The Expanding Trend of Criminalizing the Recording of Police Abuse

Joseph Cucco, Albany Government Law Review Member

In 1991, a private citizen videotaped Los Angeles police officers beating Rodney King, forever changing the dynamic of citizen versus police officer.[1] Since then, technology has advanced to the stage where hand-held gadgets, such as cell phones and Blackberrys, are ubiquitous and almost every citizen is a potential videographer.  This has made cell phones and other portable recording devices an effective new weapon against police brutality and the abuse of power.  In response, police have struck back with a weapon of their own: state wiretapping and electronic surveillance laws, originally enacted to protect people from invasion of privacy.  With increasing frequency, authorities of several states are misapplying these laws to threaten and even arrest citizens who video police officers while performing their duties in plain view of the public.

One such instance occurred on March 5, 2010 when Anthony Graber, a sergeant in the Maryland National Guard, was riding his motorcycle down the highway at excessive speeds, admittedly showboating and performing dangerous stunts on a Maryland highway.[2] To record and share his antics, Graber was using a conspicuous helmet-mounted camera and continued to record as he was pulled over by a plain-clothes state trooper driving an unmarked car.[3] The plain clothed trooper cut him off, jumped out of his vehicle brandishing a weapon, and ordered Graber off the motorcycle, all before identifying himself as a state trooper.[4] Graber was cited for speeding and let go.

That might have been the end of the encounter—until Graber posted his video on YouTube,[5] including the portion with the atypical stop by the obviously aggravated state trooper.  The officer learned of the video on March 15, 2010 and obtained a search warrant for the video[6] and Graber’s home computers, citing violation of state wiretapping laws.[7] Graber was also charged with possession of a “device primarily useful for the purpose of the surreptitious interception of oral communications”.[8] Graber faced up to 16 years in prison, along with loss of his National Guard commission, if convicted of the felonies.[9] Ultimately, on September 10, 2010, a Harford County Circuit Court judge ruled “that police have no expectation of privacy in their public, on-the-job communications” and that under the prosecution’s view, virtually every type of recording device would be rendered illegal.[10]

Unfortunately, what happened to Graber is not an isolated incident.  In 2007, attorney Simon Glik was walking down a Boston street when he noticed three police officers “struggling to extract a plastic bag from a teenager’s mouth.”[11] Feeling the force was excessive, he began to record the incident with his cell phone.[12] He was arrested under the Massachusetts Anti-Wiretapping Statute[13] for illegal electronic surveillance, and his cell phone was seized. Technically, recording visual images alone does not violate Massachusetts’s statute.[14] However, most recording devices, such as that found in Glik’s phone, are equipped with both audio and visual recording capabilities and therefore fall under the statutory definition of a prohibited “interception.”[15] In another Massachusetts case, John Surmacz was arrested for illegal surveillance after recording police breaking up a holiday party in Brighton.[16] Both cases were eventually dismissed because the statute specifically states that the recording must be done “secretly”.[17]

The results were different in a case appealed to the Supreme Judicial Court of Massachusetts, Commonwealth v. Hyde,[18] in 2001.  Michael Hyde, a 31-year-old musician, was stopped by police for a traffic violation and began secretly recording police when the encounter “turned testy.”[19] The police officers did not know they were being recorded until Hyde used the recording to bolster the harassment complaint he filed against them.  Hyde was then charged with illegal wiretapping and convicted.[20] Because the recording was done secretly, the appellate court upheld his conviction.[21]

Whether police officers, while performing their duties in public, have a reasonable expectation of privacy that extends to prohibiting audio recordings of stops and arrests is currently being litigated in Illinois federal court.[22] American Civil Liberties Union of Illinois v. Alvarez stems from the arrest of an artist who wanted to challenge the constitutionality, not of the wiretapping statute, but of the requirement that street artists buy a peddler’s license.[23] Chris Drew’s intention was to get arrested in order to test the Chicago ordinance; he got more than he bargained for when he was charged with a felony under Illinois law after police found a small recording device in his belongings.[24] Because the Illinois statute requires consent from all parties to a conversation before it can be recorded, Drew faces a possible sentence of four to fifteen years for recording police at the protest.[25]

The ACLU suit, which cites the Drew case, seeks “declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201 et seq.”[26] The plaintiffs allege that the Illinois Eavesdropping Act, “as applied to the audio recording of police officers” without their consent, while performing their public duties in public places, and while “the officers are speaking at a volume audible to the unassisted human ear”, violates the First Amendment to the U.S. Constitution.[27] The ACLU notes that the Illinois Eavesdropping Act exempts recordings made by police during traffic stops, which protects both civilians and police officers from possible false testimony about what occurred.[28]

The complaint echoes the position of others opposed to the criminalization of citizens recording conversations with police—“[t]here is no constitutionally valid basis for allowing police to make such audio recordings, while criminalizing the conduct of civilians who do so.”[29] The ACLU maintains that police have no reasonable expectation of privacy in these situations.[30] This view has been upheld in other courts, such as the New Jersey Appellate Court, which ruled that police officers have a diminished expectation of privacy because they hold a position of trust.[31]

Arrests for recording police action have come primarily from Maryland, Massachusetts, and Illinois.  This is because they belong to only a handful of states that require all parties of a private conversation to consent to recording of conversations, whereas both federal law[32] and the majority of states require only one-party consent.[33] New York, for example, has a right-to-privacy statute which prohibits “the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party” and makes this type of eavesdropping a felony.[34] New York City is, of course, a popular venue for filmmaking and television location shooting, and is therefore no stranger to the issue of recording what takes place on the street.  The city has specific ordinances regulating the issuance of permits for filming or photography on city property, but makes exceptions for shoots of limited size and duration, as well as parades, rallies, protests, or demonstrations, “except when using vehicles or equipment other than a handheld device or single tripod.”[35]

In fact, the NYPD went so far as to invite the public to send them videos of criminal behavior, including police misconduct, after a police officer was videotaped purposely knocking a man off his bicycle during the Critical Mass bike ride, a monthly cycling event.[36] The police officer claimed he was merely blocking the cyclist, who was trying to collide with him.[37] It would have been nearly impossible for the cyclist to prove otherwise, had it not been for an amateur video[38] taken by a bystander, which plainly showed the police officer to be the aggressor.  The video, which garnered more than 3 million hits on YouTube alone, resulted in the officer being stripped of his badge and convicted of filing a false report.[39] The NYPD’s invitation to the public to upload such videos directly to their site is unlikely to eliminate the posting of similar controversial footage on YouTube and other public venues.

Until a case like ACLU v. Alvarez makes its way to the Supreme Court, resulting in a finding that such state laws are unconstitutional, citizens in states with two-party consent laws will continue to be denied their best defense against police abuses.[40] Police departments began using their own recording devices because they knew that it was the best way to reveal the facts in a “he said/she said” situation, and could exonerate an officer who was wrongly accused of misconduct.  Police spokesmen have claimed that citizens with recording devices could inhibit them from performing their jobs.[41] But as a recent Chicago Tribune editorial pointed out, “the only cops likely to be inhibited are those who do their jobs in an illegal fashion.”[42]


[1] Adam Cohen, Should Videotaping the Police Really Be a Crime?, TIME, Aug. 4, 2010, available at http://www.time.com/time/nation/article/0,8599,2008566,00.html.

[2] Id.

[3] Id.

[4] Id.

[5] See Cop Pulls Out Gun on Motorcyclist, YouTube (June 5, 2010), http://www.youtube.com/watch?v=RK5bMSyJCsg.

[6] Cohen, supra note 1.

[7] Md. Ann. Code, Cts & Jud. Proc. § 10–402 (1978).

[8] Annys Shin, Charges Dropped in Cyclist, Trooper Taping, Wash. Post, Sept. 27, 2010, available at http://voices.washingtonpost.com/local-breaking-news/maryland/charges-dropped-in-cyclist-tro.html.

[9] Id.

[10] Id.

[11] Daniel Rowinski, Police Fight Cellphone Recordings, Boston Globe, Jan. 12, 2010, available at http://www.boston.com/news/local/massachusetts/articles/2010/01/12/police_fight_cellphone_recordings/.

[12] Id.

[13] Mass. Gen. Laws Ch. 272, § 99 (2008).

[14] Lisa A. Skehill, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981, 984 (2009).

[15] Mass. Gen. Laws ch. 272, § 99 (B)(4).

[16] Rowinski, supra note 11.

[17] Mass. Gen. Laws ch. 272, § 99 (B)(4).

[18] Commonwealth v. Hyde, 434 Mass. 594 (Mass., 2001).

[19] See Rowinski, supra note 11.

[20] Id.

[21] Id.

[22] ACLU of Ill. v. Alvarez, Complaint Filed Aug. 19, 2010, (Case No. 1:10-cv-05235), available at http://www.art-teez.org/free-speech-movement/100819-aclu-v-alvarez.pdf.

[23] Id.;Deanna Isaacs, The Accidental Poster Child, Chi. Reader, Sept. 23, 2010, available at http://www.chicagoreader.com/chicago/chris-drew-art-peddling-law-arrest-illinois-eavesdropping-act-aclu/Content?oid=2448923.

[24] Cheryl Corley, Often, You Can Film Cops; Just Don’t Record Them, N.P.R., Sept. 1, 2010, available at http://www.npr.org/templates/story/story.php?storyId=129553748.

[25] Isaacs, supra note 23.

[26] ACLU of Ill. v. Alvarez, Complaint Filed Aug. 19, 2010, (Case No. 1:10-cv-05235), available at http://www.art-teez.org/free-speech-movement/100819-aclu-v-alvarez.pdf.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] See Hornberger v. Am. Broad. Co., 799 A.2d 566 (N.J. Super. Ct. App. Div. 2002).

[32] 18 U.S.C. § 2511(2)(d) (2008).

[33] Those states are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. See National Conference of State Legislatures, Electronic Surveillance Laws, http://www.ncsl.org/IssuesResearch/TelecommunicationsInformationTechnology/ElectronicSurveillanceLaws/tabid/13492/Default.aspx (last visited October 31, 2010).

[34] N.Y. Penal Law §§ 250.00, 250.05 (2) (2003).

[35] New York, N.Y., Charter ch. 43, § 9-01(b) (2008).

[36] Tim Conneally, Police: Skip YouTube and Upload Eyewitness Videos to Us, BetaNews.com, Aug. 10, 2008, http://www.betanews.com/article/Police-Skip-YouTube-and-upload-eyewitness-videos-to-us/1217619257.

[37] Id.

[38] See Critical Mass Bicyclist Assaulted by NYPD, (July 27, 2008), http://www.youtube.com/watch?v=oUkiyBVytRQ&feature=player_embedded.

[39] Cohen, supra note 1.

[40] Isaacs, supra note 23.

[41] See Rowinski, supra note 11.

[42] Cops on Camera: Police Record Citizens. Why not the Other Way Around? Chi. Trib., Aug. 27, 2010, available at http://articles.chicagotribune.com/2010-08-27/news/ct-edit-recording-20100827_1_police-officers-chicago-police-vehicles-law-enforcement.

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2 Comments

Filed under Constitutional Law, Criminal Law, Human Rights

2 responses to “The Expanding Trend of Criminalizing the Recording of Police Abuse

  1. Pingback: Got A Careless Driving Ticket in my SRT-4 - Page 8 - SRT Forums - SRT4, SRT6, SRT8, SRT10 & Dodge Forum

  2. joe

    Well in the case of that chicago street peddler,15 years is a bit stiff for peddling isnt it? Most murderers dont even get that.

    Oh,the gestapo was just doing its job. The KGB was just doing its job.

    And its not illegal to film cops. When they dont get filmed they get away with their crimes.

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