by Garret Ean
Oct 30 2010
In Concord, you may be forcibly prevented from filming police.
Concord’s Police Department is of recent developing a bit of a negative reputation when it comes to allowing its subjects to film their civil servants as they hand out tickets, make arrests, and the like.
The issue of filming/recording the police has gotten some overdue attention recently following the case of Anthony Graber in Maryland. Graber was performing some stunts on his motorcycle and recording the action with a helmet cam. An undercover officer, who would have otherwise been more than justified in stopping and citing Mr. Graber, decided to jump out of his car suspiciously and pull out a gun, all of this prior to identifying himself as a police officer.
Full video: http://www.youtube.com/watch?v=RK5bMSyJCsg
Graber was cited and went on his way. It wasn’t until days later, after he’d posted the video of the officer’s inappropriate behavior on YouTube, that he faced felony charges for the crime of videotaping in public.
Despite no disciplinary action being taken against Joseph Uhler, the reckless state trooper in this case, the state charged Mr. Graber with felony wiretapping. Over the recording alone, Graber spent 26 hours in a cage. His family’s home was ransacked by police while they too were also detained. All of this for the crime of documenting police misconduct. Fortunately, the charges would be thrown out by a judge. For more on Graber’s case, see http://www.pixiq.com/article/maryland-motorcyclist-spends-26-hours-in-jail-on-wiretapping-charge-for-filming-cop-with-gun
As the name implies, wiretapping statutes were designed to prevent the criminal tapping of wires. Intended to recognize the bugging of one’s home or phone as a criminal invasion of privacy, these codes are being abused by police departments around the nation to prevent citizen-subjects from having a means of holding the police accountable.
The Proliferation of Video Recording Technology
As audio/video recording devices get less expensive and more durable, we enter an age in which anything anywhere could potentially be recorded. Andrew Napolitano is credited with coining the phrase, “the camera is the new gun”. For police officers who are always on their best behavior, the technology proliferation should pose no threat. But for officers whose tactics are what could be called morally questionable, cameras pose a threat to their way of life.
While it is hard for many to accept, especially those who do not belong to a targeted demographic, there are many people who are attracted to power for the wrong reasons and the power that accompanies being a police officer presents no exception.
Wiretapping Statutes in New Hampshire
New Hampshire’s Wiretapping statute is written in such a way so as to muddle the English language and give the reader a variety of possible interpretations to choose from.
When reading the main clause of the statute, one would get the impression that it is impossible to record someone without their consent (the word ‘consent’ implies that a positive affirmation may be necessary to proceed, but in this statute this is not the case).
A person is guilty of a class B felony if, except as otherwise specifically provided in this chapter or without the consent of all parties to the communication, the person:
(a) Wilfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any telecommunication or oral communication;
Definitions are what make all the difference here. Since “intercept” sounds rather ambiguous, the state defines it within this particular statute as, “…the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of any electronic, mechanical, or other device.”
One word/phrase that is crucially changed in meaning once put into context within the statute is “oral communication”. The statute defines oral communication as, “any oral communication* uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”
*Beginning the definition of a phrase with the phrase demonstrates the linguistic precision of legalese, the language of the State.
Being as how it is not a crime to film in public, it is not illegal for someone to film an officer of the state in public, especially once the agent has been informed that a legal recording is occurring. Granted, the statute is terribly written. Taking the first sentence out of context would give one the impression that any recording of an oral communication is illegal without expressed consent. However, this is not the case, as it would effectively prohibit the use of any audio recording device in the state. This legal confusion is being exploited by police officers as a means to intimidate those who wish to do nothing but hold them responsible for their actions by recording them. When it is an individual officer abusing his power, the individual transgression can be dealt with. When the problem becomes systemic, it has reached the level of corruption.
An Expectation of Privacy?
Let us consider the notion that officers are claiming they have a right to privacy while at the same time invading someone else’s privacy. Individuals on the receiving end of police encounters are more often than not involuntary participants in the dialogue. Keeping in mind that it is very likely that a police officer will have to relay information regarding encounters with you in a court of law, how could their be any claim that the interaction is private?
Whenever you are interacting with a uniformed police officer, you are dealing with them in their official capacity. They work for you (whether you like it or not), though unlike anyone else you may contract the labor of, you cannot fire these employees. There could hardly be a more outwardly public interaction than one with a police officer. So why is it that officers are claiming that their right to privacy deems you a felon for recording them?
Could the officers be claiming they have a right to privacy so that they may fudge their police reports? After all, it makes their own job easier if the only official report from the scene is from the officer, where what he says happened is what is presumed to have happened. If video recording of officers were allowed, then officers would have the grueling task ahead of them of getting their own story straight until it was consistent in both their report and the video evidence.
These were precisely the motivations behind threatening Anthony Graber with a felony. Mr. Uhler neglected to mention in his report that he had ever pulled his gun. And Mr. Graber’s posting of that fact on YouTube threatened Mr. Uhler’s integrity. An officer of his status could not allow such a demonstration of his recklessness to be posted on the internet unpunished.
Wiretapping Statute Abuse Outside of Concord
Elsewhere in the state, citizen-subjects have been arrested and had their cameras stolen, only to be released.
The Union Leader reported on October 18th the stories of Carla Gericke and William Rodriguez, who were arrested on felony wiretapping charges. They were never indicted, but the state is refusing to return their cameras. Currently, an attorney working on their behalf is fighting for a review of Weare PD’s own recordings, which they claim don’t exist. A quote from attorney Seth Hipple at the end of the article sums it up: “The defendant is trying to make it public and the state is trying to hide it, so who do you believe?”
The article also appeared on the front page of the Goffstown News on October 21.
In November of 2008, Cooper Travis was arrested at his home after an officer claimed to ‘withdraw consent’ from being recorded. The video is here: http://www.youtube.com/watch?v=ZcL-b0Gdopg
In July of this year, Adam Mueller and Pete Eyre of New Hampshire traveled to Greenfield, Massachusetts to bail a friend out of jail. They tried to film their encounters with police, and were arrested for felony wiretapping. The story was covered by Penn Jillette in his video series ‘Penn Point’.
In my encounters with Concord Police, I have been lied to thrice by different officers, being told that their informing me that they did not want to be recorded was enough to make me a felon if I did not stop. Because of such confusion, I begin any recording of a police encounter by alerting the officer that I am recording, so that there can be no later claim that there was an expectation of privacy. When there are multiple officers on the scene (and in Concord, they will call multiple officers to any scene, regardless of how innocuous) I inform each officer on record that they are being recorded as soon as they arrive.
Police Confusion becomes Police Threatening
When an officer is confused about the law, that they would accept being corrected is respectable. Four out of four officers that approached me in the early hours of June 29, 2010 were incorrect in their interpretation of the statute. Three out of four were professional enough to accept my rebuttal to their assertion that my recording them was a crime. The last officer to arrive on the scene, identified later as Sgt. Michael Pearl, instead of acknowledging a confusion and allowing me to continue recording, felt it necessary to forcibly stop my recording of him. He screamed in my face and aggressively snatched the phone out of my hand. Despite the fact that the recording had already ended, he then powered the phone off, and ordered me to put it in my pocket. I instantly began exercising my fifth amendment rights (as you almost always should — do not talk to police) and was released shortly thereafter.
On July 9th, I filed a complaint with the police department over a number of issues. The first was the constitutionality of the detention. My offense was being out late at night — literally. I was not even told I was suspected in any recent crime. I was told that there were missing juveniles and that I looked young. When I asked if I matched the description of any missing juveniles, I was told the missing juveniles were females. Video of the complaint being filed is here:
The second issue was that I was misinformed (hopefully that and not actually lied to) by police when I was told I could not record them. I respect that, Mr. Pearl excepted, the three other officers never felt compelled to attack me over my peaceful recording.
My third issue was the physical assault, and also the otherwise nastily patronizing demeanor of Mr. Pearl. His behavior that night more resembled the thugs he is paid to pacify than the standard of the office which calls him to be controlled and collected in the face of intimidation. Instead of confronting peaceful noncompliance with his authority with professional problem solving, he decided to fall back on a policy of might makes right.
After relaying my story to Officer Mike McGuire, my suggested retribution was fairly straightforward. (You can read my report below). I wrote,
“I would appreciate this situation be rectified by Concord Police Department educating their officers on the specifics of the wiretapping statute, and publicly stating their policy when officers are being legally recorded.
So long as he understands why he acted inappropriately, I would appreciate an apology from the officer who grabbed my phone out of my hand, who identified himself as the midnight shift supervisor.” (That was a polite way of asking for not just an apology, but an understanding of why assaulting peaceful people is wrong).
I received a letter back from CPD in August that relayed to me very little information. It seems they have concluded the case, despite the fact that they make almost no statements about their findings on the incident. It is difficult to interpret what message the Concord Police Department was trying to relay with this piece of mail, but the impression I received was that they were not particularly interested in investigating my complaint. My complaint report and the letter I received in response about a month later are linked in .pdf format below.
I will be following up with Concord Police Department shortly to see what the findings of the investigation are.
Concord Police Department’s Continuing Incidents
Paula Werme of nhdcyf.info has put together three main legal reasons taping is not illegal. Though legal reasons are not necessarily logical reasons, you may find them interesting. The link is:
Video recording is not something totally foreign to Concord PD. There a several instances on YouTube in which there are cameras at protest or outreach events, and seldom are officers even reactive to them.
During a September 4th chalking of the federal compound on Pleasant St, a Concord Police officer told Dave Ridley, freelance journalist of ridleyreport.com that his recording of him was illegal. The unidentified officer in the video claimed to be cutting Dave a break by not arresting him (and was surprisingly cordial as though he were not threatening Dave’s sovereignty). It is commendable that they did not try to break up the peaceful protest, but the claim that Dave can’t record is unfounded, as Dave points out in the video. The officer evades any discussion of the law and reasserts that he is correct, but that he’ll be nice enough to cut Dave a break by not kidnapping him.
The case of baby Cheyenne made headlines in some national circuits, as the State cited a political affiliation in its list of justifications for taking the sixteen-hour-old daughter of Johnathan Irish and Stephanie Taylor. While there are already countless pieces written on the State’s missteps in handling that case, the issue of recording was rather obscured by the severity of all other factors in the case. In an interview with Dave Ridley, Stephanie Taylor explains that she was forcibly prevented from recording authorities as they took custody of her child. Concord Police were at the time present in the room with Hospital Security and DCYF.
Stephanie Taylor reports Concord Police did in fact inform her that recording was illegal, and threatened her with further assault if she were to start recording. At 2:08 in the video, “I saw the police officer say it, but I heard other people in the room saying it as well. That [it] would not be allowed to be recorded.”
This level of irresponsibility borders on criminal. The state was already facing long overdue attention for DCYF’s constitutionally questionable investigation and enforcement tactics. To say that any agency undertaking an act this controversial claims any right of privacy is an abuse of power that this organization was never morally delegated. The members of all organizations involved, Concord Hospital, Concord Police Department, and of course DCYF, ought to do a lot of thinking as to what their role is as an actor for an agency using an abuse of a statute to its own advantages. And for the actors who were personally involved in preventing recording — consider whom you may owe an apology.
What can we do?
And what does “we” mean? Unless you want Concord to continue as a haven of incentive for police irresponsibility, let it be clear that you as an individual will film the police for your own safety and for their accountability. Honest officers have nothing to hide and should be delighted with the prospect of police-civilian relations occurring legally and respectfully.
Perhaps more people should contact the Concord Police Department and request a public statement from them which will clarify their policy on being recorded legally and peacefully. The misinformation they have been giving their subjects will not stand up to public scrutiny. It is not a crime to film a police officer.
To contact Concord Police, call 603-225-8600, or e-mail firstname.lastname@example.org. If you are a Concord resident, let them know your opinion on whether one should be assaulted and threatened with a felony for recording them as they work for you.
Don’t Fear Those Who Supposedly Work For You
If you are nervous that you may be intimidated out of recording by police in the state of New Hampshire, I’ve provided a link to a .pdf below that will print out a number of convenient cards that you can put in your wallet with the relevant portions of the wiretapping RSA printed on it. If you get questioned for recording, be sure to get yourself on tape showing the officer the statute.
If you are ever in Concord after hours, try to have a video camera (or two) handy. Assert your rights, or lose them.