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Thread: Federal Appeals Court rules recording of police is Constitutionally protected

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    Regular Member John Hardin's Avatar
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    Thumbs up Federal Appeals Court rules recording of police is Constitutionally protected

    Use of the two-party consent law in Massachusetts to prosecute those recording police activities in public has been ruled unconstitutional by a federal appeals court:

    http://www.universalhub.com/2011/cou...ng-police-offi

    http://www.ca1.uscourts.gov/pdf.opin...-1764P-01A.pdf

    I know the Washington SC has ruled that police cannot claim privacy protection against recordings of actions taken in public in pursuit of their duties, but it's good to see this gaining traction at the federal level too...

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    Regular Member Schlepnier's Avatar
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    Thumbs up

    Fantastic news! glad to see those miss-applied "wiretapping" laws get what they deserve.
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    Anti-Saldana Freedom Fighter Venator's Avatar
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    From the ruling:

    It is of no significance that the present case, unlike Iacobucci and many of those cited above, involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press. Houchins, 438 U.S. at 16 (Stewart, J., concurring) (noting that the Constitution "assure[s] the public and the press equal access once government has opened its doors"); Branzburg, 408 U.S. at 684 ("[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.").
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    most excellent

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    Campaign Veteran rcawdor57's Avatar
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    Thumbs up It's About Time!

    For once we have an honest court that knows the Constitution!
    “The Constitution shall never be construed... to prevent the People of the United States who are peaceable citizens from keeping their own arms.” -- Samuel Adams

    “Today, we need a nation of Minutemen. Citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom.”

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    Founder's Club Member protias's Avatar
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    Very good news!
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    Regular Member sudden valley gunner's Avatar
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    And yet at the shooting in the Lynden Fair a deputy apparently forced a bystander to delete her pics.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
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    Dont get too excited this ruling is from the 1st circuit court and does not apply here until ruled upon by the 9th circuit or by SCOTUS. While it is great to see some commn sense in a court ruling dont count on it for a legal defence, just saying. Washington has some pretty good laws already on recording LEOs.

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    Quote Originally Posted by Orphan View Post
    Dont get too excited this ruling is from the 1st circuit court and does not apply here until ruled upon by the 9th circuit or by SCOTUS. While it is great to see some commn sense in a court ruling dont count on it for a legal defence, just saying. Washington has some pretty good laws already on recording LEOs.
    While the 1st Circuit's opinion in Gilk v. Cunniffee is not binding precent out there, the 1st Circuit did cite the 9th Circuit's decision in Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995), in which your circuit recognized a "First Amendment right to film matters of public interest."
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    Quote Originally Posted by WVCDL View Post
    While the 1st Circuit's opinion in Gilk v. Cunniffee is not binding precent out there, the 1st Circuit did cite the 9th Circuit's decision in Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995), in which your circuit recognized a "First Amendment right to film matters of public interest."
    Courts often cite other courts it still does not hold precident on the 9th circuit. My concern was that someone would get them selves in trouble thinking recording was covered now. We have had enough misunderstanding in Washington about where you can and can not record.

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    While I agree that mentioning another circuit's case doesn't mean a lot, the original 9th Circuit opinion in Fordyce IS in force in the 9th Circuit, and doesn't that case cover recording with a "obvious" device?

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    Quote Originally Posted by oneeyeross View Post
    While I agree that mentioning another circuit's case doesn't mean a lot, the original 9th Circuit opinion in Fordyce IS in force in the 9th Circuit, and doesn't that case cover recording with a "obvious" device?
    Yes but only recording with an obvious device in a public place/setting, recording a private conversation is still unlawful in Washington without notification/permission. That last bit was/is what I am worried someone willl forget and get thm selves in trouble. We also have http://www.copwatch.org/statevflora.htm that is a good one to understand.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Orphan View Post
    Yes but only recording with an obvious device in a public place/setting, recording a private conversation is still unlawful in Washington without notification/permission. That last bit was/is what I am worried someone willl forget and get thm selves in trouble. We also have http://www.copwatch.org/statevflora.htm that is a good one to understand.
    I also like Johnson vs. Sequim
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by sudden valley gunner View Post
    I also like Johnson vs. Sequim
    +1 I should have included that the 1st time, thanks

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    Regular Member FMCDH's Avatar
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    Quote Originally Posted by Orphan View Post
    Yes but only recording with an obvious device in a public place/setting, recording a private conversation is still unlawful in Washington without notification/permission. That last bit was/is what I am worried someone willl forget and get thm selves in trouble. We also have http://www.copwatch.org/statevflora.htm that is a good one to understand.
    Orphan,

    Correct me if I am wrong, and just to add a bit of clarity to your post, but isn't notification all that is required under Washington law, and if the individual continues the conversation after that, its considered implied permission to continue recording?

    In essence, you giving them the choice to shut up and/or go away, or continue the conversation on the record, but there is no expectation that you have to stop recording even if they object, correct?
    Last edited by FMCDH; 09-04-2011 at 03:12 AM.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by FMCDH View Post
    Orphan,

    Correct me if I am wrong, and just to add a bit of clarity to your post, but isn't notification all that is required under Washington law, and if the individual continues the conversation after that, its considered implied permission to continue recording?

    In essence, you giving them the choice to shut up and/or go away, or continue the conversation on the record, but there is no expectation that you have to stop recording even if they object, correct?
    That includes phone calls, as long as the notification is on the recording itself, if I remember correctly.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by FMCDH View Post
    Orphan,

    Correct me if I am wrong, and just to add a bit of clarity to your post, but isn't notification all that is required under Washington law, and if the individual continues the conversation after that, its considered implied permission to continue recording?

    In essence, you giving them the choice to shut up and/or go away, or continue the conversation on the record, but there is no expectation that you have to stop recording even if they object, correct?
    Correct notification is only required for a private conversation (see my 1st post) The problem as I see it is what are you going to do when the LEO says no. The LEO may not be able to walk away because you look like the guy that just robbed the 7-11 or ????, the LEO does not have to tell you why you are detained at that point. Even with notification the lack of knowledge of the recording laws by LEOs is staggering and that could cost a lot of money to get straightened up.

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    Regular Member amlevin's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    That includes phone calls, as long as the notification is on the recording itself, if I remember correctly.
    You are correct.

    (3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.
    RCW9.73.030
    Last edited by amlevin; 09-04-2011 at 10:39 AM.
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    Regular Member amlevin's Avatar
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    Quote Originally Posted by FMCDH View Post
    Orphan,

    Correct me if I am wrong, and just to add a bit of clarity to your post, but isn't notification all that is required under Washington law, and if the individual continues the conversation after that, its considered implied permission to continue recording?

    In essence, you giving them the choice to shut up and/or go away, or continue the conversation on the record, but there is no expectation that you have to stop recording even if they object, correct?
    You might have trouble convincing a Court of that. The law says specifically that you have to have the consent of ALL parties before recording.

    (b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.
    If you announce that you are recording, and that announcement is also recorded as required by law, then the recording would also then capture anyone's objection to that recording. That in itself would be an indication that the onus is on YOU to either stop recording, or stop talking, not the other party.

    If you continue recording after the objection, it may well be your butt in the sling.
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

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    Quote Originally Posted by amlevin View Post
    You might have trouble convincing a Court of that. The law says specifically that you have to have the consent of ALL parties before recording.



    If you announce that you are recording, and that announcement is also recorded as required by law, then the recording would also then capture anyone's objection to that recording. That in itself would be an indication that the onus is on YOU to either stop recording, or stop talking, not the other party.

    If you continue recording after the objection, it may well be your butt in the sling.
    Dont forget section 3 of RCW 9.73.030

    (3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.


    The undecided problem is if an LEO is detaining you lawfully and you announce you are recording the LEO is trapped he cant simply walk away if he does not wish to be recorded. Now I understand that on duty doing the states business there is no expectatioin of privacy see Flora v State, Townsend v State and Johnson V Sequim. I think this could be ruled on at least by a lower court in a manner that we would not like. I am quite sure the case would be won at a higher level.

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    Regular Member amlevin's Avatar
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    Quote Originally Posted by Orphan View Post
    Dont forget section 3 of RCW 9.73.030

    (3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.


    The undecided problem is if an LEO is detaining you lawfully and you announce you are recording the LEO is trapped he cant simply walk away if he does not wish to be recorded. Now I understand that on duty doing the states business there is no expectatioin of privacy see Flora v State, Townsend v State and Johnson V Sequim. I think this could be ruled on at least by a lower court in a manner that we would not like. I am quite sure the case would be won at a higher level.
    I agree with the point that an announcement has satisfied one part of the law. My point is that once one (private)party has objected, there is no more consent to record their conversation. To continue would be at your own peril.

    The "LEO Recording" issue swings both ways. They don't have to announce to us that their dash cam's are recording us, so why would a court say we can't record our transactions with them?
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    Regular Member John Hardin's Avatar
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    Quote Originally Posted by Orphan View Post
    The undecided problem is if an LEO is detaining you lawfully and you announce you are recording the LEO is trapped he cant simply walk away if he does not wish to be recorded.
    Also remember public vs. private setting - you don't need to announce you're recording if the activity is taking place in public, because privacy does not exist and thus the consent law does not kick in. How often do OC people get harassed by an officer in a non-public setting?

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    Regular Member John Hardin's Avatar
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    Quote Originally Posted by amlevin View Post
    The "LEO Recording" issue swings both ways. They don't have to announce to us that their dash cam's are recording us, so why would a court say we can't record our transactions with them?
    I seem to remember a recent case where a dash cam recording was thrown out of evidence because the officer did not notify the subject that the recording was being made...

    Too lazy to go find it at the moment tho.

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    Quote Originally Posted by John Hardin View Post
    Also remember public vs. private setting - you don't need to announce you're recording if the activity is taking place in public, because privacy does not exist and thus the consent law does not kick in. How often do OC people get harassed by an officer in a non-public setting?
    John have you ever been asked by a LEO to step over here so I can talk to you, I have many times and BTW I never go to them, that starts out public but could end up as a private conversation all the LEO has to say in court is I asked him to step over here so we could talk privately. LEOs do this all the time so that it is he said, LEO said when you get to court. That could be considered a private conversation as soon as you remove yourself to a spot far enough away for others not to be able to overhear. This is one of the reasons you should always ask if your being detained and dont talk to LEOs.

    Having said all that I think we are covered because LEOs are public servants and have no expectation of privacy while at work I believe it is Flora V State that sums it up best.

    One of the things that really bugs me on OCDO is the people that get into trouble that cant afford to defend them selves and then cop a plea thus setting a higher bar for the rest of us to over come. I am not saying dont go out there and OC just be smart about it when you do.

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    Regular Member John Hardin's Avatar
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    Quote Originally Posted by Orphan View Post
    John have you ever been asked by a LEO to step over here so I can talk to you, I have many times and BTW I never go to them, that starts out public but could end up as a private conversation all the LEO has to say in court is I asked him to step over here so we could talk privately. LEOs do this all the time so that it is he said, LEO said when you get to court. That could be considered a private conversation as soon as you remove yourself to a spot far enough away for others not to be able to overhear. This is one of the reasons you should always ask if your being detained and dont talk to LEOs
    I have never been in that situation; thanks for being the voice of experience!

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