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Thread: "Drop the camera/recorder or we'll shoot!"

  1. #1
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    Janesville, Wisconsin, United States

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    In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

    Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

    The legal justification for arresting the "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.

    Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law - requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."

    The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler's license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

    In 2001, when Michael Hyde was arrested for criminally violating the state's electronic surveillance law - aka recording a police encounter - the Massachusetts Supreme Judicial Court upheld his conviction 4-2. In dissent, Chief Justice Margaret Marshall stated, "Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals…." (Note: In some states it is the audio alone that makes the recording illegal.)

    The selection of "shooters" targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate.

    Glik captured a police action on his cellphone to document what he considered to be excessive force. He was not only arrested, his phone was also seized.

    On his website Drew wrote, "Myself and three other artists who documented my actions tried for two months to get the police to arrest me for selling art downtown so we could test the Chicago peddlers license law. The police hesitated for two months because they knew it would mean a federal court case. With this felony charge they are trying to avoid this test and ruin me financially and stain my credibility."

    Hyde used his recording to file a harassment complaint against the police. After doing so, he was criminally charged.

    In short, recordings that are flattering to the police - an officer kissing a baby or rescuing a dog - will almost certainly not result in prosecution even if they are done without all-party consent. The only people who seem prone to prosecution are those who embarrass or confront the police, or who somehow challenge the law. If true, then the prosecutions are a form of social control to discourage criticism of the police or simple dissent.

    A recent arrest in Maryland is both typical and disturbing.

    On March 5, 24-year-old Anthony John Graber III's motorcycle was pulled over for speeding. He is currently facing criminal charges for a video he recorded on his helmet-mounted camera during the traffic stop.

    The case is disturbing because:

    1) Graber was not arrested immediately. Ten days after the encounter, he posted some of he material to YouTube, and it embarrassed Trooper J. D. Uhler. The trooper, who was in plainclothes and an unmarked car, jumped out waving a gun and screaming. Only later did Uhler identify himself as a police officer. When the YouTube video was discovered the police got a warrant against Graber, searched his parents' house (where he presumably lives), seized equipment, and charged him with a violation of wiretapping law.

    2) Baltimore criminal defense attorney Steven D. Silverman said he had never heard of the Maryland wiretap law being used in this manner. In other words, Maryland has joined the expanding trend of criminalizing the act of recording police abuse. Silverman surmises, "It's more [about] ‘contempt of cop' than the violation of the wiretapping law."

    3) Police spokesman Gregory M. Shipley is defending the pursuit of charges against Graber, denying that it is "some capricious retribution" and citing as justification the particularly egregious nature of Graber's traffic offenses. Oddly, however, the offenses were not so egregious as to cause his arrest before the video appeared.

    Almost without exception, police officials have staunchly supported the arresting officers. This argues strongly against the idea that some rogue officers are overreacting or that a few cops have something to hide. "Arrest those who record the police" appears to be official policy, and it's backed by the courts.

    Carlos Miller at the Photography Is Not A Crime website offers an explanation: "For the second time in less than a month, a police officer was convicted from evidence obtained from a videotape. The first officer to be convicted was New York City Police Officer Patrick Pogan, who would never have stood trial had it not been for a video posted on Youtube showing him body slamming a bicyclist before charging him with assault on an officer. The second officer to be convicted was Ottawa Hills (Ohio) Police Officer Thomas White, who shot a motorcyclist in the back after a traffic stop, permanently paralyzing the 24-year-old man."

    When the police act as though cameras were the equivalent of guns pointed at them, there is a sense in which they are correct. Cameras have become the most effective weapon that ordinary people have to protect against and to expose police abuse. And the police want it to stop.

    Happily, even as the practice of arresting "shooters" expands, there are signs of effective backlash. At least one Pennsylvania jurisdiction has reaffirmed the right to video in public places. As part of a settlement with ACLU attorneys who represented an arrested "shooter," the police in Spring City and East Vincent Township adopted a written policy allowing the recording of on-duty policemen.

    As journalist Radley Balko declares, "State legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials."

    Wendy McElroy is the author of several books on anarchism and feminism. She maintains the iconoclastic website as well as an active blog at

    The author of this post can be contacted at

  2. #2
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    Chilton, Wisconsin, USA

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    This does not apply to Wisconsin. You can legally record in Wisconsin without consent.

  3. #3
    Regular Member KansasKraut's Avatar
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    Verona, WI

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  4. #4
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    Dallas, Texas, USA

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    So... the police in those states are not allowed to record the dash cams and mics either?

    If so are any of them being prosecuted?

  5. #5

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    Hmmmmm, sounds like there's something afoot to squelch the truth!

  6. #6
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    The Northwoods, lakeland area, Wisconsin, USA

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    When I was younger I carried a 35MM camera with me whereever I went, I have been threatenedby many policewith arrest, breaking my camera, themremoving the film, etc etc. countless times.

    We need to remind the police forces in this country that they work for us. We are not their subjects.
    The more video and audio that we have to keep them on the straight and level the better it will be for everyone!

  7. #7
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    Avast! Providing there is no intended criminal use of the video, and infringement on ones First and Fourth Amendment rights me thinks.

  8. #8
    Campaign Veteran GLOCK21GB's Avatar
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    Green Bay, Wisconsin, USA

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    Captain Nemo wrote:
    Avast! Providing there is no intended criminal use of the video, and infringement on ones First and Fourth Amendment rights me thinks.
    you can take it to the supreme court while you sitting for 4 -15 years :? free country my azz. AACFI, Wisconsin / Minnesota Carry Certified. Action Pistol & Advanced Action pistol concepts + Urban Carbine course. When the entitlement Zombies begin looting, pillaging, raping, burning & killing..remember HEAD SHOTS it's the only way to kill a Zombie. Stockpile food & water now.

    Please support your local,county, state & Federal Law enforcement agencies, right ???

  9. #9
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    Washington Island, across Death's Door, Wisconsin, USA

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    995.50 Right of privacy.

    (1) The right of privacy is recognized
    in this state. One whose privacy is unreasonably invaded is
    entitled to the following relief:
    (a) Equitable relief to prevent and restrain such invasion,
    excluding prior restraint against constitutionally protected communication
    privately and through the public media;
    (b) Compensatory damages based either on plaintiff’s loss or
    defendant’s unjust enrichment; and
    (c) A reasonable amount for attorney fees.

    (2) In this section, “invasion of privacy” means any of the following:
    (a) Intrusion upon the privacy of another of a nature highly
    offensive to a reasonable person, in a place that a reasonable person
    would consider private or in a manner which is actionable for
    (b) The use, for advertising purposes or for purposes of trade,
    of the name, portrait or picture of any living person, without having
    first obtained the written consent of the person or, if the person
    is a minor, of his or her parent or guardian.
    (c) Publicity given to a matter concerning the private life of
    another, of a kind highly offensive to a reasonable person, if the
    defendant has acted either unreasonably or recklessly as to
    whether there was a legitimate public interest in the matter
    involved, or with actual knowledge that none existed. It is not an
    invasion of privacy to communicate any information available to
    the public as a matter of public record.
    (d) Conduct that is prohibited under s. 942.09, regardless of
    whether there has been a criminal action related to the conduct,
    and regardless of the outcome of the criminal action, if there has
    been a criminal action related to the conduct.

    (3) The right of privacy recognized in this section shall be
    interpreted in accordance with the developing common law of privacy,
    including defenses of absolute and qualified privilege, with
    due regard for maintaining freedom of communication, privately
    and through the public media.

    (4) Compensatory damages are not limited to damages for
    pecuniary loss, but shall not be presumed in the absence of proof.

    (6) (a) If judgment is entered in favor of the defendant in an
    action for invasion of privacy, the court shall determine if the
    action was frivolous. If the court determines that the action was
    frivolous, it shall award the defendant reasonable fees and costs
    relating to the defense of the action.
    (b) In order to find an action for invasion of privacy to be frivolous
    under par. (a), the court must find either of the following:
    1. The action was commenced in bad faith or for harassment
    2. The action was devoid of arguable basis in law or equity.

    (7) No action for invasion of privacy may be maintained under
    this section if the claim is based on an act which is permissible
    under ss. 196.63 or 968.27 to 968.37.
    History: 1977 c. 176; 1987 a. 399; 1991 a. 294; 2001 a. 33; 2005 a. 155 s. 51; Stats.
    2005 s. 995.50.

    Commercial misappropriation of a person’s name is prohibited by Wisconsin common
    law. Hirsch v. S.C. Johnson & Son, Inc. 90 Wis. 2d 379, 280 N.W.2d 129 (1979).
    Oral communication among numerous employees and jail inmates is sufficient to
    constitute publicity under sub. (2) (c). Hillman v. Columbia County, 164 Wis. 2d 376,
    474 N.W.2d 913 (Ct. App. 1991).

    Disclosure of private information to one person or to a small group does not, as a
    matter of law in all cases, fail to satisfy the publicity element of an invasion of privacy
    claim. Whether a disclosure satisfies the publicity element of an invasion of privacy
    claim depends upon the particular facts of the case and the nature of plaintiff’s relationship
    to the audience who received the information. Pachowitz v. LeDoux, 2003
    WI App 120, 265 Wis. 2d 631, 666 N.W.2d 88, 02−2100.

    An action for invasion of privacy requires : 1) a public disclosure of facts regarding
    the plaintiff; 2) the facts disclosed were private; 3) the private matter is one that would
    be highly offensive to a reasonable person of ordinary sensibilities; and 4) the party
    disclosing the facts acted either unreasonably or recklessly as to whether there was
    a legitimate public interest in the matter or with actual knowledge that none existed.
    In order to find public disclosure, the matter must be regarded as substantially certain
    to become one of public knowledge. Olson v. Red Cedar Clinic, 2004 WI App 102,
    273 Wis. 2d 728, 681 N.W.2d 306, 03−2198.

    The right to privacy law does not affect the duties of custodians of public records
    under s. 19.21. 68 Atty. Gen. 68.

    Surveillance of a school district employee from public streets and highways by the
    employer school district’s agents to determine whether the employee was in violation
    of the district’s residency policy did not violate this section. Munson v. Milwaukee
    Board of School Directors, 969 F.2d 266 (1992).

    A person’s religious affiliation, standing alone, is not so private that publication
    would offend a reasonable person and constitute an invasion of privacy under sub.
    (2) (c). Briggs & Stratton Corp. v. National Catholic Reporter Publishing Co. 978 F.
    Supp 1195 (1997).

    The exclusivity provision of the Workers Compensation Act does not bar a claim
    for invasion of privacy under s. 895.50. Marino v. Arandell Corp. 1 F. Supp. 2d 947

    The absence of false light from the Wisconsin privacy statute. 66 MLR 99 (1982).
    The tort of misappropriation of name or likeness under Wisconsin’s new privacy
    law. Endejan, 1978 WLR 1029.

    The Case for Reexamining Privacy Law in Wisconsin: Why Wisconsin Courts
    Should Adopt the Interpretation of the Tort of Intrusion upon Seclusion of Fisher v.
    Mount Olive Lutheran Church. Infield−Harm. 2004 WLR 1781.

    The Scope of Wisconsin’s Privacy Statute. Backer. Wis. Law. Sept. 2003.

    Employer Liability for Employment References. Mac Kelly. Wis. Law. May 2008.

    968.31 Interception and disclosure of wire, electronic
    or oral communications prohibited.

    (1) Except as otherwise
    specifically provided in ss. 196.63 or 968.28 to 968.30, whoever
    commits any of the acts enumerated in this section is guilty
    of a Class H felony:
    (a) Intentionally intercepts, attempts to intercept or procures
    any other person to intercept or attempt to intercept, any wire,
    electronic or oral communication.
    (b) Intentionally uses, attempts to use or procures any other
    person to use or attempt to use any electronic, mechanical or other
    device to intercept any oral communication.
    (c) Discloses, or attempts to disclose, to any other person the
    contents of any wire, electronic or oral communication, knowing
    or having reason to know that the information was obtained
    through the interception of a wire, electronic or oral communication
    in violation of this section or under circumstances constituting
    violation of this section.
    (d) Uses, or attempts to use, the contents of any wire, electronic
    or oral communication, knowing or having reason to know that the
    information was obtained through the interception of a wire, electronic
    or oral communication in violation of this section or under
    circumstances constituting violation of this section.
    (e) Intentionally discloses the contents of any oral, electronic
    or wire communication obtained by authority of ss. 968.28,
    968.29 and 968.30, except as therein provided.
    (f) Intentionally alters any wire, electronic or oral communication
    intercepted on tape, wire or other device.

    (2) It is not unlawful under ss. 968.28 to 968.37:
    (a) For an operator of a switchboard, or an officer, employee
    or agent of any provider of a wire or electronic communication
    service, whose facilities are used in the transmission of a wire or
    electronic communication to intercept, disclose or use that communication
    in the normal course of his or her employment while
    engaged in any activity which is a necessary incident to the rendition
    of his or her service or to the protection of the rights or property
    of the provider of that service, except that a provider of a wire
    or electronic communication service shall not utilize service
    observing or random monitoring except for mechanical or service
    quality control checks.
    (b) For a person acting under color of law to intercept a wire,
    electronic or oral communication, where the person is a party to
    the communication or one of the parties to the communication has
    given prior consent to the interception.
    (c) For a person not acting under color of law to intercept a
    wire, electronic or oral communication where the person is a party
    to the communication or where one of the parties to the communication
    has given prior consent to the interception unless the
    communication is intercepted for the purpose of committing any
    criminal or tortious act in violation of the constitution or laws of
    the United States or of any state or for the purpose of committing
    any other injurious act.
    (d) For any person to intercept or access an electronic communication
    made through an electronic communication system that
    is configured so that the electronic communication is readily
    accessible to the general public.
    (e) For any person to intercept any radio communication that
    is transmitted:
    1. By any station for the use of the general public, or that
    relates to ships, aircraft, vehicles or persons in distress;
    2. By any governmental, law enforcement, civil defense, private
    land mobile or public safety communications system, including
    police and fire, readily accessible to the general public;
    3. By a station operating on an authorized frequency within
    the bands allocated to the amateur, citizens band or general mobile
    radio services; or
    4. By any marine or aeronautical communications system.
    (f) For any person to engage in any conduct that:
    1. Is prohibited by section 633 of the communications act of
    1934; or
    2. Is excepted from the application of section 705 (a) of the
    communications act of 1934 by section 705 (b) of that act.
    (g) For any person to intercept any wire or electronic communication
    the transmission of which is causing harmful interference
    to any lawfully operating station or consumer electronic equipment,
    to the extent necessary to identify the source of the interference.
    (h) For users of the same frequency to intercept any radio communication
    made through a system that utilizes frequencies monitored
    by individuals engaged in the provision or the use of the system,
    if the communication is not scrambled or encrypted.
    (i) To use a pen register or a trap and trace device as authorized
    under ss. 968.34 to 968.37; or
    (j) For a provider of electronic communication service to
    record the fact that a wire or electronic communication was initiated
    or completed in order to protect the provider, another provider
    furnishing service toward the completion of the wire or electronic
    communication, or a user of that service, from fraudulent,
    unlawful or abusive use of the service.

    (2m) Any person whose wire, electronic or oral communication
    is intercepted, disclosed or used in violation of ss. 968.28 to
    968.37 shall have a civil cause of action against any person who
    intercepts, discloses or uses, or procures any other person to intercept,
    disclose, or use, the communication, and shall be entitled to
    recover from any such person:
    (a) Actual damages, but not less than liquidated damages computed
    at the rate of $100 a day for each day of violation or $1,000,
    whichever is higher;
    (b) Punitive damages; and
    (c) A reasonable attorney’s fee and other litigation costs reasonably

    (3) Good faith reliance on a court order or on s. 968.30 (7)
    shall constitute a complete defense to any civil or criminal action
    brought under ss. 968.28 to 968.37.
    History: 1971 c. 40 ss. 92, 93; 1977 c. 272; 1985 a. 297; 1987 a. 399; 1989 a. 56;
    1991 a. 294; 1997 a. 283; 2001 a. 109.

    The testimony of an undercover police officer who was carrying a concealed
    eavesdropping device under sub. (2) is not the product of the eavesdropping and is
    admissible even assuming the eavesdropping was unconstitutional. State v. Smith,
    72 Wis. 2d 711, 242 N.W.2d 184 (1976).

    An individual, who volunteers to aid the authorities in a lawful, albeit surreptitious,
    investigation does not commit an injury against the investigated party under sub. (2)
    (c) simply by participation. Undercover informants must surely realize that evidence
    they receive may be potentially harmful to the target of the investigation, but this is
    not the type of injurious act contemplated by the statute. State v. Maloney, 2005 WI
    74, 281 Wis. 2d 595, 698 N.W.2d 583, 03−2180.

    Consent under sub. (2) (b) may be express or implied in fact from surrounding circumstances
    indicating that the person knowingly agreed to the surveillance. In the
    prison setting, an inmate has given implied consent to electronic surveillance when
    he or she has meaningful notice that a telephone call is subject to monitoring and
    recording and nonetheless proceeds with the call. State v. Riley, 2005 WI App 203,
    287 Wis. 2d 244, 704 N.W.2d 635, 04−2321.

    The use of the “called party control device” by the communications common carrier
    to trace bomb scares and other harassing telephone calls would not violate any
    law if used with the consent of the receiving party. 60 Atty. Gen. 90.

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