Three US states make recording police activity illegal (UPDATED)

Police arrest a man at the amusement park in Coney Island, Brooklyn, NY. Photo by M. Scott Brauer

The Freeman has an interesting look into various states’ efforts to make illegal the recording of police activity. In Illinois, Massachusetts, and Maryland, wiretapping and eavesdropping laws have been used to prosecute individuals who have recorded police activity in a public location.

“[In three states] it is now illegal to record an 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.” -Are Cameras the New Guns?

In one example case, motorcyclist Anthony John Graber III was stopped for reckless driving. A plain-clothes police officer stopped him, jumped out of his car waving a gun and screaming, and issued a ticket. Graber had a video camera mounted in his motorcycle helmet; he posted video of the encounter to youtube. Ten days after the police encounter, after police found the video on youtube, Graber was arrested and charged under felony wiretapping laws, which could result in up to 5 years jail time. In December 2009, street artist Christopher Drew found himself in a similar situation in Chicago. Drew was arrested while selling art on the streets of Chicago as a test of the cities anti-peddler law. During the arrest, police officers found a small audio recorder that was recording and charged Drew under felony wiretapping laws; Drew faces 4-15 years in prison. As the Freeman reports, not everyone in the legal realm agrees with these policies: Massachusetts Supreme Court Chief Justice Margaret Marshall dissented to a 2001 ruling upholding charges stemming from recording police activity, “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….”

For further reading, keep up with Carlos Miller’s Photography is Not a Crime blog. Since his own arrest in 2007 for photographing Miami police (he was acquitted of all charges), Miller has been chronicling cases of First Amendment violations, many of which involve photographers arrested for taking pictures in public places. And take a look at the excellent Photographer’s Rights pamphlet for US photographers.

(via metafilter)

UPDATE: In 2010, charges against Anthony John Graber III were dismissed by a Maryland judge. The ruling “makes it clear that police officers enjoy little expectation of privacy as they perform their duties” and helps narrow the definition of wiretapping in the state’s laws. In the decision, the judge wrote that the situation “took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch, conclude that the troopers had any reasonable expectation of privacy in their conversation with the defendant which society would be prepared to recognize as reasonable.”

58 Responses to “Three US states make recording police activity illegal (UPDATED)”

  1. Christopher Drew

    I am the artist, Chris Drew, and I am presently on a path to bring the Illinois law to a Federal First Amendment test. That is my goal. It is my duty to do this. It is a great risk in the State of Illinois. They are making me their test case to apply this law widely in Illinois to prevent its citizens from critiquing their police. When you think about it, this is a line between freedom and tyranny because if you can’t gather information to back up your story in court and the policeman has more credibility in the court’s eyes, the policeman can lie with comfort and you can not prove them wrong.

    http://www.c-drew.com/blog is my Street Artist Adventures blog where the whole story of my struggle to make Chicago more friendly to artists has led to an even greater fight for freedom in Illinois.
    C. Drew

    • M. Scott Brauer

      Thanks for the comment, C. Drew. We’re watching your case and sending good thoughts.

      • Chris Drew

        Scott,
        E-mail me so I can put you on our weekly e-mail list and keep you informed of my eavesdropping case here in Illinois.
        Sincerely,
        C. Drew

    • Stacey Bell

      Chris, I am Stacey Bell, the brother of Ron Bell the motorist whose beating was captured on Streamwood Officer Mandarinos police cruiser. This officer was recently fired for his actions. However if there was no video evidence, he’d be still on the street patrolling and possibly beating other citizens. If my wife had recorded the incident, she’d be a felon according to these tyrannical prosecutors trying to twist these laws.

      This story caught my attention and I contacted your attorney to speak with him. You’re right on the money when you say this is pushing tyranny by twisting laws to prevent the public from recording police interactions to prevent abuse. They are going after citizens trying to defend themselves instead of promoting positive police enforcement.

      We are going to contact our attorneys as well with Loevy and Loevy to see if we can assist in anyway to prevent this loss of freedom. We are videotaped without consent by the governing bodies all over Chicago on the streets, at traffic stops, etc. This is saying it’s ok for the Govt to do it, but out in public you can’t protect yourself.

      • Rusty Shakelferd

        For starters this wiretapping law is BS. It was never intended for this. It’s typicaly been used in court when their is no warrant for a wire tap on a land line and the police have tapped the phone anyway and then try to use it in court. That’s what it was originaly for. Not for this BS.

        But what I wanted to comment on is how stupid MR Bell is. He obviously has never used lawyer. What on gods green earth makes you think your lawyer is going to want to work on someone else’s case for free? I mean come on, use your head. I don’t care if your using a civil-rights lawyer or not. Bottom line is they want to get paid PERIOD. Not take free cases that their stupid client like yourself takes interest in. Make sense, or is that above your thinking? That’s why your lawyer is going to take a third of your settlement plus expenses. That is the standard fee for a case taken on contingency.

        Way off topic but I could not help stating this after reading Stacey Bells comment.
        BTW, nice feminine name. Week names make week people. And you my friend have the weakest so called man’s name I’ve ever heard.

        • Anonymous

          You are probably a cop . You are certainly an a$$ hole

        • Anonymous

          are you suggesting it is weak to be feminine? you are ignorant and that makes a person far weaker than a name because it is within your own control. your spelling is good proof of you lack of intellect. Also, lawyers do want there money however if a case is media centered (which police recordings are) and growing in scale it could be beneficial for a lawyer’s resume to do pro bono work. Should I explain pro bono to you now?

        • Anonymous

          Rusty Shakelferd sound weak to me and thinks he knows it all!

        • Zach

          Lawyers will hop on this case probono because it could make you famous of epic proportions. If you were the one who convinced 3 states to change their laws/conduct would definitely make you look good. Then you can turn around and use that fame to your advantage by getting bigger cases that = bigger money. This could be conisdered “investing in ones self.”

        • 33

          I would take Stacey over Rusty any day…

        • "Rusty" my ass

          Rusty SHACKLEFORD is an alias used by a character from the TV show King of the Hill.

          The person posting under this name is obviously lacking in one or more areas and feels compelled to overcompensate for it.

        • Mahonri

          “Week” names?

          Even a poor public school should not turn out people this stupid.

    • Nic Summers

      How can I help you? THIS MUST BE STOPPED, without regard.

    • littie stiggers

      Please keep it up…these small victories are the only way we as a people will be able to stop this gross erosion of our constitution..

    • Teresa

      My friend seen 2 cops in Chicago sleeping for 2 hrs. on the job. Told her she should have taken a picture. AND it was in the same district her son was murdered in at 3:30 in the afternoon. No way in hell I wouldn’t have taken a picture. Chicago cops are the MOST CORRUPT…

      • Teresa

        Oh yeah, and they have yet to solve the case, again broad daylight it is now 2012 and this happened in 2009. What is wrong with this picture??

  2. Eli Damon

    When you say that recording the police is illegal in these states are you being hyperbolic? I myself am currently fighting wiretapping charges in Massachusetts for recording a police officer (http://cycles.eli-damon.info/2010/04/02/charged-with-disorderly-conduct-and-unlawful-wiretapping.aspx), and I am certain that doing so is legal as long as it is not done secretly. Many people have referred to Massachusetts as a “two party consent” state but this is incorrect or at least very misleading. Consent is not mentioned in the wiretapping law at all, only secrecy. I think that secret recording should be allowed in public places on First Amendment grounds, but the Massachusetts supreme court has ruled otherwise. I am not entirely certain about the law in Maryland. I think that consent is an issue but is not required in a public place. I don’t know what the Illinois law says. Could you point me to it? As I understand it, the problem is not the law as written; it is the abuse of the law.

  3. becalm

    Why was not George W Bush and the VP arrested and charged with felony for all their wire taps of all of the US citizens????

    It is okay if Republicans wire tap, if the government does it without a court order. It is legal for the police to have a rolling camera on their cars……but you better not be a common citizen………WE NO LONGER HAVE FREEDOM IN THE USA.
    WHAT HAPPENED. WHAT DID OUR FATHERS FIGHT FOR? WE ARE LETTING IT ALL SLIP AWAY.

  4. billy bob

    THE REASON ITS ILLIGAL FOR PEOPLE TO RECORD POLICE IS SO THE PIGS CAN GO AROUND AND BEAT INNOCANT PEOPLE AND DO ALL KINDS OF ILLIGAL ACTIVITY AND PEOPLE CANT RECORD IT BECAUSE IT EXSPOSES THE PIGS CRMINAL ACTIVITY AND PROVES THEY BREAK MORE LAWS THAN THEY ENFORCE. THIS IS STRICTLY A BAND AID LAW TO KEEP THE CORUPTION ALIVE SO PIGS CAN ROB BEAT STEAL AND VANDALIZE THEN THE VICTIM CANT DO A THING BECAUSE THE PIGS WILL SAY YOU DONT HAVE PROOF IT HAPPEND AND THEY GET ANOTHER FREE PASS TO BREAK ALL LAWS FREE AND CAUSE ILLIGAL HAVOC ON THE COMMUNITY IF THEY WAS LAW MEN THEY WOULD NOT HAVE ANYTHING TO HIDE AND WOULDENT EVEN CARE BUT THEY DO BECAUSE THERE WORSE CRIMINALS THAN THE BANK ROBERS OR DOPE DEALERS

    • Robert

      Right on I agree 100% if they are law abiding then they would not have a problem with anyone recording there activitys unless they got something to hide. Apperntly they do

    • Steve

      You are totally spot on truth. no other way to put it Pigs do not want to be recorded. Most of them are crooks themselves. I live in Northbridge Ma. All the cops here are family related. They all drive around town like assholes 70 80 mph down a very narrow main st. If this country falls a part. These cops will have a flied day murdering people to get control. First they will dis-arm people then start shooting

  5. dave

    I will be following this story as well. The police and our government has stepped over the line. We have slowly given up our rights. It is time we got them back.

  6. nikita biddle

    il state law says its illegal to record police rather private or public because I got convicted.I’m still trying to reopen my case.

  7. Jimerson

    Cops are like Caesar’s wife; they must be above reproach. When it becomes ilegal to video a police officer, we become a police state, see http://en.wikipedia.org/wiki/Police_state .
    The police should have nothing to worry about if they are doing their jobs properly.
    This is an abrogation of our rights, and must be fought.

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  9. anonymous

    Holy moly!!! How do I find out if such a thing is proposed in my state? (Or if it exists already??)

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  11. Montag

    Boycott Illinois, Massachusetts and Maryland. You have no rights there. Don’t mail order anything from these states. Don’t visit them. Don’t take a flight with a layover there. And if you live there . . . God help you. Perhaps a domonstration with thousands of people ALL OF WHOM are carrying cameras, etc.

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  13. Thomas

    The charges against Anthony John Graber III regarding the wiretap laws were dismissed by the court in case 12-K-10-647. The judge ruled a police officer in the performance of his duty on a public road should have no expectation of privacy so the charges did not conform with the law.

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  15. Jill Mcclary

    Indeed, i am sure lots of people will have a similar comment.

  16. Anonymous

    Police State

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  18. Anonymous

    Rusty called Stacey ‘week’. He should learn how to spell before he insults someone. The word you were looking for Rusty is ‘weak’.

  19. Me

    Seems to me, if you cannot record them without permission, then they cannot record you without permission (dash cams/field sobriety).

  20. Anonymous

    The police must be really lame believing they can record your every move at a whim. Thus it would seem that they’d applaud an opportunity for an arrest to be filmed as righteous versus what the opposite/norm, is relayed to the public as seen by the way they attack this no film law to the utmost!!!!!!!

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  23. Linda

    I totally agree with you Christopher, the police should not be abobe the law. I hope you win!

  24. Linda

    that was above the law, sorry

  25. Darrin

    Police have become to corrupt and the public should always video them as a matter of public safety

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  28. Dave

    These “laws” have been challenged in court and it is legal to record police officers on-duty.

  29. F.

    I just was pulled over by two police men.
    As I was being issued a ticket I saw several other police cars pull more people over.

    After I received the ticket I drove back to the location where I was stopped 15 min. Later. I was curious of how these people “police” operate.

    There was one behind trees and bushes taking everyones speed at a very popular highway getting into the city. While 3 other police cars pulled the people over. Over and over again.
    It reminded me of a revolving door.
    I took several pictures from a nearby street without realizing there was a cop two cars behind me waiting on me (at a stop sign) while I was taking a few pictures.

    The police man that was behind me was going back to his routine. In a constant frenzy of pulling people over.

    Second day of the month. It looks like they want to meet there quota early!

    There reason of my curiosity of how those people operate is because the company that I work with helps with speeding tickets and much much more.

    Fernandosixtos.legalshield.com

    • SqueakyRat

      What are you complaining about, exactly?

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  32. John

    I can’t believe any state would have a law against Visio taping.this should be transparent to all Americans…there should be no problem any law abiding officer should have with video camera,if anything it should help their case…isn’t that why They have cameras?Unbelievable!!!

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  35. J L

    Thankfully, the US Supreme Court has ruled that police officers have no expectation of privacy in a public stop and that people can record their encounters with the PD. Rightfully so. Way to go 1st Amendment!!

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