Arrests over cell phone videotaping of police lead to increasing number of lawsuits

Jon Campisi Oct. 11, 2011, 10:03am

With an increasing number of Americans using smartphones, it’s only logical to conclude that the number of people whipping out the devices to video and audio record situations in public would increase.

But that revelation also seems to show that more and more people are finding themselves afoul of the law, at least in large, metropolitan areas, where the number of people arrested for filming police officers in the course of their duty seems to be going up.

In Philadelphia, local media has reported incidents in which citizens have been accosted by cops who aren’t too keen on the idea of being filmed in public, even though the city’s own police commissioner recently issued a statement saying the practice is legal.

On Sept. 23, the Philadelphia Daily News reported, Commissioner Charles H. Ramsey sent out a memo to department heads telling them to inform their officers that members of the public do, in fact, have a right to film officers engaged in their job. This means people can record cops in the midst of making arrests.

“It is not illegal to videotape a police officer,” Ramsey told the Daily News in an Oct. 7 story.

In response to a handful of incidents in which citizens were subsequently arrested for filming police officers, the Pennsylvania office of the American Civil Liberties Union is planning to file a lawsuit soon to address what it claims has been heavy-handed tactics on the part of police to deny citizens their First Amendment rights.

According to a report in the Daily News, the lawsuit will be filed on behalf of four people who were allegedly involved in clashes with police.

One plaintiff is a college student who was arrested after attempting to videotape a police officer escorting a woman out of a city park, the paper reported. Another is a college professor and the third is a college student. Both were reportedly arrested by police after they were discovered filming the arrests of others.

Mary Catherine Roper, a lawyer with Pennsylvania’s ACLU, confirmed that her office is planning to move forward with legal action to address this issue.

“We have [received] several complaints and we’re planning to file,” Roper told the Pennsylvania Record in a phone interview Friday.

Roper stressed the issue is not about police confiscating, or, in some cases, allegedly damaging cell phones involved in police filming, as some media have made the issue out to be.

“It’s not about police confiscating cell phones,” she said. “It’s about people being arrested because they are watching or recording police.”

Roper said her office has actually been getting these types of complaints for years, but they seem to have increased in frequency with the increased possession of smartphones.

“That’s one reason why we decided we needed to do something,” she said.

Ben Picker, a Montgomery County, Pa. attorney specializing in civil rights cases, said Pennsylvania courts have ruled that the videotaping of police officers does not violate the state’s wiretapping law, which requires two-party consent in most circumstances, because cops performing their official duties in public have no expectation of privacy.

Picker noted the recent First Circuit U.S. Court of Appeals Ruling in which the judges upheld a Boston man’s First Amendment right to videotape police officers.

Here in the commonwealth, he said, there was a case in October of last year, Kelly vs. Borough of Carlisle, which paved the way for Pennsylvanians to continue videotaping cops in public. It was in this case, he said, that the courts ruled working cops don’t have the same expectation of privacy as that of private citizens.

The case of Agnew vs. Dupler in 1998 led to a similar outcome, Picker said. In this case, the Pennsylvania Supreme Court held that “conversation amounts to a protected ‘oral communication’ under the Wiretap Act only where the speaker possessed a reasonable expectation of privacy in the conversation.”

This case, however, dealt with officers in the squad room as opposed to general members of the public out and about. Still, the result was the same.

Picker said unlike the First U.S. Circuit Court of Appeals in the Boston case, the U.S. Court of Appeals for the Third Circuit, based in Philadelphia, has not yet ruled on the First Amendment claim in these types of video recording cases involving police officers.

However, Picker did note that in Pennsylvania, people can sue municipalities if officials are “deliberately indifferent to your constitutional rights.”

In the Borough of Carlisle case, the defendant police officers were sued as individuals, he said.

Early last month, the Pennsylvania ACLU announced the settlement of a lawsuit the group had brought on behalf of a Pennsylvania college student stemming from a 2009 incident in which the man was charged with felony violation of Pennsylvania’s Wiretap Act for using his cell phone to record the detention and questioning of a friend by a University of Pittsburgh police officer.

The cop made no admission of liability, the ACLU announced in a Sept. 7 news release, but agreed to settle the man’s collective claims of damages and attorney’s fees for an amount totaling $48,500.

“The Wiretap Act, which forbids audio recording without the consent of all parties involved, does not apply to people who audio record government officials in public settings, where they have no expectation of privacy,” the news release stated.

“The right to record police is an important human-rights-protection tool, as the ongoing Twitter and YouTube postings from North Africa and the Middle East have shown, and it’s an equally important police misconduct deterrent in the United States,” Witold Walczak, the ACLU of Pennsylvania’s legal director, was quoted as saying in the news release announcing the Pittsburgh settlement.

Late last month, the Pennsylvania Record reported that a West Chester, Pa. woman had filed a federal lawsuit against the City of Philadelphia and three city police officers for violating her rights when they arrested her for taking cell phone video of a what appeared to be questionable arrest tactics on another civilian.

That lawsuit is pending in the U.S. District Court for the Eastern District of Pennsylvania.

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