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Thread: Off/On Duty police officer entitlement to privacy.

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    Regular Member Tucker6900's Avatar
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    Off/On Duty police officer entitlement to privacy.

    I have a question that stemmed from another post on this forum that went unanswered.

    Does a police officer, on duty or off duty, have any entitlement to privacy, regardless of the location, if he/she is questioning your right to open carry?

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    If they are acting in their official capacity as a representative of the government, then they have no right to privacy in those official dealings. There was a very recent court ruling that essentially said that. Of course, in that ruling, the officer was clearly on duty. However, that was not the reason he had no expectation of privacy. It was that he a government official conducting official business.

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    Regular Member Tomas's Avatar
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    I agree with eye95's answer and in addition would add that wearing a uniform or not, on duty or not, as soon as an officer identifies themself as an officer when dealing with you, they are acting in their official capacity, and not as a private citizen.

    Anything he or she does is then "under the color of law."

    IANAL...
    No tyranny is so irksome as petty tyranny: The officious demands of policemen, government clerks, and electromechanical gadgets. -- Edward Abbey

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    Quote Originally Posted by eye95 View Post
    If they are acting in their official capacity as a representative of the government, then they have no right to privacy in those official dealings. There was a very recent court ruling that essentially said that. Of course, in that ruling, the officer was clearly on duty. However, that was not the reason he had no expectation of privacy. It was that he a government official conducting official business.
    Cite, please.

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    Campaign Veteran skidmark's Avatar
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    I agree with eye95's answer and in addition would add that wearing a uniform or not, on duty or not, as soon as an officer identifies themself as an officer when dealing with you, they are acting in their official capacity, and not as a private citizen.

    Anything he or she does is then "under the color of law."
    Quote Originally Posted by Citizen View Post
    Cite, please.
    When an individual identifies themself as a police officer they are exercising their lawful authority to enforce laws and effect arrest. They cannot do that while off-duty where their only authority would be that of a citizen's arrest.

    Of course this brings up the question of wheher or not a police officer is ever "off duty", given their general proclivity to identify themselves as police officers whenever they feel the need/desire to interject their authority into a situatiuon. The only way I can consider determining if a police officer is ever "off duty" - other than by reading his department's policies about interjecting themself into situations when not on officially proscribed shift, would be to see if they would be covered by Workers Comp if injured in the situation.

    And this now gets into the murkiness of cops moonlighting as private security guards. Are they cops or are they private security guards? If they are cops how does their department handle the overtime and time-off issues? If they are not cops but private security guards why do they get to wear cop uniforms?

    But to get back to the OP's question, and Citizen's desire for a citation - the answer depends on the specific department's policy on law enforcement activity when not officially on duty as defined by official work assignment. And if the individual asserts that they are acting under color of law. If so, the courts are going to be loathe to say they were not, for that denies them the protection of limited immunity.

    stay safe.

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    I has been my understanding that ANYONE out in "public" does not have the asumption of privacy..... that is what makes the paparatzi legal in incessantly hounding "celebrities" and the idea behind cameras in public places. now any private place of bisiness that uses cameras/ surveilance systems, must post a sign on or about the premisis notifying patrons of that fact. I AM NOT A LAWYER... JUST MY HUMBLE OPINION

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    Quote Originally Posted by Tucker6900 View Post
    I have a question that stemmed from another post on this forum that went unanswered.

    Does a police officer, on duty or off duty, have any entitlement to privacy, regardless of the location, if he/she is questioning your right to open carry?
    Remember, the Federal Court has ruled that no one has a reasonable expectation of privacy outside their home. This is exactly why we've seen complaints about mysterious GPS tracking devices popping up on vehicles...the action is legal under that court case.

    If you used that court ruling, then no as long as they are outside their home. But, since I am not a lawyer, I suggest you read that case ruling.
    Last edited by heresyourdipstickjimmy; 11-14-2010 at 06:08 PM.

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    Quote Originally Posted by heresyourdipstickjimmy View Post
    Remember, the Federal Court has ruled that no one has a reasonable expectation of privacy outside their home. This is exactly why we've seen complaints about mysterious GPS tracking devices popping up on vehicles...the action is legal under that court case.
    There is absolutely no reason that anyone would want to put a GPS bug on my vehicle, but I'd love to find one.

    As an electronics hobbyist it would be fun to dissect one, then put some of it back together and send it on it's way with no GPS - only the much less accurate cellular location - attached to a taxi or delivery vehicle.

    Disclaimer: I would of course never do such a thing...
    No tyranny is so irksome as petty tyranny: The officious demands of policemen, government clerks, and electromechanical gadgets. -- Edward Abbey

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    "No one has a reasonable expectation of privacy outside their home"???

    News to me. Have we over-embellished an actual ruling to make it seem worse than it is?

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    Judge Emory A. Pitt Jr wrote, "Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. 'Sed quis custodiet ipsos cutodes' ("Who watches the watchmen?”)." This particular case involved Anthony Graber videotaping a Maryland State Trooper.

    http://voices.washingtonpost.com/loc...clist-tro.html

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    Quote Originally Posted by eye95 View Post
    If they are acting in their official capacity as a representative of the government, then they have no right to privacy in those official dealings. There was a very recent court ruling that essentially said that. Of course, in that ruling, the officer was clearly on duty. However, that was not the reason he had no expectation of privacy. It was that he a government official conducting official business.
    Quote Originally Posted by palerider116 View Post
    Judge Emory A. Pitt Jr wrote, "Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. 'Sed quis custodiet ipsos cutodes' ("Who watches the watchmen?”)." This particular case involved Anthony Graber videotaping a Maryland State Trooper.

    http://voices.washingtonpost.com/loc...clist-tro.html
    That would be the court ruling I was talking about. Thanks for looking it up.

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    You're quite welcome.

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    Quote Originally Posted by Ken56 View Post
    I has been my understanding that ANYONE out in "public" does not have the asumption of privacy..... that is what makes the paparatzi legal in incessantly hounding "celebrities" and the idea behind cameras in public places. now any private place of bisiness that uses cameras/ surveilance systems, must post a sign on or about the premisis notifying patrons of that fact. I AM NOT A LAWYER... JUST MY HUMBLE OPINION
    The incident in question happened in a restaurant restroom. Does that change things?

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    Quote Originally Posted by Tucker6900 View Post
    The incident in question happened in a restaurant restroom. Does that change things?
    I dunno. We have someone here asserting that the SCOTUS ruled that we have no expectation of privacy outside of our homes. So he says that the ruling says that we have no expectation of privacy in a public restroom!

    If we are saying that an off-duty police officer acting under color of law challenges a citizen's right to carry in a public restroom, then the officer has no expectation of privacy. If he chooses to act as a government official with his pants down, that is his foolish choice.

    The citizen in the public restroom retains his expectation of privacy until and unless the officer has RAS of a crime on the part of the citizen. A properly holstered pistol, attached to a belt, on a pair of pants, around the ankles of the citizen in the next stall is not RAS--just something that might intrigue a toe-tapping senator.

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    Wink

    Quote Originally Posted by eye95 View Post
    A properly holstered pistol, attached to a belt, on a pair of pants, around the ankles of the citizen in the next stall is not RAS--just something that might intrigue a toe-tapping senator.
    LMAO!!

    Thanks for the insight!

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    Quote Originally Posted by eye95 View Post
    If they are acting in their official capacity as a representative of the government, then they have no right to privacy in those official dealings. There was a very recent court ruling that essentially said that. Of course, in that ruling, the officer was clearly on duty. However, that was not the reason he had no expectation of privacy. It was that he a government official conducting official business.

    Actually, I believe you are referring to the case in MD involving the speeder on the motorcycle with the helmet-cam, which the courts tossed because of an "no expectation of privacy" defense.

    If it IS that case, you are wrong--the FIRST officer to respond to that event--the guy in plain clothes, in an unmarked car who jumped out of his vehicle with his gun drawn and screaming orders--was in fact OFF DUTY.

    There really is NO SUCH THING as "on" or "off duty". If a crime is committed in front of ANY sworn LEO while in his jurisdiction, he is legally entitled to act as if he was "on duty" if it's his day off, or he just got off shift, or whatever. So technically, the ONLY functional difference between on- and off-duty is the clothes the person is wearing and the vehicle they are driving...

    As for the expectation of privacy issue, I think that depends on what the LEO is doing. If they are harassing you, and asking questions, or trying to somehow exert authority (saying "I'm a cop, and you can't do that", etc...) then recording them would be OK. If however, you were just talking to someone in WalMart about hamburgers, or the newest hammer from Stanley, then I think there WOULD be a reasonable expectation of privacy...

    The REAL answer to this question, however, is SIMPLE. Move to a State that has "one party consent", where you don't have to worry about such silliness such as cop-shielding statutes...
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    Quote Originally Posted by palerider116 View Post
    Judge Emory A. Pitt Jr wrote, "Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. 'Sed quis custodiet ipsos cutodes' ("Who watches the watchmen?”)." This particular case involved Anthony Graber videotaping a Maryland State Trooper.

    http://voices.washingtonpost.com/loc...clist-tro.html
    I wonder how that ruling will affect the very similar Illinois law about recording LEO's without informing them.
    I won't be wronged, I won't be insulted, and I won't be laid a hand on. I don't do those things to other people and I require the same of them.

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    Thumbs up

    Personally, being recorded doesn't bother me. Hopefully the lesson being delivered will have a bigger audience than the original target. Lawful police activity should be captured as should unlawful police activity. Now, if you are standing on top of the officer trying to record it like its an episode of Steven Seagal: Lawman, that is unreasonable. Reasonable distance plus a video camera... who cares. There are so many cameras in place now that there is no such thing as privacy.

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    Quote Originally Posted by OldCurlyWolf View Post
    I wonder how that ruling will affect the very similar Illinois law about recording LEO's without informing them.
    This was a local decision, so its legal precedence will not probably span that far.

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    Welcome palerider!

    Quote Originally Posted by palerider116 View Post
    Personally, being recorded doesn't bother me.
    It would me, in a situation where I have an expectation of privacy. The "expectation of privacy" standard is one of the most valuable legal concepts around. We need to protect it. The court rightly decided that the officers had no (and should have no) expectation of privacy when officially dealing with the public. Sunshine when the government exercises its power over people is just as important a legal concept.

    Quote Originally Posted by palerider116 View Post
    This was a local decision, so its legal precedence will not probably span that far.
    It may not be controlling, but it will be compelling. If other circuits within the US don't agree with the precedent, the Supreme Court will settle the difference. I suspect they would agree with the court in Maryland.
    Last edited by eye95; 11-16-2010 at 08:26 AM.

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    Thanks for the welcome eye95!

    I must apologize for I should have been more specific. In the execution of public duty, I do not mind if I am recorded. Privacy is yielded when you put on a uniform with a badge or are running around in plainclothes displaying a badge (plus any other activity in which you step into active duty mode).

    Do the right thing at all times. People will get bored with you quickly because its not sensational or there is some moron that will make a great recording.

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    Quote Originally Posted by palerider116 View Post
    Thanks for the welcome eye95!

    I must apologize for I should have been more specific. In the execution of public duty, I do not mind if I am recorded. Privacy is yielded when you put on a uniform with a badge or are running around in plainclothes displaying a badge (plus any other activity in which you step into active duty mode).

    Do the right thing at all times. People will get bored with you quickly because its not sensational or there is some moron that will make a great recording.
    Ah. I agree.

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    Quote Originally Posted by eye95 View Post
    A properly holstered pistol, attached to a belt, on a pair of pants, around the ankles of the citizen in the next stall is not RAS--just something that might intrigue a toe-tapping senator.
    Uh, I don't believe that was all he was tapping, but we needn't go there, eh?

    (Thanks for the chuckle, Eye. )
    No tyranny is so irksome as petty tyranny: The officious demands of policemen, government clerks, and electromechanical gadgets. -- Edward Abbey

    • • • Quis custodiet ipsos custodes? Faciémus!• • •

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    Regular Member sudden valley gunner's Avatar
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    Remember Tomas here in Washington they had to specifically outlaw up skirt cameras/videos because of the no expectation of privacy in public.
    I am not anti Cop I am just pro Citizen.

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    Quote Originally Posted by NavyLT View Post
    Even if the subject is a public official/servant?

    Sorry, couldn't resist.
    If the subject is a public official/servant and he is conducting official business with a member of the public inside his kilt, then he has no expectation of privacy up his skirt.

    How did we get here?

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