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Federal Appeals Court rules recording of police is Constitutionally protected

John Hardin

John Hardin

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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/court-says-state-law-banning-recording-police-offi

http://www.ca1.uscourts.gov/pdf.opinions/10-1764P-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...
 
Venator

Venator

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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 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.").​
 
J

Jeff Hayes

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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.
 
J

JimMullinsWVCDL

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Orphan said:
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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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."
 
J

Jeff Hayes

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WVCDL said:
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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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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oneeyeross

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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?
 
J

Jeff Hayes

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oneeyeross said:
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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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.
 
sudden valley gunner

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Orphan said:
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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I also like Johnson vs. Sequim
 
FMCDH

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Orphan said:
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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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?
 
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sudden valley gunner

sudden valley gunner

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FMCDH said:
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?
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That includes phone calls, as long as the notification is on the recording itself, if I remember correctly.
 
J

Jeff Hayes

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FMCDH said:
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?
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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.
 
amlevin

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sudden valley gunner said:
That includes phone calls, as long as the notification is on the recording itself, if I remember correctly.
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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.
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RCW9.73.030
 
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amlevin

amlevin

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FMCDH said:
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?
Click to expand...

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.
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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.
 
J

Jeff Hayes

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amlevin said:
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.
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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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