Aug 29 2011

Greenfield police charge LOT’s Beau Davis with “wiretapping”

Dr. Q

Beau Davis, whom I’ve spoken with a few times in the past, recently announced that police in Greenfield, Massachusetts have charged him with “wiretapping” for reasons that are currently unknown to him.

Beau has worked with my friends Adam Mueller and Pete Eyre on their project Liberty On Tour. Last year, prior to starting Liberty On Tour, Adam and Pete were arrested by the Greenfield police and charged with wiretapping for recording themselves trying to bail a friend out of the Franklin County Jail. They thoroughly documented their arrest, court hearings, and other interactions with the Greenfield police at Cop Block and Liberty On Tour with blog posts, legal documents, and, most importantly, videos, some of which were made with Beau’s assistance.

It seems likely that Beau’s wiretapping charge has something to do with the work he did with Adam and Pete during their wiretapping ordeal.

Here’s how Beau described the charges on his new blog which he just launched to raise awareness about his case:

A few days ago, my parents in FL received a letter in the mail from the Trial Court of Massachusetts District Court Department, stating that I needed to be present in court in Greenfield, MA, alleging that I unlawfully wiretapped a member of the Greenfield Police Department on May 20, 2011.  The charge is, as it is written in the letter, “WIRETAP, UNLAWFUL c272 §99(C)(1)”, which is a felony in Massachusetts.  The charge was filed on August 11, 2011.  It is August 21, 2011 and I am just now receiving the letter today from my parents.  The date of the arraignment is September 7, 2011.

I still do not know how Greenfield acquired my parents address back home; I can only speculate at this point.

The court has not stated how I have allegedly committed this offense, so I have nothing to go on at the moment, other than speculation.  Now, why Greenfield, MA is trying this again after they failed to convict my friends Pete Eyre and Ademo Freeman for the same “offense”, I do not know.  This could be to save face or to try and further make an example of one who tries to hold public officials accountable for their actions.  I do not understand their motives as I do not yet know who I’ve apparently hurt in the matter.

— Beau Davis, “The Letter That Came In The Mail,” 5 Years For Filming a Cop, August 21, 2011

As I’ve discussed on this blog numerous times before, the Massachusetts wiretapping statute only prohibits the creation of “secret” audio-recordings. Unless a prosecutor can show that Beau “secretly” recorded the police, (by, for instance, hiding a recording device in his pocket), then it’s unlikely that he will be convicted of wiretapping.

But even if Beau did openly record the police, it’s still likely that his charge will go to trial. When Adam and Pete were arrested for wiretapping, they held their cameras in plain sight and made it clear that they intended to record the police, but that didn’t stop Northwestern Assistant District Attorney Jeffrey Bengston from prosecuting them nor did it stop Judge William F. Mazanec III from refusing to dismiss their bogus charges.

As soon as more information about Beau’s case becomes available, I’ll post an update.


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.