Nov 1 2011

Relative of Bruins player charged with “wiretapping” for recording cops

Dr. Q

The Patriot Ledger reported last month that Chelsea Orr, the daughter-in-law of former Bruins player Bobby Orr, was charged with felony “wiretapping” for recording her conversations with Cohasset police officers.

Chelsea Orr was arrested by the Cohasset police for drunk driving shortly after she drove her SUV off the road, hit a tree and stone wall, and flipped her vehicle over. After the police took Orr into custody, they brought her to South Shore Hospital to be examined by doctors.

Police claim that Orr told them she was Bobby Orr’s daughter-in-law and that she planned to have the officer who arrested her fired, stating that she could so do because she is “very powerful.” She also allegedly told the police that she had been secretly recording her conversations with them using her iPhone.

After police learned about the recordings, they seized Orr’s phone and tacked on a felony “wiretapping” charge.

Orr later pleaded not guilty to all the charges against her during a hearing at Quincy District Court. She was released on $1,000 bail.

Based on the police’s version of the story, it sounds as though Orr really is guilty of violating the Massachusetts wiretapping statute. Although it is legal to record one’s conversations with others in Massachusetts, the state’s wiretapping statute prohibits “secretly” audio-recording others. If Orr had held her iPhone “in plain sight” (to use the language of the Massachusetts Supreme Judicial Court), her recording would have been perfectly legal. As it stands, surreptitiously audio-recording the police — or anyone else — is a felony in Massachusetts.

Personally, I think this is ridiculous. Laws that criminalize the creation of audio-recordings of one’s interactions with police are attacks on freedom of expression and freedom of the press.

Police are public servants, paid for with tax dollars, so members of the public should be free to create records of what they’re doing when they’re on duty. Police are also powerful people and recording them is one of the best and only ways that the average person can hope to hold them accountable.

Criminalizing the recording of police officers — whether it’s done secretly or in the open — will only lead to more incidents of police abusing people. As former SJC Justice Margaret Marshall put it, the state wiretapping statute “allow[s] police officers to conceal possible misconduct behind a cloak of privacy.”

It may be that Chelsea Orr was drunk and driving in a way that endangered others around her. She may have even made an ass out of herself to the cops who arrested her. But none of that changes the fact that she should be allowed to record her interactions with police. If she goes to trial, I hope there are some sensible individuals on the jury who refuse to convict her of the “wiretapping” charge regardless of what the evidence is.

Update (7/1/2013): I found out by calling the Norfolk District Attorney’s Office that Chelsea Orr’s charges went to trial on May 21, 2012. Orr was acquitted of all the charges, including the wiretapping charge. Unfortunately, I don’t have any information about the arguments used during the trial, because the none of the media outlets that initially covered this story appear to have followed up on it.


Oct 11 2011

“Shut that fucking thing off before I slap you!”

Dr. Q

“Shut that fucking thing off before I slap you!”

Those are the words that UMass Lowell student Brendan Brown heard shortly after he trained his cell phone camera on several campus police officers last Saturday.

Brown told me that he was leaving a friend’s house when he noticed a “big brawl” taking place outside an apartment. When police appeared on the scene to break up the fight, Brown stood a reasonable distance away from the action, took out his cell phone, and began documenting the activity. In less than a minute, the officers turned to face Brown and one asked him, “You all set over there with the camera?”

“Yeah, I’m all set,” Brown responded.

“Yeah, who are you?” the officer asked.

While Brown explained to the police that he was merely observing what was going on, an officer began walking toward him. That’s when the officer threatened to assault Brown.

After being threatened by the officer, Brown decided to comply with his demand “rather than to be possibly beat up and thrown in jail.”

In the case Commonwealth v. Hyde, a musician’s felony wiretapping conviction was upheld by the Massachusetts Supreme Judicial Court after he recorded police during a traffic stop, however, Hyde’s conviction stemmed from the fact that he made a secret audio-recording of police with a hidden tape recorder.

Openly recording police officers — like Brown was doing — is not a crime. As the SJC observed in Hyde, Hyde’s arrest and conviction “could have been avoided if, at the outset of the traffic stop, [he] had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight. Had he done so, his recording would not have been secret, and so would not have violated” the wiretapping statute.

More recently, a federal appeals court ruled that openly recording police officers in Massachusetts is an activity that is protected by the First Amendment and police officers may be sued for interfering with people who record them.

In fact, it’s legal to audio and video-record police virtually everywhere in the United States. The only major exception is the state of Illinois which currently has an “eavesdropping” law that criminalizes even openly audio-recording one’s own interactions with police officers without their consent. Despite the fact that recording police is generally legal, there have been hundreds of documented cases of police harassing, threatening, assaulting, and even arresting people for recording police activity in recent years.

But just because it’s become all too common for police to interfere (oftentimes violently) with people who record them does not mean that it’s acceptable. The officer who threatened Brown wasn’t simply disrespectful or unprofessional. What he did is a crime and he deserves to face consequences for it.

That officer deserves to lose his job. No person who believes he has the right to threaten to assault other individuals for something that is not only legal, but is protected by the First Amendment, has any business being a police officer. When you commit a serious crime like threatening someone without provocation, you don’t deserve a second chance with the badge.

The officer in the video should also be facing criminal charges. If Brown had approached a police officer and threatened to hit him, you can bet he would have ended up in jail. Police officers who make criminal threats don’t deserve to be treated any differently.

Brown agrees that his rights were violated, but told me that he has no plans to seek accountability from the campus police over the incident because he was unable to identify the officer who threatened him.

“If I had correctly identified the officer who made the threat, I would want him to be held entirely accountable and face whatever repercussions are given for this type of behavior. However since that is not the case, the awareness brought by this video is satisfying enough for people and especially UMass Lowell students to know what is going on and how business is being conducted by these public servants,” he told me.

However, Brown did say that the school’s student trustee, whom he described as a good friend, was aware of the video and was considering discussing it with the UMass Lowell Police Chief.

I decided that before I publish anything about the video, it would be fair to get a comment from the UMass Lowell Police Department so I sent in an email that included a link to the video and some related questions. I quickly received a response from UMass Lowell Police Chief Randolph E. Brashears.

Chief Brashears did not respond to any of my questions, but assured me that his department “take[s] citizen complaints seriously.” Though he did not comment on the department’s policy with respect to recording police activity, he did say that “The students involved have nothing to fear from our agency as I did not see any violations of the law on their part from the short video clip.” He said he will get back to me when he finishes investigating the incident.

I suggest contacting the UMass Lowell Police Department to let them know that the behavior of the officer in the video is unacceptable. You can contact the department on their non-emergency phone line at 978-934-2398. You can email the department at [email protected] or you can email Chief Brashears directly at [email protected]

I will post an update on this case as soon as more information becomes available.

Update (10/17/2011): The Lowell Sun, a Lowell-based newspaper, picked up this story. You can read their coverage here.


Aug 29 2011

Appeals court says there’s a clearly established right to openly record police

Dr. Q

In October, 2007, attorney Simon Glik was walking through the Boston Common when he saw three police officers struggling with a man. Glik, who believed the police were using excessive force, stood about ten feet away and began recording the police with his cell phone camera.

After the police had put the man in handcuffs, one of the officers told Glik “I think you have taken enough pictures.”

Glik told the officers “I am recording this. I saw you punch him.”

One of the police approached Glik and asked him if his cell phone recorded audio as well as video. When Glik responded in the affirmative, the police arrested him, took his cell phone, and charged him with felony wiretapping, disturbing the peace, and aiding in the escape of a prisoner.

The prosecutor for Glik’s case dropped the aiding in the escape of a prisoner charge and Municipal Court Justice Mark Summerville dismissed the two remaining charges, noting that while the “officers were unhappy they were being recorded during an arrest… their discomfort does not make a lawful exercise of a First Amendment right a crime.”

After Glik was cleared of the unjust charges, the American Civil Liberties Union of Massachusetts filed a federal lawsuit against the three officers who arrested him and the City of Boston on behalf of Glik. The suit alleges that the three officers, John Cunniffe, Peter Savalis, and Jerome Hall-Brewster, violated Glik’s First Amendment rights by arresting him for recording them and his Fourth Amendment rights by arresting him without probable cause that he committed a crime.

The officers attempted to have Glik’s lawsuit dismissed on the grounds that they were entitled to “qualified immunity,” a legal privilege that shields certain government officials from liability when they violate the rights of others if they can show that a reasonable person would have done that same thing if in their shoes. The officers argued that it was reasonable to arrest Glik and charge him with wiretapping “because it is not well-settled that he had a constitutional right to record the officers.”

The officers’ motion to dismiss the lawsuit was rejected by a district court judge, but the officers were allowed to appeal.

The results of the appeal came back on August 26, when the First Circuit appeals court issued a unanimous ruling. Like the district court, the First Circuit rejected the officers’ claim of qualified immunity, noting that the right to openly record police in Massachusetts is firmly established and that the officers should have been aware of this. As the court wrote in its ruling (.pdf format):

The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” … An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.'” …

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.”

The appeals court ruling is a real victory. Not only will Glik be permitted to move forward with his lawsuit, but now judges will be less likely to entertain wiretapping cases and police will be more likely to face lawsuits, under both the first and fourth amendments, if they arrest videographers.

However, the Massachusetts wiretapping statute will still be problematic for people who support police accountability. Although the right to openly record police has been firmly established, the currently accepted interpretation of the wiretapping statute criminalizes “secretly” recording police even when they are on duty and in public places like the Boston Common. In the case Commonwealth v. Hyde (2001), the Massachusetts Supreme Court ruled that Michael Hyde, a musician, violated the state’s wiretapping law when he recorded a police traffic stop with a tape recorder hidden in his car. The Supreme Court ruled that even though Hyde’s recording was made in a public place, it was created in “secret” because Hyde concealed his tape recorder. The court noted that he could have avoided his conviction if he “had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.”

The right to make “secret” recordings of police is just as important as the right to make recordings of police “in plain sight.” If a police officer is willing to commit a serious crime like making a false arrest or beating someone, it’s not likely that their moral compass will prevent them from destroying evidence. Hiding a recording device in one’s pocket may be the only hope a victim of police brutality or misconduct has for getting accountability. Until a court overturns the decision in Hyde, the Legislature changes the wiretapping law to allow “secret” recording, or voters pass a ballot initiative to change the law, Massachusetts residents will continue to live in fear that they will be prosecuted and imprisoned simply for trying to hold the police accountable.


Aug 18 2011

No charges against Springfield woman who recorded police beating

Dr. Q

Last week, Springfield police officer Michael Sedergren filed an application for a criminal complaint accusing a woman, Tyrisha Greene, of illegal “wiretapping” because of a video-recording she made in November, 2009. The video in question shows a white police officer beating a black man named Melvin Jones with a flashlight during a traffic stop while a group of other white police officers (including Sedergren) watch and fail to intervene. The beating left Jones with broken bones in his face, broken teeth, and partially blind in one eye.

You can view Greene’s video here.

The officer who carried out the beating, Jeffrey M. Asher, was fired over the incident (but not until after he received his disability pension) and currently faces criminal charges. Three other officers, including Sedergren, were disciplined over the incident. Sedergren was punished with a 45 day suspension from his job.

Asher and Sedergren are both currently being sued by Melvin Jones. Jones specifically accuses Sedergren of kicking him in the groin and calling him a racial slur.

Jones is currently being held in jail without the right to bail and faces a number of criminal charges from separate incidents including shoplifting, domestic assault, and cocaine trafficking.

Sedergren argued that the Greene’s video of the beating violated the Massachusetts wiretapping statute, which criminalizes the creation of “secret” audio-recordings of conversations, because it was recorded without his knowledge or permission.

Yesterday, The Republican reported that Assistant Clerk Magistrate Joanne M. McCarthy rejected Sedergren’s application after a short closed-door hearing at the Chicopee District Court.

Hampden District Attorney Mark G. Mastroianni said he would have been unlikely to pursue the charges anyway because the law only covers conversations for which a person has an expectation of privacy. “I’m leaving the door open if there is more evidence presented to me, but as I understand the facts now, this case falls far short of the wiretapping statute,” he said.

Mastroianni’s interpretation of the Massachusetts wiretapping statute appears to be different than the one offered by Massachusett’s Supreme Court. In the case Commonwealth v. Hyde (2001), the Massachusetts Supreme Court ruled that Michael Hyde, a musician, violated the state’s wiretapping law when he recorded a police traffic stop with a tape recorder hidden in his car. The Supreme Court ruled that even though Hyde’s recording was made in a public place, it was created in “secret” because Hyde concealed his tape recorder. The court noted that he could have avoided his conviction if he “had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.”

Regardless of how one interprets the wiretapping statute, McCarthy’s decision to reject the charge against Greene was a good one. There’s no evidence that Greene made her recording in “secret.” For instance, she did not deliberately conceal her recording device as Michael Hyde did. And even if she had hidden her camera, the “wiretapping” charges still would not be appropriate.

As I’ve written before, laws that criminalize the creation of audio-recordings in public are, at their core, attacks on freedom of expression and freedom of the press. They are especially odious when they are used to prosecute people who record powerful government officials like police officers during the course of their duties. Recording the police is one of the best and only ways that the average person can hope to hold them accountable. Criminalizing the recording of police officers — whether it’s done secretly or in the open — will only lead to more incidents of police abusing people.

The Massachusetts Legislature should update the state’s wiretapping statute to allow individuals to create “secret” audio-recordings of others as long as there is no expectation of privacy. Until then, jurors should refuse to convict individuals who are charged with “wiretapping” for recording public officials like police officers even when the recording is made in “secret.”


Aug 15 2011

Whitman man arrested on “wiretapping” charges for recording police

Dr. Q

Last week, I wrote about a Springfield, Massachusetts police officer who filed a criminal complaint against a woman alleging that she engaged in unlawful “wiretapping” when she video-recorded a police beating. According to The Patriot Ledger, police in Whitman, Massachusetts also invoked the state’s wiretapping law against a person for recording the police earlier this month.

Robert E. Mansfield recorded an argument he had with a police officer during a traffic stop on June 30. The police officer apparently stopped Mansfield over a prior refusal to remove a tinted license plate cover. The officer issued Mansfield a citation during the stop. Mansfield went to the police station on August 2 to ask the the police to drop the citation. Mansfield informed the police that he had recorded the traffic stop with his cell phone and the police arrested him, searched his car, and seized two cell phones.

“It is against the law to audio-record anyone without their knowledge – anyone,” Police Chief Christine May-Stafford told The Patriot Ledger.

May-Stafford has it wrong. The Massachusetts wiretapping statute actually prohibits the creation of “secret” audio-recordings of conversations.

In the case Commonwealth v. Hyde (2001) — which was strikingly similar to Mansfield’s case — Michael Hyde, a musician, used a tape recorded hidden in his car to record a traffic stop. Hyde was later arrested on wiretapping charges when he attempted to use his recording to file a complaint against the officer who stopped him. Hyde was convicted of wiretapping and the Massachusetts Supreme Court upheld the conviction, ruling that Hyde violated the law because his tape recorder was hidden in his pocket.

The court majority wrote in their ruling that Hyde could have avoided his conviction if he “had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.”

Whether Mansfield is convicted of wiretapping may depend on whether or not his cell phone was held “in plain sight” during the traffic stop.

Even if Mansfield deliberately hid his cell phone during the traffic stop, the charges against him are still ridiculous. Laws that criminalize the creation of audio-recordings in public — even if they are created in secret — are, at their core, attacks on freedom of expression and freedom of the press. They are especially outrageous when they are used to prosecute people who record powerful government officials like police officers during the course of their duties because recording one’s interactions with the police is one of the best and only ways that the average person can hope to hold them accountable.

If Mansfield’s wiretapping charge goes to trial, the jurors for the case should refuse to convict him.


Aug 11 2011

Springfield police officer accuses woman of “wiretapping” for recording beating

Dr. Q

Yesterday, The Republican reported that Springfield police officer Michael Sedergren has filed an application for a criminal complaint accusing a woman, Tyrisha Greene, of “wiretapping” because of a video-recording she made in November, 2009. The video in question shows a white police officer beating a black man with a flashlight while a group of three other white police officers (including Sedergren) watch and fail to intervene. You can view Greene’s video here.

The officer who carried out the beating, Jeffrey M. Asher, was fired over the incident (but not until after he received his disability pension) and currently faces criminal charges. Three other officers, including Sedergren, were disciplined over the incident. Sedergren was punished with a 45 day suspension from his job.

Sedergren argues that the Greene’s video violated the Massachusetts wiretapping statute because it was recorded without his permission.

Wiretapping and eavesdropping laws make it a crime to make an audio-recording of another person without that person’s consent. However, these laws only apply to conversations where a person has an expectation of privacy such as telephone conversations. In most states, people do not have an expectation of privacy when in public places, so abusive police and prosecutors simply pretend that wiretapping and eavesdropping laws apply to all conversations so they have a pretext to harass people who record police officers in public.

In Massachusetts, the state wiretapping law is a bit more complex than other states. Although it is legal to record audio and video in public in Massachusetts, the wiretapping statute prohibits the creation of “secret” audio recordings. In the case Commonwealth v. Hyde (2001), the Massachusetts Supreme Court ruled that Michael Hyde, a musician, violated the state’s wiretapping law when he recorded a police traffic stop with a tape recorder hidden in his car. “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,” wrote the court majority in their decision. “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.”

Despite the ruling in Hyde, police in Massachusetts have continued to abuse the wiretapping law to arrest people for recording them with devices in plain sight. In one of the most recent cases, my friends Adam Mueller and Pete Eyre were arrested and charged with wiretapping for trying to record themselves bail a friend out of the Franklin County Jail in Greenfield, Massachusetts. They were both acquitted by a jury earlier this year, but not until they had been forced to spend a night in a cold jail cell without blankets and attend numerous court hearings over the course of a year.

It’s not clear why Sedergren believes that Greene’s recording violated the Massachusetts wiretapping statute. After all, Greene did not try to hide her camera when she recorded the police beating. Sedergren’s criminal complaint is almost certainly just a vindictive attempt to retaliate against someone who gathered incriminating evidence against him.

Even if Greene had concealed her camera, I would still be on her side in this case. Laws that criminalize the creation of audio-recordings in public are, at their core, attacks on freedom of expression and freedom of the press. They are especially odious when they are used to prosecute people who record powerful government officials like police officers during the course of their duties. Recording the police is one of the only ways that the average person can hope to hold them accountable. Criminalizing the recording of police officers — whether it’s done secretly or in the open — will only lead to more incidents of police abusing people.