Avoiding crime scene confrontations

Michael Felletter was a Penn State student journalist, on assignment photographing a post-football-victory celebration that turned into a riot, when State College, Pa., Police officers arrested him and charged him with two criminal offenses.[1]

Although Felleter ultimately was able to avoid prosecution on the charges of failure to disperse and disorderly conduct, the case hung over him for nearly a year until a judge dismissed the charges in July 2009.[2]

Felletter is just one of an alarming number of journalists who have faced threats, intimidation or arrest for photographing or videotaping the police.[3] In April 2010, Ohio State University police detained and charged a photographer for The Lantern, alleging he got too close to the scene of a runaway cow on campus; the charges soon were dropped.[4] And in California, a student photographer at Chaffey College was charged with two misdemeanor offenses for photographing the scene of a medical emergency on campus after police ordered him to leave.[5] Police did not pursue the charges.

Whether involving student journalists, professional journalists, or just citizen bystanders, prosecutions of those who record law enforcement activity appear to be on the rise. And even if charges ultimately are dismissed, the embarrassment of a criminal arrest record and the intimidating effect of a threat of prosecution can chill journalists into shying away from crime scenes and disasters.

Student journalists who report on police activity must be aware of the legality or potential illegality of their actions when they seek to capture images and sounds of police in action. This article addresses the possible legal ramifications of photographing and videotaping police officers in public places.

Photographing police in public

The Supreme Court has recognized some First Amendment protection for news gathering,[6] although the dimensions of that protection are not precisely defined. Some lower federal courts have recognized a First Amendment right to photograph law enforcement officials or other matters of public interest, especially when there is a “communicative purpose” to the photography.[7]

However, even if there is a First Amendment right to photograph and videotape law enforcement officers, this right is not absolute and is subject to reasonable time, place, and manner restrictions.[8] As a result, photography that is judged to interfere with police operations may be prohibited under state law.

For example, in many states, police can close accident and disaster scenes to the public, including members of the press.[9] Although two states, California and Ohio, recognize a special right of access to accident and disaster scenes by the press,[10] in the absence of such a statute, the press has no First Amendment right of access to crime or disaster scenes beyond that of the general public.[11] As a result, states can criminalize trespassing upon closed accident, disaster, or crime scenes, and an individual’s failure to obey such closures may result in criminal prosecution. States may also enforce traffic laws against photographers who violate such laws while photographing an accident or disaster scene.

Moreover, state laws prohibiting disorderly conduct, failure to obey a police order, disturbing the peace, and other similar statutes can be used to prosecute photographers who interfere with police operations. For example, in State v. Lashinsky,[12] the New Jersey Supreme Court upheld the conviction of a press photographer for disorderly conduct when the photographer took pictures of an accident scene on a highway, ignored a police officer’s repeated requests to leave the scene, and argued with a police officer.

The key factor to consider in determining whether a photographer has violated statutes prohibiting disorderly conduct, failure to obey police orders, and other similar state laws appears to be whether a court considers the police officer’s request in an individual case “reasonable.” InLashinsky, the court held that the officer’s order to leave the scene was reasonable in light of the danger that a fire might break out, the need to clear the way for an ambulance and other emergency vehicles, the presence of personal property and valuables strewn about the scene, and the officer’s need to control the large crowd that had gathered at the accident.

However, in a comparable case in New Hampshire,[13] a federal judge held that a police officer had violated a photographer’s First Amendment rights by arresting him for disturbing the peace after he obeyed instructions to move away from an accident scene, but continued photographing it from the second?story window of a nearby house. In the court’s view, the photographer had complied with all reasonable police instructions, and further limits on his ability to photograph the accident were unreasonable.

In addition to state laws against disorderly conduct and interference with law enforcement, state statutes prohibiting harassment and stalking have also been used to prosecute photographers who take pictures of police officers.[14] These cases illustrate that while photographers generally have the right to photograph on?duty police officers in public, state law nevertheless prohibits tactics that amount to stalking and harassment.

In sum, although some courts have recognized that the First Amendment is applicable to photographing police officers or other matters of public interest, there is no absolute right to photograph police. Actions that constitute disorderly conduct, refusal to follow lawful police directives, harassment, stalking, trespassing, or other similar crimes may result in criminal prosecution.

Videotaping on?duty police in public

In addition to photographing police officers, student journalists may want to videotape law enforcement officials as they work. If videotaping or other recording of a police officer includes audio recording, you should consider whether your state’s wiretapping law prohibits your actions.

Wiretapping statutes prohibit recording conversations or communications, depending on whether some or all of the parties to the conversation consent. These laws do not apply to the imagesmade when you record video; as a result, if you are filming without recording sound, wiretapping laws are not applicable. However, your state’s wiretapping law may cover any audio recording you make by videotaping law enforcement officers. In general, there are a few factors to consider in determining whether your recording falls under bans on wiretapping.

One-party v. two-party consent

Wiretapping laws are generally classified as either one?party consent laws or two?party consent laws.

In states with one?party consent laws, as long as one party to the conversation consents to the recording, it does not violate the wiretapping statute to record the conversation, even if the other party does not consent to the recording (or does not even know the recording is being made). Therefore, in states with one?party consent laws, as long as you are a party to the conversation with a police officer, you can record the conversation without the officer’s consent. Most states have one?party consent wiretapping laws, and the federal wiretapping statute is a one?party consent law.[15]

In contrast, in states with two?party consent laws, all parties to the conversation must consent to the recording for it to be legal to record the conversation. (Despite the phrase “two?party consent,” this means that if there are more than two parties to the conversation, all parties must consent before you can record.) California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington are all two?party consent states.[16]

There are exceptions to the statutes in many states that allow the recording of conversations where no party consents (in one?party consent states) or where only one party consents (in two?party consent states). More specifically, courts in some two?party consent states have held that the wiretapping laws in those states do not apply to recordings of on?duty police officers.

Recording without consent

Of course, in the typical newsgathering scenario, the journalist is simply an observer to an interaction between police and members of the public, meaning that the journalist is not a “party” to the conversation. Even so, some state statutes still expressly allow for the recording of conversations taking place in public, even if no party gives consent.

For example, in several states, wiretapping laws apply only to electronic conversations and not face-to-face ones.[17] In other states, there is no violation if the recording is done openly and not concealed.[18]

In a half-dozen states, wiretapping acts apply only to those not present at a conversation; as a result, if you are present at the conversation, you can record it regardless of the consent of any party. A few states require that the person doing the recording be visibly present, but others do not make that distinction.[19]

Finally, in some states, courts have interpreted certain actions by parties to conversations as implied consent to the recording of those conversations.[20] For example, the Illinois Supreme Court has interpreted Illinois’ wiretapping act not to apply when the party being recorded knows he is being recorded and nonetheless continues his conversation, as such behavior suggests implied consent to the recording.[21] In Washington, the wiretapping act specifies that consent to recording “shall be considered obtained” when one party announces to all the other parties that the conversation is about to be recorded.[22]

Exceptions for recording police officers

Even if you are operating in a two?party consent state and none of the general exceptions discussed above apply, it may be legal to record communications without the consent of all parties involved if the communication is not one intended to be private or confidential. Some state courts have relied on the requirement that a communication be private or confidential to hold that the state’s wiretapping act does not apply to the recording of on?duty police officers.

The legality of recording on?duty police officers has been recognized by at least some courts in Maryland, Pennsylvania, and Washington.

The legality of recording on?duty police officers is most clear in Washington state. The Supreme Court of Washington has repeatedly held that there is no expectation of privacy in a police officer’s remarks to a person stopped for a violation.[23] Therefore, recording the encounter does not violate state law against intercepting conversations.

In Maryland, a court threw out criminal charges in September 2010 against a motorist who secretly recorded – and then posted on YouTube – both video and audio of a police officer’s conduct during a traffic stop. The judge decided that the Maryland wiretapping law did not apply, because the traffic stop took place “on a public highway in full view of the public,” and therefore “was not a private conversation as intended by the statute.”

In Pennsylvania, a federal appeals court recently ruled that “secretly recording a police officer in the performance of his duties did not violate the [Pennsylvania] Wiretap Act.”[24] This ruling appears to clarify the murky state of the law in Pennsylvania, which was muddied by a 1996 state-court ruling that motorists who secretly recorded a conversation with police during a traffic stop could be guilty of wiretapping.[25]

Unlike Maryland, Pennsylvania, and Washington, Massachusetts and Illinois have specified that their state wiretapping statutes prohibit recording on?duty police officers.

In Illinois, the state’s wiretapping statute prohibits the recording of a conversation without the consent of all parties, with conversation defined as “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.”[26] By defining “conversation” in this way, the Illinois legislature “extended the coverage of the eavesdropping statute to all conversations, regardless of whether they were intended to be private.”[27] As a result, it is irrelevant if communications by on?duty police officers are not confidential or private; the Illinois wiretapping statute nevertheless prohibits the recording of such communications without the officer’s consent.

In Massachusetts, the wiretapping act provides no exception for recording on?duty police officers because of the non?confidential nature of their communications. In Commonwealth v. Hyde, the Supreme Judicial Court of Massachusetts upheld the conviction of a motorist who secretly recorded police officers during a routine traffic stop.[28] In Hyde, a motorist secretly activated a hand?held tape recorder at the beginning of a traffic stop and recorded the entire encounter, which quickly turned hostile. When the motorist filed a complaint against the officers – using the recording as evidence – he was charged under the Massachusetts wiretapping statute for recording the officers without consent.

The Massachusetts Supreme Judicial Court upheld the wiretapping conviction, holding that the Massachusetts wiretapping statute “lists no exception for a private individual who secretly records the oral communications of public officials.” Unlike other states, the Massachusetts wiretapping act contains no privacy or confidentiality requirement in its definition of “oral communication.”[29] Thus, the court held that the Massachusetts legislature intended the law to “strictly prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge.”

More recently, the Appeals Court of Massachusetts upheld the conviction of another man under the state wiretapping act when he spoke with police officers in a subway station during a political rally and secretly recorded the conversation using a microphone hidden in his jacket.[30]

A case currently pending before the First Circuit, Glik v. Cunniffe,[31] may address the constitutionality of Massachusetts’s wiretapping act as interpreted by Hyde and, specifically, whether the First Amendment prohibits states from criminalizing the recording of communications that are not intended to be private or confidential.

In the remaining two?party consent states, it is unclear whether the state wiretapping law prohibits the recording of on?duty police officers. The state wiretapping laws in California, Florida, Michigan, and New Hampshire[32] suggest that recording a conversation is not “wiretapping” unless it is private or confidential. Because courts in these states have not ruled specifically on the issue of recording on?duty police officers, its legality under the state wiretapping statutes remains murky.

Disclosure of Illegal Recordings

In addition to prohibiting audio recording of others without their consent, a few states also prohibit the disclosure of those audio recordings when you know that recording was obtained in violation of the state’s wiretapping act, even when you did not make the recording yourself.[33] To the extent that these laws prohibit journalists from disclosing audio recordings regarding an issue of public significance that they have lawfully obtained (e.g., from a source in an investigation), they are probably unconstitutional.[34]

As this article illustrates, wiretapping laws and other state statutes can pose obstacles for student journalists who attempt to photograph or videotape police officers. While there is likely a First Amendment right to film and photograph on?duty law enforcement officials, this right can be limited by state laws on disorderly conduct, disturbing the peace, harassment, stalking, trespassing, wiretapping, and other criminal conduct. Knowledge of the precise contours of the law in your state equips you to assert your right to photograph and videotape police officers and thereby safeguard the public’s right to monitor law enforcement officials in their communities.

Attorney Caitlin Vogus, a 2011 graduate of Harvard Law School, is a member of the SPLC’s Attorney Referral Network.

Endnotes

1. Heather Schmelzlen, Photographer receives misdemeanor charges, The Daily Collegian, Nov. 7, 2008, available athttp://www.collegian.psu.edu/archive/2008/11/07/photographer_receives_misdemea.aspx.
2. Catherine MacDonald, “All charges dismissed against Penn State photographer,” SPLC News Flash, July 27, 2009, available at http://www.splc.org/news/newsflash.asp?id=1939.
3. For more examples of journalists arrested for photographing police or other public events, see Carlos Miller, Photography is not a Crime, http://www.pixiq.com/contributors/248 (last visited June 29, 2011). See also Daniel Rowinski, Police Fight Cellphone Recordings, Boston Globe, Jan. 12, 2010, at A1, available athttp://www.boston.com/news/local/massachusetts/articles/2010/01/12/police_fight_cellphone_recordings/?page=full (citing examples of people arrested in Massachusetts for openly recording police on their cell phones).
4. Katie Maloney, “OSU police close case on Lantern photographer detained during cow escape,” SPLC News Flash, May 6, 2010, available at http://www.splc.org/news/newsflash.asp?id=2086.
5. Caitlin Byrnes, “Calif. photographer faces charges after taking pictures outside newsroom,” SPLC News Flash, Oct. 1, 2010, available at http://www.splc.org/news/newsflash.asp?id=2147.
6. Branzburg v. Hayes, 408 U.S. 665, 707 (1972).
7. See Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (stating that plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); Iacobucci v. Boulter, 193 F.3d 14, 24 (1st Cir. 1999) (recognizing a constitutional right to videotape a public meeting); Fordyce v. Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing a “First Amendment right to film matters of public interest”); Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (recognizing a First Amendment interest in recording a public meeting); Pomykacz v. Borough of W. Wildwood, 438 F. Supp. 2d 504, 513 n.14 (D.N.J. 2006) (holding that the First Amendment protects photographing a police officer in connection with a citizen’s political activism); Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005) (stating that “there can be no doubt that the free speech clause of the Constitution protected [the plaintiff] as he videotaped the defendant[?police officers]”); Demarest v. Athol/Orange Comm. Television, Inc., 188 F. Supp. 2d 82, 94 (D. Mass. 2002) (stating that plaintiffs had a “constitutionally protected right to record matters of public interest”); see also Gilles v. Davis, 427 F.3d 197, 212, n.14 (3d Cir. 2005) (stating that “photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection” and that “videotaping or photographing police in the performance of their duties on public propertymay be a protected activity”) (emphasis added); but see Kelly v. Borough of Carlisle, 622 F.3d 248, 262?63 (3d Cir. 2010) (finding that the right to videotape police officers was not clearly established in the context of “inherently dangerous” traffic stops).
8. Smith, 212 F.3d at 1333.
9. See, e.g., N.Y. Veh. & Traf. Law § 1602 (Consol. 2011).
10. Cal. Penal Code § 409.5(d) (Deering 2010); Ohio Rev. Code Ann. § 2917.13(B) (LexisNexis 2011). The exception for members of the press in the California statute does not extend to crime scenes. Leiserson v. San Diego, 229 Cal. Rptr. 22, 24 (Cal. App. 1986).
11. Branzburg, 408 U.S. at 684?85.
12. 404 A.2d 1121 (N.J. 1979).
13. Connell v. Hudson, 733 F. Supp. 465 (D.N.H. 1990).
14. See, e.g., Gravolet v. Tassin, No. 08-3646, 2009 U.S. Dist. LEXIS 45876 (E.D. La. June 2, 2009) (throwing out photographer’s lawsuit against government officials challenging his arrest for stalking, because he appeared by following and filming a police officer to be attempting to intimidate the officer, who had previously arrested him on a drunk-driving charge); Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa. 2005) (describing harassment convictions – one of which was thrown out on appeal – of a photographer who repeatedly refused orders to stop filming officers who were conducting truck inspections along a highway).
15. 18 U.S.C. § 2511(2)(d); Reporters’ Committee for Freedom of the Press, Tape Recording Laws at a Glance, Can we tape, http://www.rcfp.org/taping/quick.html (last visited Aug. 17, 2011).
16. Recording a telephone conversation in Connecticut without the consent of all parties may expose you to civil liability. Conn. Gen. Stat. § 52-570d (2010). However, it is legal to record non?telephonic conversations or discussions with the consent of one party to the conversation or discussion. Id. §§ 53a-187, -189. Similarly, recording a telephone conversation in Nevada without the consent of all parties and in the absence of an emergency situation is a misdemeanor. Nev. Rev. Stat. Ann. §§ 200.620, 707.900 (LexisNexis 2011); Lane v. Allstate Ins. Co., 969 P.2d 938 (Nev. 1998). However, it is legal to record non?telephonic private conversations with the consent of one person engaged in the conversation Nev. Rev. Stat. Ann. § 200.650 (LexisNexis 2011).
17. See, e.g., Ind. Code §§ 35-33.5-1-3.5, 35-33.5-1-5 (2011); Mo. Rev. Stat. § 542.402 (2011).
18. See, e.g., Cal. Penal Code § 632(b) (Deering 2010) (defining “person” as covered by the act to “exclude an individual known by all parties to a confidential communication to be overhearing or recording the communication”); Ga. Code Ann. § 16-11-62 (2011)(prohibiting “any person in aclandestine manner” from recording “the private conversation of another which shall originate in any private place”) (emphasis added); Mass. Gen. Laws ch 272, § 99 (2011) (defining “interception” as “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication . . .”) (emphasis added); Mont. Code. Ann. § 45-8-213(1)(c) (2010) (prohibiting recording “by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation”) (emphasis added); Nev. Rev. Stat. Ann. § 200.650 (LexisNexis 2011) (prohibiting “surreptitiouslylistening to, monitoring or recording, or attempting to listen to, monitor or record, by means of any mechanical, electronic or other listening device, any private conversation”) (emphasis added); Or. Rev. Stat. § 165.540(1)(c), (6)(a) (2009) (wiretapping law does not apply to persons who intercept oral communications with “an unconcealed recording device” at “public or semipublic meetings.”). However, student journalists in Georgia should note that a school may be considered a “private place” so that conversations recorded within a school building might fall within the statute.Atlanta Indep. Sch. Sys. v. S.F., No. 1:09-CV-2166-RWS, 2010 U.S. Dist. LEXIS 124152 at *10 (N.D. Ga. Nov. 23, 2010).
19. For examples of states requiring a visible presence, see Colo. Rev. Stat. § 18-9-304(1) (2010); Iowa Code § 727.8 (2011); see also State v. Reid, 394 N.W.2d 399, 405 (Iowa 1986). For examples of states that do not specify that the person doing the recording need be visible, see Ariz. Rev. Stat. § 13-3005(A)(2) (LexisNexis 2011); Conn. Gen. Stat. §§ 53a-187, -189 (2011); N.Y. Penal Law §§ 250.00, 250.05 (Consol. 2011); S.D. Codified Laws § 23A-35A-20 (2011). Similarly, the Maine wiretapping act applies only to those outside the range of normal unaided hearing to the conversation. Me. Rev. Stat. tit. 15, § 709 (2011).
20. But see State v. Sells, 582 So. 2d 1244, 1244 (Fl. Dist. App. 1991) (holding that mere suspicion or implied knowledge that one is being recorded does not automatically mean that the speaker has no reasonable expectation of privacy).
21. People v. Ceja, 789 N.E.2d 1228, 1240?41 (Ill. 2003).
22. Wash. Rev. Code § 9.73.030(3) (2011). Note that the announcement must itself be recorded. Id.
23. Lewis v. Dept. of Licensing, 139 P.3d 1078, 1080 (Wash. 2006) (no reasonable expectation of privacy in a conversation with an undercover police officer when it “takes place at a meeting where one who attended could reveal what transpired to others”); State v. Bonilla, 598 P.2d 783 (Wash. App. 1979) (“It would strain reason for Bonilla to claim he expected his conversations with the police dispatcher to remain purely between the two of them.”); State v. Flora, 845 P.2d 1355, 1358 (Wash. App. 1992) (“Because the exchange [between a police officer and an arrestee during an arrest] was not private, its recording [by the arrestee] could not violate RCW 9.73.030 which applies to private conversations only”).
24. Kelly v. Borough of Carlisle, 622 F.3d 248, 257 (3d Cir. 2010) (following Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989)).
25. Commonwealth v. McIvor, 670 A.2d 697, 704, n.5 (Pa. Super. 1996). In McIvor, an appellate court of held that statements by motorists to a police officer during a traffic stop were “oral communications” covered by the Pennsylvania wiretapping act, as were statements from the police officer to the motorists. The reasoning in McIvor, however, was based on the expectation that the conversation would not be recorded, and not on the expectation that the conversation was “private.” This approach was discredited in Agnew v. Dupler, 717 A.2d 519, 523 (Pa. 1998), and McIvor is likely no longer good law.
26. 720 Ill. Comp. Stat. §§ 5/14-1(d), ?2(a)(1) (2011) (emphasis added).
27. People v. Siwek, 671 N.E.2d 358, 363 (Ill. App. 1996).
28. 750 N.E.2d at 964 (2001).
29. Mass. Gen. Laws ch 272, § 99(B)(2) (2011).
30. Commonwealth v. Manzelli, 864 N.E.2d 566, 568, 570 (Mass. App. 2007).
31. No. 10-1764
32. Cal. Penal Code § 632 (Deering 2010); Fla. Stat. §§ 934.02(2), 934.03(2)(d) (2011); Mich. Comp. Laws §§ 750.539a, 750.539c (2011); N.H. Rev. Stat. Ann. §§ 570-A:2(I)(a), 570-A:1(II) (LexisNexis 2011).
33. See, e.g., Mass. Gen. Laws ch 272, § 99(C)(3) (2011).
34. See Bartnicki v. Vopper, 532 U.S. 514 (2001); Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007).