting two men
    by Aimee Green, The Oregonian
    Tuesday September 16, 2008, 7:05 PM
    After Mike Tabor turned his videocamera on two Portland cops rousting a couple of men on a downtown sidewalk, one cop seized his camera and gave him a ticket, saying he'd broken the law by recording the officers without their permission.

    The Multnomah County District Attorney's Office declined to prosecute, and now Tabor is trying to force the Portland Police Bureau to take a formal position on whether it's OK for civilians to videotape cops -- with sound -- in public places.

    In a tort claim notice to the city last week, attorney Benjamin Haile informed the city of Tabor's intent to sue for $100 and a written policy saying that citizens have the right to make video and audio records of police. Haile has taken on Tabor's case at no charge to Tabor. He says recording officers on the job is a fundamental part of holding police accountable that Haile believes is protected by the First Amendment.

    The issue isn't an isolated one. Last month, Beaverton police arrested a 27-year-old Aloha man on accusations that he illegally recorded an officer arresting another man at a bowling alley. Ho Xent Vang recorded the encounter on his cell phone, and Beaverton police say the audio part of the recording violated state law because the officer didn't give his consent.

    In both cases, police were citing ORS 165.540, which makes it generally illegal to tape-record a conversation without first obtaining permission except in cases where a person wouldn't reasonably expect privacy, such as at a public meeting or sporting event.

    Portland police spokesman Sgt. Brian Schmautz said he believes the public doesn't have a right to record officers' conversations - on or off the job - without their consent.

    "Just because somebody is a police officer doesn't mean they give up their rights," Schmautz said.

    The videotaping incident that netted Tabor a ticket unfolded when Tabor spotted officers Dane Reister and Nicholas Ragona stopping two men on March 25 next to the Portland Art Museum. On the nine-minute video, one of the officers can be heard accusing one man of being a drug dealer and the other a drug buyer. He repeatedly asks one of the men for his ID and to allow himself to be patted down. At one point, the officer -identified by Tabor as Reister -tells the man to back away. And when the man takes a step back, Reister takes two or three steps forward and shoves the man in the chest.

    "That bugged me," said Tabor. "It really looked like intimidation - bully-type stuff."

    After patting the man down, the officers let both men go. Then Reister walks over to Tabor, asks him if the camera was also recording sound, and when Tabor says yes, tells Tabor to hand over the camera.

    "I was just totally surprised," Tabor said.

    Tabor began to walk to Central Precinct to file a complaint. The officers pulled up in their patrol car and asked what he was doing and then said they'd meet him in the lobby.

    Tabor claims that after waiting about 20 minutes, the officers returned his camera and handed him a ticket. Tabor said the officers told him he was standing too close and making them nervous in what could have been a dangerous situation.

    Tabor said he doesn't think he was standing too close - and if the officers thought he was, they should have said so.

    Deputy city attorney Dave Woboril said he'll review the incident, but said that Oregon's law is "pretty complicated." Woboril said his reading of the statute is that people can't surreptitiously make an audio recording of others who think their conversations are private. But Woboril said most people assume that someone holding a videocamera out in the open is recording sound as well as video. In general, he believes civilians have the right to record officers in public places in that way.

    In 1991, then-police chief Tom Potter issued a training bulletin stating that the public had the right to record video and audio of police arresting suspects in a public place. Woboril, Schmautz and Police Chief Rosie Sizer weren't aware of the bulletin, but Tabor's attorney, Haile, dug up it up in his research.

    Haile said he wants the bureau to specify that police stops -- not just arrests -- can be recorded. He also wants the policy put in the bureau's policy and procedures manual, so it won't be forgotten.

    Haile noted that Potter's bulletin was issued shortly after Rodney King, a black man who was stopped for speeding, was videotaped by a bystander being beaten by four Los Angeles police officers. The videotape spurred widespread discussion about police brutality.

    Dan Handelman, of Portland Copwatch, said he hears about a few cases each year in which videocameras are seized by police. He says if police are acting professionally and lawfully, they should have no objection to being videotaped. "It could end up exonerating the police -- it could be good for them."

    -- Aimee Green; aimeegreen@news.oregonian.com

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    it pisses me off officers are excluded from this while in uniform and displaying a badge, they have a "reasonable" chance to inform the other person

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    Here's the law, from http://www.leg.state.or.us/ors/165.html
    ORS 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:

    (a) Obtain or attempt to obtain the whole or any part of a telecommunication or a radio communication to which the person is not a participant, by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, unless consent is given by at least one participant.

    (b) Tamper with the wires, connections, boxes, fuses, circuits, lines or any other equipment or facilities of a telecommunication or radio communication company over which messages are transmitted, with the intent to obtain unlawfully the contents of a telecommunication or radio communication to which the person is not a participant.

    (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.

    (d) Obtain the whole or any part of a conversation, telecommunication or radio communication from any person, while knowing or having good reason to believe that the conversation, telecommunication or radio communication was initially obtained in a manner prohibited by this section.

    (e) Use or attempt to use, or divulge to others, any conversation, telecommunication or radio communication obtained by any means prohibited by this section.

    (2)(a) The prohibitions in subsection (1)(a), (b) and (c) of this section do not apply to:

    (A) Officers, employees or agents of a telecommunication or radio communication company who perform the acts prohibited by subsection (1)(a), (b) and (c) of this section for the purpose of construction, maintenance or conducting of their telecommunication or radio communication service, facilities or equipment.

    (B) Public officials in charge of and at jails, police premises, sheriffs’ offices, Department of Corrections institutions and other penal or correctional institutions, except as to communications or conversations between an attorney and the client of the attorney.

    (b) Officers, employees or agents of a telecommunication or radio communication company who obtain information under paragraph (a) of this subsection may not use or attempt to use, or divulge to others, the information except for the purpose of construction, maintenance, or conducting of their telecommunication or radio communication service, facilities or equipment.

    (3) The prohibitions in subsection (1)(a), (b) or (c) of this section do not apply to subscribers or members of their family who perform the acts prohibited in subsection (1) of this section in their homes.

    (4) The prohibitions in subsection (1)(a) of this section do not apply to the receiving or obtaining of the contents of any radio or television broadcast transmitted for the use of the general public.

    (5) The prohibitions in subsection (1)(c) of this section do not apply to:

    (a) A person who records a conversation during a felony that endangers human life;

    (b) A law enforcement officer who is in uniform and displaying a badge and who is operating a vehicle-mounted video camera that records the scene in front of, within or surrounding a police vehicle, unless the officer has reasonable opportunity to inform participants in the conversation that the conversation is being obtained; or

    (c) A law enforcement officer who, acting in the officer’s official capacity, deploys an Electro-Muscular Disruption Technology device that contains a built-in monitoring system capable of recording audio or video, for the duration of that deployment.

    (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;

    (b) Regularly scheduled classes or similar educational activities in public or private institutions; or

    (c) Private meetings or conferences if all others involved knew or reasonably should have known that the recording was being made.

    (7) The prohibitions in subsection (1)(a), (c), (d) and (e) of this section do not apply to any:

    (a) Radio communication that is transmitted by a station operating on an authorized frequency within the amateur or citizens bands; or

    (b) Person who intercepts a radio communication that is transmitted by any governmental, law enforcement, civil defense or public safety communications system, including police and fire, readily accessible to the general public provided that the interception is not for purposes of illegal activity.

    (8) Violation of subsection (1) or (2)(b) of this section is a Class A misdemeanor.

    (9) As used in this section:

    (a) “Electro-Muscular Disruption Technology device” means a device that uses a high-voltage, low power charge of electricity to induce involuntary muscle contractions intended to cause temporary incapacitation. “Electro-Muscular Disruption Technology device” includes devices commonly known as tasers.

    (b) “Law enforcement officer” has the meaning given that term in ORS 133.726. [1955 c.675 §§2,7; 1959 c.681 §2; 1961 c.460 §1; 1979 c.744 §9; 1983 c.693 §1; 1983 c.740 §35; 1983 c.824 §1; 1987 c.320 §87; 1989 c.983 §14a; 1989 c.1078 §1; 2001 c.104 §54; 2001 c.385 §4; 2003 c.14 §62; 2007 c.879 §1]
    Some notes on the highlighted portions (red and underlined)

    (1)(a) You need CONSENT from one person in a telecommunication or radio communication, if you are not a party in that conversation. That apperantly means that if I have my wife record a phone conversation I am in (with my consent), then she can legally record it, but since I am a party IN the conversation, I cannot record it all by myself?

    (1)(c) To record a conversation, all participants must be specifically INFORMED it is being recorded. This does NOT say they must consent to it. It also doesn't say WHEN they have to be informed they are being recorded. Since it doesn't say before or at the beginning, can you justtell them at the tail end of the conversation?

    (5)(b) This law does not apply to POLICE officers recording us with their dash cams. They can record us, but we can't record them? And how many of us have had the officer tell us they're recording during the traffic stop? They had plenty of opportunity to inform us they're recording it, and I've never had them do it. The next time I'm pulled over, I'm going to request the video under the FOIA and then find out if I can press charges against the officer in violation of this law.

    (6)(c) If you're holding up a cell phone like a camera, or obviously using a digital or video camera, wouldn't a police officer looking at you reasonably know you're recording them?

    This law's got a bunch of problems and needs to be eliminated or severaly hacked down to a reasonable size. Police officers are a public servant and citizens should be able to audio record them without prosecution.

    ...BTW, if an officer asks if you're recording audio, YOU ARE NOT REQUIRED TO ANSWER ANY QUESTIONS...
    ...Orygunner...


    Edited: corrected some punctuation & spelling.

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    Orygunner wrote:
    Some notes on the highlighted portions (red and underlined)

    (1)(a) You need CONSENT from one person in a telecommunication or radio communication, if you are not a party in that conversation. That apperantly means that if I have my wife record a phone conversation I am in (with my consent), then she can legally record it, but since I am a party IN the conversation, I cannot record it all by myself?
    As a party to the conversation, you may give consent to yourself to record it.

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    grishnav wrote:
    Orygunner wrote:
    Some notes on the highlighted portions (red and underlined)

    (1)(a) You need CONSENT from one person in a telecommunication or radio communication, if you are not a party in that conversation. That apperantly means that if I have my wife record a phone conversation I am in (with my consent), then she can legally record it, but since I am a party IN the conversation, I cannot record it all by myself?
    As a party to the conversation, you may give consent to yourself to record it.
    Actually, to me it seemed pretty plain to the contrary until I read it more carefully.:

    "Obtain or attempt to obtain the whole or any part of a telecommunication or a radio communication to which the person is not a participant..."

    I thought thatit makes absolutely no logical sense at all. To follow the letter of the law, you cannot give yourself consent to record a phone/radio conversation you are a party in.

    I can't find in this law where itspecifically prohibits a person that IS a party in the phone conversation from recording it!Therefore, anything not prohibited is allowed! So it IS allowed with phone & radio conversations.

    But it prohibits recording a live conversation. Wacky.

    ...Note, I AM NOT A LAWYER...
    ...Orygunner...

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    The cop saw the man there holding the camera after the detainee mentioned him filming it, the cop didn't say "Hey I'm not consenting don't do that" he looked at him, then he looked away, seemingly not caring. Isn't that called "Informed consent?" the officer was informed that he was being audo/video recorded when the detainee said so, aswell as the officer looking, and he didn't say anything. If what the cop was saying is true (which it's not) he would have only been able to ask him to stop recording at the part where the officer REVOKED consent, but he had no lawful authority to sieze the camera.

    I always have a digital video recorder with me. It is the only weapon I will use against the government (other than truth).

    Satyagraha, ftw.

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    Orygunner wrote:
    But it prohibits recording a live conversation. Wacky.

    I still maintain that it doesn't.

    In the remainder of the wiretapping/interception/illegal recording statues, the law refers back to ORS chapter 133 (which is the body of law that covers procedures for lawful intercepts, ie. police wiretaps) for it's definition of things like "oral communication."
    edit: I jumped the gun a little here when I wrote all this... the law makes it illegal to record a conversation, which is defined as oral communications between two or more people. There's also case law to back that up, where a dash-cam was used to convict a drunk who claimed he was sober, and he argued the recording was made illegal under ors 165.540, the court decided that because he was talking to himself -- and nobody else -- in his drunken state, the recording was made legally. So for everything I write below, keep in mind it requires two people exchanging these "oral communication" things.
    For some reason, they weren't thoughtful enough to do so for 165.540.

    If I ever had my day in court, my argument would be pretty simple:

    The persecution [sic] has accused me of intercepting an Oral Communication. So what is an oral communication? Well, we could go with our gut, or we could go grab a Websters, but I'd argue that the best definition of an Oral Communication, for the purpose of Oregon law, can be found in Oregon law itself, in chapter 133:

    (7) “Oral communication” means: (a) Any oral communication, other than a wire or electronic communication, uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation; or
    (b) An utterance by a person who is participating in a wire or electronic communication, if the utterance is audible to another person who, at the time the wire or electronic communication occurs, is in the immediate presence of the person participating in the communication.

    So in order to have "intercepted" or "obtained" and oral communication, the persecution [sic] must prove not only that you intercepted or obtained it, but also that it indeed was an Oral Communication, which is anything uttered by a person exhibiting an expectation that such communication is not subject to interception, and that the circumstances justify such expectations.

    Every time I read this definition, I imagine three guys with cars pulled into a dirt of gravel lot in the middle of the night out in the middle of nowhere -- mafia, drug lord, or corrupt cop style -- getting together, and going, "Ok, let's discuss our plans. None of you's wearin' a wire, right?" and the other guy going, "Nope. Nobody here's recordin' nothin'!"

    In that case, obtaining the conversation might be illegal. It would still be legal if it were obtained by a person acting under a court ordered "lawful intercept."

    If the person did not exhibit an expectation, or if that expectation is unreasonable, then what you and the person were having was not an "oral communication".

    Oregon law makes obtaining oral communications illegal. While you may have obtained something when you made the recording, that thing was not an oral communication, and therefore obtaining it is not illegal.
    edit: Actually, it makes obtaining a conversation illegal, which means that at least two people must express their expectation of privacy, and that both expectations must be reasonable/justified under the circumstances. Yikes.
    Among other things... like that fact that public events are excepted, and arrests/interactions with the police should be considered public events, if they aren't.

    An interesting side effect of this law: It's legal to record an officer in public, it's legal to record his radio traffic from your scanner, but it's probably illegal to record him talking into his radio if you happen to be standing next to him (unless you happen to pick it up from your scanner and not his radio/mouth). You're SOL if he starts talking on his cell phone.

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    By the way, I'm pretty sure the police exceptions are unconstitutional.

    Section 20. Equality of privileges and immunities of citizens. No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.–

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    NaT805 wrote:
    Isn't that called "Informed consent?"
    I think you were searching for "implied consent"

    I would say that it is. The police would argue that they had to get their present situation cleared up before they could deal with the camera.

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    Why is Tabor only suing for $100? Will that even be worth his time? From watching is video it seems that he was doing everything legal.

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    The $100 is probably simply to recover his filing costs for (small claims?) court. The rest of it is what I believe he's after:

    ...Tabor's intent to sue for $100 and a written policy saying that citizens have the right to make video and audio records of police.
    That's my guess from the information provided...
    ...Orygunner...

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    Why do the police believe they have privacy? Being agents of the government, how can they imply that their conversations and action in public require their consent to be recorded? How else are the police to be held to account by the public if their actions cannot be recorded? When I am pulled over, can I refuse consent for being recorded by the dash cam? I don't think so.

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    I think the cops are going to get body slammed in court. They, nor anyone else, has an expectation of privacy in public, period. Open fields doctrine from the supreme court says so.

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    http://spamnotes.com/2008/09/17/the-...pe-police.aspx

    The First Amendment, a number of courts have ruled, protects the right to videotape police in the conduct of their public duties, as it is connected to the "redress of grievances" provision. How can you petition for redress if it's against the law to record evidence of the grievance?

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