Videotaping the Police and the Consequences

by Professor Byron L. Warnken on May 21, 2010

Toward the end of the tumultuous 1960’s, Congress enacted the Omnibus Crime Control & Safe Streets Act of 1968, which contained a wiretap law.  Subsequently, many states, including Maryland, enacted a wiretap statute.  Maryland’s statute prohibits the intentional interception of any conversation, when the words are spoken to or by any person in private conversation.  The purpose of the statute is to protect people from having their private conversations secretively or surreptitiously recorded.  That is why when you call a business number, it may state that the phone call is being recorded for “quality control” purposes.  In that event, if both parties continue with the conversation, they must know that it is being recorded.

Two decades ago, the taping of the police beating Rodney King in Los Angeles forever changed things.  Recently, we saw that scenario in Prince George’s County with a student at the University of Maryland in College Park.  At this point, some assistant state’s attorneys are prosecuting or threatening to prosecute citizens for making audio recordings and/or video recordings of police interacting with the public.

These prosecutors may misunderstand the law.  It is true that, in Maryland, wiretapping is a five-year felony, but only when the conduct comes within the wiretap statute.  Thus, if there is evidence that a citizen secretly made an audio recording or videotape recording of another person, it is a felony.  If the person being taped is aware of the taping, it is not a crime, much less a felony.

When a police officer tells a citizen that the citizen better stop taping or he will be arrested for a felony, the police officer is obviously aware that he is being taped.  It the police officer is aware that he is being taped – and the taping is not secretive – that conduct is not a crime.  The police may not arrest for that taping.  The police may not seize the taping equipment.  The police may not charge the citizen with a crime.  The prosecutor may not prosecute that conduct as a crime.  As long as the citizen is not secretively make an audiotape or videotape, the citizen has a First Amendment right to tape the conversation or the conduct.

From the police perspective, I would lobby that because of the nature of a law enforcement officer’s job, he or she cannot simply “stop talking” when confronted with a situation where he or she knows of the taping, the way you could when dealing with customer service representatives on the telephone.  The police must continue speaking – must continue doing their job.  It is a new world – one where everyone has videotaping equipment in their pocket.  And because of this, the issue is coming up all of the time.

But as of right now, the taping is not a crime when the individual being taped is aware they are being taped.  There is not a law enforcement exception for the facts above.

Furthermore, there is an argument that, when the person being taped is a law enforcement officer, who is, at that time, in a public place, in the line of duty, the officer’s conduct is public — and not private – and the officer may be taped, even if the taper has not informed the officer of the taping and has not made the taping otherwise obvious.

Finally, there may be a policy consideration that works against the police.  The wiretap statute was designed to provide you and me with privacy.  When police are “out and about,” doing the work of the public, and they are taped, there is an argument that the legislature did not mean to insolate the police.  The legislature did not mean to permit the police to do the public’s work in private, with the police arresting anyone who wishes to make that police work public.

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Cops and the Constitution
May 24, 2010 at 12:55 pm

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