Citizens have the right to record police

All over America, police have been arresting people for taking video or making sound recordings of them, even though such arrests are pretty clearly illegal. Usually, the charges are dropped once the case becomes public, and that’s the end of it.

But sometimes things go further, and in two recent cases, they’ve gone far enough to bite back at the police and prosecutors involved. We need more such biting.

Tiawanda Moore made a sexual harassment complaint against a Chicago patrolman. When she was visited by police internal affairs officers who tried to persuade her to drop the charge, she recorded the audio using her BlackBerry. Though the audio reflected rather poorly on the internal affairs officers, the response of the Illinois state attorney was to charge Moore with “wiretapping.”

After the tape was played, the jury took less than an hour to return a verdict of not guilty.

“When we heard that, everyone [on the jury] just shook their head,” one juror said afterward. “If what those two investigators were doing wasn’t criminal, we felt it bordered on criminal, and she had the right to record it.”

Illinois law makes it illegal to record conversations with public officials without their permission. If the officials are law enforcement officers, the penalty can be as much as 15 years in prison. It’s hard to see what purpose such a law could serve, except to protect corrupt officials from exposure.

It’s also hard to see why a prosecutor would bring charges against a citizen who recorded police officers improperly trying to get her to drop charges against a fellow officer she says groped and propositioned her during a domestic-violence call. Perhaps the prosecution was trading favors with the police, or perhaps it was merely incredibly insensitive.

In Massachusetts, the right of citizens to record the police has been upheld by the 1st U.S. Circuit Court of Appeals in the case of Glik v. Cunniffe. Passer-by Simon Glik caught sight of three police officers arresting a young man. He turned on his cellphone and began capturing video.

The police officers objected to being recorded. They arrested Glik and charged him with violating the state’s wiretap law, seizing his camera and memory chip as evidence.

The court held that the right to record police officers in public is a “clearly established” part of the First Amendment’s protections, and held that the officers could be sued for their actions.

In these cases, the courts and juries stood up for the obvious proposition that police officers, doing their jobs on the public dime, don’t have a privacy right against the citizens who pay their salaries. In an era when government feels free to record citizens whenever they’re out in public, this works both ways. Want a surveillance society? Be prepared to live in it.

Of course, the efforts to intimidate citizens via prosecutions and arrests are doomed to fail in the long run, thanks to advances in technology. Every cellphone is a video camera, a still camera and an audio recorder. There are even smartphone apps specifically designed for recording police encounters and uploading them to the Web so that immediately confiscating the phone doesn’t do any good.

You can’t arrest everyone with a camera, especially when you don’t even know they’ve got a camera. But that’s not really the issue. Technology may be winning, but the real problem is that some public employees believe that they are above citizen scrutiny and are prepared to abuse their powers to avoid that scrutiny.

Some have proposed a federal civil-rights law specifically recognizing the right of citizens to record police, and including severe punishments for police and prosecutors who violate that right. Frankly, it seems like a pretty good idea. Until then, however, we need to educate both police and citizens that photography is not a crime, even when those who wield government power, ostensibly on behalf of the citizenry, would rather not be photographed.

Examiner columnist Glenn Reynolds is a law professor at the University of Tennessee-Knoxville, and blogs on Instapundit.

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