-
If you enjoy the forum please consider supporting it by signing up for a NES Membership The benefits pay for the membership many times over.
-
Be sure to enter the NES/MFS May Giveaway ***Canik METE SFX***
Feel free to record Boston police officers in public
- Thread starter bazfoo
- Start date
- Joined
- May 17, 2008
- Messages
- 16,975
- Likes
- 2,821
OK, so I have been getting texts and tweets asking me about this. There is NOTHING new about this ruling, at least regards the recording issue. As Half Cocked has been trying to drill into people lately, there is nothing wrong with OPENLY recording cops or anyone else who are speaking in normal voice in public. By being in public, they are forfeiting their privacy. This is inline with 4th Amendment thinking.
In technical terms, the above is 3rd party recording that is not considered 3rd party eavesdropping because there is no REP (reasonable expectation of privacy). This ruling is in line with Comm v. Hyde.
Now, what this ruling DOES bring as new is the cops who think that they have veto power over your OPEN recording of them are now on notice, in federal court you have zero shelter from the liability of arresting someone because you don't like that they are recording you in public. This is new. The cops are not being granted qualified immunity and are on the hook for the damages of denying Glik his rights by improperly arresting him. That is a step in the right direction.
The problem here is if you are recording your interaction with a cop, what does that cop have to do to stop your recording? "Detain" you, that is what. Once they do, for their "safety" of course, they now control your recording equipment and can turn it off. Nothing in the above ruling changes this. They can do this, beat you to a pulp, or just ignore you to illustrate both extremes, and there will be no record of it.
What has not changed is Comm v. Hyde which makes 2nd party recording a privacy issue. This is not the case in 38 other states but here in MA, people are presumed to have a REP right from secret recording even when the recorders are privy to what is being said. That is absurd if you dissect it, but that is where Hyde dropped us. So for an example, if party A has a conversation with B, A can't record it because B supposedly has a REP privacy right yet A has heard everything B said. They were having a conversation for christ's sake. B gave up their privacy to the statements once they engaged in said conversation. So A can detail the conversation to whomever will listen but if B denies what was said or that the conversation even took place, it becomes a he said, she said situation. Now, who does this protect? It protects B. It protects liars, cheats and thieves. Because it allows them to lie about what took place. This is why Boudrie always quotes the part of Hyde where they SJC basically acknowledges this by stating to allow surreptitious recording of cops will allow the citizens to monitor and find corruption.
In technical terms, the above is 3rd party recording that is not considered 3rd party eavesdropping because there is no REP (reasonable expectation of privacy). This ruling is in line with Comm v. Hyde.
Now, what this ruling DOES bring as new is the cops who think that they have veto power over your OPEN recording of them are now on notice, in federal court you have zero shelter from the liability of arresting someone because you don't like that they are recording you in public. This is new. The cops are not being granted qualified immunity and are on the hook for the damages of denying Glik his rights by improperly arresting him. That is a step in the right direction.
The problem here is if you are recording your interaction with a cop, what does that cop have to do to stop your recording? "Detain" you, that is what. Once they do, for their "safety" of course, they now control your recording equipment and can turn it off. Nothing in the above ruling changes this. They can do this, beat you to a pulp, or just ignore you to illustrate both extremes, and there will be no record of it.
What has not changed is Comm v. Hyde which makes 2nd party recording a privacy issue. This is not the case in 38 other states but here in MA, people are presumed to have a REP right from secret recording even when the recorders are privy to what is being said. That is absurd if you dissect it, but that is where Hyde dropped us. So for an example, if party A has a conversation with B, A can't record it because B supposedly has a REP privacy right yet A has heard everything B said. They were having a conversation for christ's sake. B gave up their privacy to the statements once they engaged in said conversation. So A can detail the conversation to whomever will listen but if B denies what was said or that the conversation even took place, it becomes a he said, she said situation. Now, who does this protect? It protects B. It protects liars, cheats and thieves. Because it allows them to lie about what took place. This is why Boudrie always quotes the part of Hyde where they SJC basically acknowledges this by stating to allow surreptitious recording of cops will allow the citizens to monitor and find corruption.
Last edited:
Judge Young is a good guy - I am sure we don't agree on everything, but for the most part "clear and level headed" is exactly what I'd expect from him.
The SJC and the 1st Circuit Federal Courts have NOTHING to do with eachother (either judicially, ethically, practically or otherwise).
The 1st isn't perfect by any stretch, but it's not the SJC - though even the SJC has said _some_ of the right things about this (as Terraformer notes above).
The issue is when it comes to anything 2A, the SJC is broken and has plainly stated they do not feel bound by the jurisprudence of the Supreme Court. That's only going to get worse with the recent appointment to the bench...
Thank you Judge Young... Keep the good law coming...
The SJC and the 1st Circuit Federal Courts have NOTHING to do with eachother (either judicially, ethically, practically or otherwise).
The 1st isn't perfect by any stretch, but it's not the SJC - though even the SJC has said _some_ of the right things about this (as Terraformer notes above).
The issue is when it comes to anything 2A, the SJC is broken and has plainly stated they do not feel bound by the jurisprudence of the Supreme Court. That's only going to get worse with the recent appointment to the bench...
Thank you Judge Young... Keep the good law coming...
OfficerObie59
NES Member
- Joined
- May 3, 2009
- Messages
- 5,419
- Likes
- 1,899
This.
Or this: if your phone and the video you shot contains evidence of the offense, the cops can seize your phone and then obtain a warrant for the evidence therein. In the case at bar, this wouldn't apply as it appears to be a drug arrest that already occured and video of the arrest itself is not necessarily evidence of the underlying crime that a person is being arrested for.
They don't feel bound because they weren't bound.
State supreme courts are the absolute authority when it comes to their states' laws. If you at all believe in state soverignty, then the SJC had the absolute right to make their own decision prior to McDonald. Now, if they either throw in the towel or decide to uphold Patterson, then you're absolutely correct.
Don't get me wrong, the SJC uses plenty of disengenous reasoning in their gun rights opinions--like their originalism argument in Runyan or their comment that they were "bound" by Criukshank, but I think the criticism you note about that specific comment is misplaced.
Last edited:
inerlogic
NES Member
but how can you have REP on a city street, or a public park? you can't expect privacy in public....
the wiretapping law was meant for just that.... surreptitious recording of private conversations, in private with a reasonable expectation of privacy.... i can't record a anyone talking to me in my home, or over the phone.... but if we're on a sidewalk, anyone walking by can hear what's going on.... cops need to get it into their thick skulls and into their tiny brains that they aren't above the law, and we the people, as their employers, are allowed to keep an eye on em....
- Joined
- Apr 24, 2005
- Messages
- 47,565
- Likes
- 33,631
The federal courts are an entire different world, and seem more concerned about following the law and not being overruled by another court than the courts within Massachusetts that seem to have a greater than expected number of benches occupied by marsupials.
Without recording, that person with the CCW in the infamous Ohio traffic stop would be fighting an uphill battle against a "failure to disclose" charge and the investigation would have commended the officer for defusing a dangerous situation without gunfire.
OfficerObie59
NES Member
- Joined
- May 3, 2009
- Messages
- 5,419
- Likes
- 1,899
Those with thick skulls and tiny brains also tend to overgeneralize those who work in a particular profession and might actually agree with their points of view...
Right on.
Every BPD officer I've ever talked to about this (that's three) and my relative is generally in favor of being recorded, because it's evidence of his professional conduct that might help protect him from frivolous suits by criminals alleging misconduct.
My relative had a youtube video of him talking to a demonstrator within three months of taking the job.
Last edited:
- Joined
- Apr 24, 2005
- Messages
- 47,565
- Likes
- 33,631
Does the lack of qualified immunity mean that these police officers will pay any damages awarded personally, or does their employment/union status mean that they will be reimbursed for any judgement against them?
Let's say 99.999% of police want to be recorded and agree with the viewpoints here. Are you going to stand up for me when that .001% arrests me for videotaping him/her? Absolutely not.
Its not a personal attack on you, just saying until cops start weeding out the ones that manipulate the laws into saying what they want them to say, these overgeneralizations will continue. As far as I am concerned the police don't seem to mind the public having this view of them. If they had a problem with it, it would be dealt with. Too busy training on the best way to kick my door in I suppose.
inerlogic
NES Member
Generalizations are generalizations for a reason..... And just as a few bad apples DON'T spoil the bunch, a few good apples don't make 'em all good.... As someone who has never been in trouble with the law... Never been arrested, etc... You'd think i'd have a generally positive view of police in general, and while i do know quite a few good cops at the local, state and federal level.... I've run into far more who were total tool bags with over-inflated egos and senses of worth....
Just assume i'm not referring to "the good guys" when i generalize.....
From my HTC EVO via Tapatalk
Just assume i'm not referring to "the good guys" when i generalize.....
From my HTC EVO via Tapatalk
inerlogic
NES Member
Seizure of recording equipment and deletion of recordings presents a real problem for the police as it invariably is the act of destroying evidence. Either evidence of police misconduct in their recorded actions or evidence of interfering with the exercise of 1A rights.
- Joined
- Apr 24, 2005
- Messages
- 47,565
- Likes
- 33,631
It's a matter of public confidence, and it only takes a VERY small percentage to undermine that confidence. Just imagine if you are told a particular brand of soup only has botulism in 1 out of 10000 cans. Would you still buy it because a few bad apples don't spoil the bunch, or would it erode your trust in that product.
Or, in the case of MA, destruction of evidence that the crime of wiretapping has been committed.
- Joined
- Apr 24, 2005
- Messages
- 47,565
- Likes
- 33,631
Didn't they already have 2 thrown back at them on this issue post McDonald?
I am not holding my breath with the SJC on this issue.
- Joined
- May 17, 2008
- Messages
- 16,975
- Likes
- 2,821
I haven't read the briefs filed in these cases but someone else did and he noted something. Lisa Maki, who is Boston's counsel in Hightower, wrote her law school note (think thesis) on this very topic. http://www.righttorecord.org/?p=448
She also represented Boston in the Glik case above and the person in that blog post was rather impressed by her pleadings in the Glik case. Small world.
She also represented Boston in the Glik case above and the person in that blog post was rather impressed by her pleadings in the Glik case. Small world.
- Joined
- Jan 30, 2008
- Messages
- 3,435
- Likes
- 401
![[smile]](/xen/styles/default/xenforo/smilies.vb/001.gif "Smile [smile]")
Good!!!!
Ummm..... You people are easy to impress.... This is not new nor is it surprising nor does it change anything.
![[rolleyes]](/xen/styles/default/xenforo/smilies.vb/042.gif "Roll Eyes [rolleyes]")
- Joined
- Nov 27, 2010
- Messages
- 513
- Likes
- 74
Ummm..... You people are easy to impress.... This is not new nor is it surprising nor does it change anything.
Can you elaborate?
- Joined
- Jan 30, 2008
- Messages
- 3,435
- Likes
- 401
Because this court ruling did not change anything. It is like getting excited because the sun came up in the morning.
- Joined
- Jan 30, 2008
- Messages
- 3,435
- Likes
- 401
The court ruling was about whether the lawsuit would be allowed continue. The court simply ruled that in this case the officer does not qualify for "Qualified Immunity" because the arrest was unconstitutional. The lawsuit will now continue on and the officer can now be subject to personal financial loss. The ruling did not change any laws.
It did not "change" any laws, but it removed immunity from officers behaving in this way in the future. The (prior) closure of this avenue had a profound effect on the ability of citizens to seek remedy in such cases. The letter of the existing law may not have changed, but this opinion will change the interpretation of it.
The mere exposure of officers and their departments to such liability without the shield of immunity will indeed change behavior (for the better) in the future.
As always, the vast majority of officers do not engage in the sort of thugary we've seen (repeatedly) on the net in this regard, but the fact remains that once is too often.
As with any law, it does not stop those determined to bring harm to others and/or abuse their office, but every step the system takes to punish and/or remove barriers to punishment serves as both a deterrent to future abuse as well as a means of removing abusers from circulation.
- Joined
- Jan 30, 2008
- Messages
- 3,435
- Likes
- 401
That immunity has always been removed when the underlying arrests were ruled to be of such a nature that a prudent person would deem them to be unconstitutional. Again this is not news.
Yes, but the precedent set here provides specific coverage of a scenario that has been coming up more and more lately with the prevalence of "video equipment" (cell phones). Every step the law takes is colored by its previous steps.
Cases which cannot be distinguished from this one will now reference this decision and increase the likelihood of the same outcome.
Unless they are insane, officers and PDs will educate themselves not to repeat the mistakes of the arresting officers in this case to avoid liability. As such - things will change.
Last edited:
- Joined
- Jan 30, 2008
- Messages
- 3,435
- Likes
- 401
Ok... I guess we agree then. What has always been legal is still legal and it is good that they ruled that it was legal to remind us all that it is still legal.
There... I see the significance...
![[wink]](/xen/styles/default/xenforo/smilies.vb/002.gif "Wink [wink]")
Similar threads
