By Carlos Miller
In a trend that’s becoming way too common, another cop is wrongly using the illegal wiretapping charge against a man who filmed him against his wishes on a public road.
The latest report comes from Massachusetts where a cyclist named Eli Damon was stopped on March 20 for riding his bike in the middle of the road, something he had already been arrested for on a previous occasion as he explains on his blog.
Damon had a video camera strapped to his helmet, prompting the cop to accuse him of violating the law that forbids people from secretly recording someone’s voice without their consent.
The cop also confiscated his camera, which is an illegal act.
Massachusetts is a two-party consent state, which means it is a crime to secretly tape a conversation unless both parties have consented. The statute doesn’t specify whether this includes an audio recording of an individual who had no expectation of privacy as the Maryland statute states in the incident that occurred earlier this week.
But the Massachusetts statute does specifically state that the recording must have been done in secret, which was not the case here. Damon had the camera strapped to his helmet, which is why the cop noticed it. He also was filming 30 minutes prior to being pulled over, which obviously shows his intent was not to secretly record anybody.
The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.
Furthermore, a Massachusetts judge threw a similar case out of court a couple of years ago when a Boston man was arrested on illegal wiretapping charges for videotaping cops against their wishes.
The judge in that case, Mark H. Summerville, ruled that videotaping police in public was comparable to photography and therefore protected under the First Amendment.
Damon was also charged with disorderly conduct, which we all know is a typical contempt-of-cop charge when police can’t find an actual law to cite.
Illegal wiretapping laws were created to deal with people recording telephone conversations, not people videotaping others in public.
For a breakdown on each state’s law, check out this guide produced by the Reporters Committee for Freedom of the Press.
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21 responses so far ↓
1 Michaelk42 // Apr 10, 2010 at 8:57 PM
It’s like the cops that are dumb enough to pull this stunt think everyone else is just as dumb as they are.
Or maybe he knew the charge wouldn’t hold up but hopes his victim won’t know about it not holding up before.
Aside from Officer Mitchell Kuc’s theft of the camera (and evidence,) he seems to be one of those cops that likes to give cyclists a hard time for taking the lane. Perhaps out of some delusion that he’s some sort of expert on bicycle safety.
Michaelk42´s last blog ..Oh snap, Courteous Mass
2 Simon Jester // Apr 10, 2010 at 8:59 PM
Check again Carlos. There ARE Federal laws about wiretapping. The site you cited mentions that specifically.
3 Carlos Miller // Apr 10, 2010 at 9:09 PM
OK, I removed the federal law reference, even though I am still not clear on what it is.
4 Michaelk42 // Apr 10, 2010 at 9:14 PM
I don’t think the federal comes into play unless the cop’s in one state and the guy recording is in another.
So if they were on opposite sides of a state line…
Michaelk42´s last blog ..Oh snap, Courteous Mass
5 Simon Jester // Apr 10, 2010 at 9:15 PM
Here, check these out.
http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511—-000-.html
http://www.fcc.gov/cgb/consumerfacts/interception.html
Funny thing is, that Federal wiretapping laws require a WIRE.
6 Michaelk42 // Apr 10, 2010 at 9:20 PM
So given the intra- and not interstate nature of the situation and the fact that the federal law isn’t applicable in any case, what we have is a cop using “federal law!” because he likes to sound important and he wants to try to intimidate people.
Michaelk42´s last blog ..Oh snap, Courteous Mass
7 glenn // Apr 10, 2010 at 10:33 PM
that’s is the difference between here in the Philippines and there in America
8 Hazy // Apr 11, 2010 at 3:54 AM
Wiretapping is specifically for telephone conversations. I’m sick of the wiretapping law being used in this manner.
9 Matt B // Apr 11, 2010 at 4:00 PM
What’s funny is that they never have a problem being recorded from their cruisers, so what’s the problem?
10 np // Apr 11, 2010 at 5:04 PM
it does look like it is illegal in MA to secretly record the police, see Commonwealth v. Hyde (2001) http://scholar.google.com/scholar_case?case=10186151351863998941 . (of course, this is asinine.)
but you’re right, damon shouldn’t be charged. he lacked the intent to record in secret, where the law requires that a person must “willfully” do so. also, since the officer was aware, there was no secret recording in fact.
11 Scott Smith // Apr 11, 2010 at 8:02 PM
LOL, I almost squirted Pepsi out of my nose when I read your comment.
It is good to know, however, that my telegrams are safe.
12 Rusty Carr // Apr 11, 2010 at 11:36 PM
Is “phukk’npig” one word or two?
13 Tom // Apr 12, 2010 at 12:06 AM
NP,
Check the last paragraph of the Hyde…
“The problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.[12] Had he done so, his recording would not have been secret, and so would not have violated G. L. c. 272, § 99. See Commonwealth v. Jackson, supra at 507 (no “interception” when defendant was aware his voice was being recorded). Secret tape recording by private individuals has been unequivocally banned, and, unless and until the Legislature changes the statute, what was done here cannot be done lawfully.”
Overall that decision is terrible because affords the average citizen no protection against abuse by police. Remember Lester Eugene Siler
http://www.wate.com/global/story.asp?S=3568680
Audio tape reveals abuse during Campbell Co. officers’ interrogation
JACKSBORO (WATE) — Friday will be the one year anniversary of when five Campbell County deputies beat and tortured Lester Siler, a convicted drug dealer.
The lawmen were serving an arrest warrant on Lester Eugene Siler in July 2004. Siler ran when officers arrived but was caught.
According to court documents, Siler was beaten, pushed into an overflowing toilet, hooked to a battery charger and hit with a gun to coerce him into signing a consent form to search his home.
McClellan fired the deputies after hearing the recording.
Former deputies William Carroll, Samuel Franklin, David Webber, Shayne Green and Joshua Monday later pleaded guilty for using excessive force. They will be sentenced next week.
Siler filed a lawsuit Thursday in federal District Court at Knoxville against the five former officers. Sheriff Ron McClellan and Chief Deputy Charles Scott are also named in the suit, which claims they instigated the incident.
A 40-minute audio tape was released Thursday of a recording that captured the violence of that incident. Siler’s wife secretly made the recording before she was ordered to leave their home by deputies.
Repeatedly, officers are heard asking Siler to sign a consent-to-search form so they can search his house for drugs.
Edited portions of the transcript detail constant badgering, crude language and indicate Siler was in pain during the interrogation.
Officer Webber: You hear what I told you? I told you not to be talking. Didn’t I tell you not to talk? That’s just the (bleep) beginning. This (bleep – bleep) right here, he loves seeing blood.
Siler: (moans)
Officer Webber: He loves it. He loves seeing blood. You’re talking too much. You’re talking too much. He (bleep) loves seeing blood. He’ll beat your (bleep) and lick it off you.
Officer Webber: I don’t want your help. I don’t want your help. I want you to sign that form because you’re the one we want. We got you. If you don’t sign it, you probably won’t walk out of here. We’ll have to call a (bleep) ambulance to haul your (bleep) out of here. Is there any part of that you don’t understand?
Officer Carroll: Sign the (bleep) paper and we’ll leave you alone.
Siler: (moaning)
Officer Webber: Why don’t you want to sign the form, Eugene? You got a bunch of dope here, buddy? Huh?
Officer: You won’t sign it.
Siler: (mumbles) Ahhhh!
Officer: You won’t sign it? You won’t sign it? Yes or no? Do you want to sign it?
Siler: Don’t!
Officer: Yes or no?
Siler’s attorney says his client was hit several times on his face and body during the incident.
The tape was released as the deputies head to court for their sentencing hearings next week.
As for the civil suit filed in Siler’s name, it’s against the deputies, Campbell County itself, and Sheriff Ron McClellan for more than $19 million.
14 Guy Freeman // Apr 12, 2010 at 12:58 PM
Freeman Z was convicted under the wiretapping law here in Mass. He posted all about it at http://www.brianharer.com/
Guy Freeman´s last blog ..Massachusetts State Police – Northampton
15 Guy Freeman // Apr 12, 2010 at 1:02 PM
My neighbor recorded the police during a traffic stop. http://video.google.com/videoplay?docid=7469496178497183693&q=source%3A008683900269451200969&hl=en
Guy Freeman´s last blog ..Massachusetts State Police – Northampton
16 Guy Freeman // Apr 12, 2010 at 1:06 PM
My neighbor recorded the police during a traffic stop. Its a pretty interesting video. http://video.google.com/videoplay?docid=7469496178497183693&q=source%3A008683900269451200969&hl=en
Guy Freeman´s last blog ..Massachusetts State Police – Northampton
17 Rusty Carr // Apr 12, 2010 at 3:14 PM
And I’ll bet if you look on the back fender of their patrol cars you’ll see “To Protect and Serve.” Maybe it’d be more appropriate if it said “To Protect and Serve Ourselves.”
18 Wicked Feleena // Apr 13, 2010 at 3:14 AM
http://autos.aol.com/article/cops-on-video/
Here’s an article about whether it’s a good idea to videotape a traffic stop.
19 Wicked Feleena // Apr 13, 2010 at 3:19 AM
Although I’ve never been pulled over, I think I should get one of these in case I ever do.
http://www.cameravan.com/index2.html
20 Michaelk42 // Apr 13, 2010 at 4:35 AM
Wait, wait… sitting in that article all by itself:
“Zielinski explained that some cameras have been known to conceal guns.”
I don’t believe the author of that article let that one by without a followup question; like “When has that ever happened?” or “WTF movie did you see that in?”
But no, he just un-critically accepts that nonsense and rolls right along.
Michaelk42´s last blog ..Oh snap, Courteous Mass
21 Danielle // Aug 4, 2010 at 11:21 AM
I know this is kind of an old argument, but “illegal wiretapping” boils down to “reasonable expectation of privacy.” A police officer acting in an official capacity, on the side of the road during a traffic stop, has no reasonable expectation of privacy. See the Graber case in FL for similar precedent.
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