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Recording arrests may not be illegal, but police might object

Imagine you're riding as a passenger in a friend's car and he's pulled over by police. As your friend gets out of the car and is arrested, the officer suddenly turns his attention toward you. That's because you're recording the whole incident on your cellphone.

Is it legal to record the actions of a police officer? If the officer asks you to stop recording, what are the consequences of refusing to do so? These questions are becoming increasingly relevant in the realm of criminal defense as personal recording devices become more advanced and we increasingly post these recordings to YouTube and other social media websites.

A bystander who recorded video of an arrest in a Boston park was arrested for violating a state wiretapping law. The charges were later dropped, but the bystander filed a constitutional tort suit alleging violation of his First and Fourth Amendment rights. The arresting officers filed a motion to dismiss, saying they were entitled to qualified immunity that enables government officials to avoid liability if they don't violate a clearly established law. A federal district court denied the officers' claim. Last August, the 1st Circuit Court of Appeals at Boston ruled the officers had violated the bystander's clearly established constitutional right to video-record the police performing duties in a public place.

Similar cases have played out across the country. In Oregon, Beaverton police arrested a man and seized his cellphone after he recorded the arrest of a friend at a bowling alley. Another incident like it happened in Portland. Those arrests and the Beaverton man's resulting settlement in a federal lawsuit prompted that city's police chief to issue a statement about his department's stance on the video and audio recording of police activity. He said he believes his officers can arrest people who record private police conversations without permission. You could be handcuffed and taken to jail, depending on the officer and his interpretation of the law. But the likelihood of such an arrest, the chief said, "is pretty low."

Oregon's eavesdropping laws are complex and intended to ensure privacy. But in most police encounters with the public, there's little to no expectation of privacy. And holding out a cellphone is generally enough notice that police activity is being recorded, so in most cases that doesn't violate the law. Just don't expect police to appreciate their close-up.

Source: ABA Journal, "Good Cop, Bad Citizen? As Cellphone Recording Increases, Officers Are Uneasy," David L. Hudson Jr., March 1, 2012

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