In what seems to be a growing trend sweeping the country, police arrested a man after he used a camera to record their actions.
These arrests have become so widespread that even Fox News is taking notice. Well, actually a freelancer who writes a biweekly column for them.
Still, I’d never thought I would see the day when my name is mentioned on Fox News in a story where my rights are being defended. But there it is in the fifth paragraph.
Photojournalist Carlos Miller was arrested in February of this year after taking pictures of on-duty police officers in Miami.
And in the eighth paragraph:
It’s critical that we retain the right to record, videotape or photograph the police while they’re on duty.
I have to hand it to writer Radley Balko, who describes himself as a “libertarian” on his website, for putting the “Fair and Balanced” in Fox News.
The latest incident involves amateur videographer Brian Kelly, an 18-year-old man who spent 26 hours in jail after his arrest last month.
Kelly was charged with a state law that makes it illegal to record a person’s conversation without their consent. He was facing seven years in prison.
Not surprisingly, the arresting police officer failed to see the irony in the fact that that he was also recording the conversation with a video camera in his squad car.
The district attorney, however, was unable to ignore the irony (or perhaps it was the huge public outcry that resulted from a local news article) and ended up dropping the felony charge against Kelly.
“When police are audio- and video-recording traffic stops with notice to the subjects, similar actions by citizens, even if done in secret, will not result in criminal charges,” Cumberland County District Attorney David Freed told The Patriot-News
“I intend to communicate this decision to all police agencies within the county so that officers on the street are better-prepared to handle a similar situation should it arise again.”
But does that make up for the fact that Kelly was jailed for more than 24 hours and his mother was forced to pay $2,500 to bail him out?
A little research revealed that Kelly may be entitled to sue the Carlisle Police Department, if a similar incident that occurred in Washington state in 2004 is any indicator.
In that incident, Anthony Johnson was arrested by Sequim Police Chief Byron Nelson for filming in his squad car as he was talking to a dispatcher. He was charged with violating the Washington Privacy Act, which bars intercepting or recording a private conversation without the consent of all participants.
The trial court dismissed the charges after finding that Nelson had no expectation of privacy because he parked his patrol car with the windows rolled down in a public place.
Johnson sued Nelson and the police department for violating his First Amendment and Fourth Amendment rights. At first, the district court dismissed the suit, but Johnson appealed and the Court of Appeals reversed the decision, allowing him to sue.
Judge Kim M. Wardlaw wrote the following in the 2-1 majority:
“It is undisputed that Johnson recorded Chief Nelson while he was on duty performing an official function in a public place. Johnson did not violate the Privacy Act when he recorded this official, public activity…
“If Chief Nelson had wished to keep the radio communications from the public, he should have rolled up the driver’s window, and refrained from rolling down a second window, where Johnson was standing next to the car with his video camera pointed inside…
“There is no reasonable expectation of privacy in communications over police dispatch radio in any event because those communications are knowingly exposed to the public by virtue of their transmission.”
So Brian, if you’re reading this, please pursue this to the highest level because when Fox News is on your side, there is no way you can lose.
Just ask George W. Bush.186
