Pa. police dept. settles cellphone-recording arrest case for $65K

By Jon Campisi | Oct 11, 2013

A southwestern Pennsylvania police department has offered to pay out

A southwestern Pennsylvania police department has offered to pay out

$65,000 to settle a lawsuit by a man who claimed he was unlawfully arrested after recording officers with his cellphone.

The American Civil Liberties Union’s Pennsylvania chapter announced this week that the Point Marion Police Department agreed to settle the civil case of Gregory Rizer, who filed a complaint against the law enforcement agency challenging his 2012 arrest.

Rizer alleged in his civil action that the department had filed retaliatory charges against him after he complained to the borough’s mayor about the officer, who had confiscated Rizer’s cellphone and detained him for recording the officer’s alleged aggressive questioning of the plaintiff’s friend.

The police officer charged Rizer with violating the state’s wiretapping law, which requires all parties to a conversation to give their consent to be audio recorded.

Rizer’s complaint, however, like others that had been filed before it, noted that the Pennsylvania Supreme Court has already held that the Pennsylvania Wiretap Act does not apply if a person being recorded does not have a “reasonable expectation of privacy.”

The courts have ruled that public servants, such as police officers, who are in the midst of performing their duties, can indeed be recorded without consent since they have no reasonable expectation of privacy while on the job.

The criminal charge against Rizer was eventually withdrawn by the local district attorney, and the man’s cellphone was ultimately returned to him, although the recording of the encounter with the Point Marion police officer had been deleted from the phone’s memory.

“Rizer’s experience shows what happens when police officers try to shield their conduct from public scrutiny,” Healey & Hornack attorney Glen Downey, one of Rizer’s lawyers, said in a statement. “No one should be subjected to retaliation for simply documenting a police officer’s public acts.”

Reggie Shuford, the executive director of the ACLU of Pennsylvania, said in his own statement that audio and video recording police officers serves as a “check on the extraordinary power they have in our society.

“We hope that this case helps educate other police departments about the right of citizens to record and observe police officers on the job,” Shuford stated.

The ACLU and Downey jointly filed the civil complaint on Rizer’s behalf back on July 19, 2012, at the U.S. District Court for the Western District of Pennsylvania.

Rizer, a resident of Fayette County, claimed in his suit that the retaliatory arrest stemmed from an encounter on Jan. 3 of last year at the home of a friend, Shannon Hughes, who was being questioned by Point Marion Officer Kevin Lukart about the whereabouts of Hughes’ cousin.

Rizer began to record the encounter because he felt at the time that Lukart’s questioning was overly aggressive, the complaint stated.

The ACLU said that at this point in time, the officer seized Rizer’s cellphone and placed it in his patrol car.

Rizer was ultimately handcuffed and driven to the police station, where he was told that he would be let go if he penned a statement admitting that he had recorded Lukart without the officer’s consent.

In his lawsuit, Rizer alleged he was arrested the day after he complained about the incident to Point Marion Mayor Carl Ables, which occurred two days after the encounter at Hughes’ home.

The Fayette County District Attorney’s Office withdrew the charges against Rizer in late February of last year, the record shows.

Rizer claimed that when he went to retrieve his cellphone from the police department about a month later, he discovered that the phone’s SIM card was missing.

Sara Rose, a staff attorney working with the ACLU of PA, said in a prior statement that the case “smacks of unconstitutional retaliation.

“Not only did the police retaliate against Mr. Rizer for exercising his First Amendment right to record a police officer who he believed was inappropriately questioning his friend, but they filed a baseless charge against him after he complained to the mayor about police misconduct,” Rose stated around the time of the lawsuit’s filing.

The defendants – they included the Borough of Point Merion, its mayor, police chief, and Officer Lukart – made no admission of liability as part of the agreed upon settlement.

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