The war on cameras

It has never been easier—or more dangerous—to record the police

Michael Allison, a 41-year-old backyard mechanic from southeastern Illinois, faces up to 75 years in prison for an act most people don’t realize is a crime: recording public officials.

Allison lives in Bridgeport, Illinois, and often spends time at his mother’s house in Robinson, one county to the north. Both towns have abandoned property (or “eyesore”) ordinances prohibiting the parking of inoperable or unregistered vehicles on private property except in enclosed garages. These rules place a substantial burden on hobbyists like Allison; to obey the law he must either build a garage—which he says isn’t an option, given his property and his income—or register, plate, and pay insurance on every car he fixes up, even though he never drives them on public roads. So Allison kept working on his cars, and the city of Bridgeport kept impounding them: in 2001, 2003, and 2005.

In 2007 Allison filed a lawsuit against the city, alleging the law was a violation of his civil rights and a scheme to collect revenue through impound fees. He then resumed tinkering with unregistered vehicles in his mother’s driveway in Robinson. By Allison’s account, police officers in Robinson began harassing him with threats of fines or arrest for violating that town’s ordinance, though Allison alleges the harassment was personal—retaliation for his lawsuit back in Bridgeport. That’s when he began recording his conversations with cops.

In late 2008, Allison went to the Robinson police station, tape recorder in hand, and asked the chief to tell his officers either to name the law he was violating and issue him a citation or leave him alone. Not long after, two Robinson police officers showed up at his mother’s property and, while he was working on his mother’s car in her driveway, wrote Allison a citation for violating the eyesore ordinance. Allison openly recorded the conversation with a digital recorder. A court date was scheduled for January 2010.

The day before the trial, Allison went to the Crawford County Courthouse to request a court reporter for the proceedings. “If they were going to convict me of this bogus ordinance violation, I wanted to be sure there was a record of it for my lawsuit,” he says. As he spoke with Crawford County Circuit Court Clerk Angela Reinoehl, Allison showed her his digital recorder, although he says in this instance he wasn’t recording. “I held out the tape recorder to make it clear that if they weren’t going to make a record of this ridiculous farce, I was going to make sure I had one,” he says.

Reinoehl denied the request, but Allison’s promise to record the proceedings apparently came through loud and clear. Just after he walked through the courthouse door the next day, Allison says Crawford County Circuit Court Judge Kimbara Harrell asked him whether he had a tape recorder in his pocket. He said yes. Harrell then asked him if it was turned on. Allison said it was. Harrell then informed the defendant that he was in violation of the Illinois wiretapping law, which makes it a Class 1 felony to record someone without his consent. “You violated my right to privacy,” the judge said.

Allison responded that he had no idea it was illegal to record public officials during the course of their work, that there was no sign or notice barring tape recorders in the courtroom, and that he brought one only because his request for a court reporter had been denied. No matter: After Harrell found him guilty of violating the car ordinance, Allison, who had no prior criminal record, was hit with five counts of wiretapping, each punishable by four to 15 years in prison. Harrell threw him in jail, setting bail at $35,000.

Allison’s predicament is an extreme example of a growing and disturbing trend. As citizens increase their scrutiny of law enforcement officials through technologies such as cell phones, miniature cameras, and devices that wirelessly connect to video-sharing sites such as YouTube and LiveLeak, the cops are increasingly fighting back with force and even jail time—and not just in Illinois. Police across the country are using decades-old wiretapping statutes that did not anticipate iPhones or Droids, combined with broadly written laws against obstructing or interfering with law enforcement, to arrest people who point microphones or video cameras at them. Even in the wake of gross injustices, state legislatures have largely neglected the issue. Meanwhile, technology is enabling the kind of widely distributed citizen documentation that until recently only spy novelists dreamed of. The result is a legal mess of outdated, loosely interpreted statutes and piecemeal court opinions that leave both cops and citizens unsure of when recording becomes a crime.

‘It Just Depends on the Circumstances’

A national debate over recording on-duty police officers erupted in 2010 after two high-profile incidents in Maryland.

The first was in March, shortly after the University of Maryland men’s basketball team beat Duke. Among the Maryland students who spilled onto the College Park campus to celebrate were Jack McKenna and Benjamin Donat. As the two capered down the street with other Terps fans, they were stopped by two officers from the Prince George’s County Police Department on horseback. Seconds later, three additional riot police confronted McKenna and Donat on foot. McKenna was soon arrested and charged with assault and resisting arrest.

According to police reports, McKenna confronted the officers, verbally provoked them, assaulted them, and then fought when they tried to detain him. But several students at the scene captured the incident on their cell phone cameras. In those videos, later posted on the Internet, McKenna appears to do nothing to provoke the police. Instead, the riot cops stop McKenna, throw him up against a wall, and begin beating him with their batons. Attorney Christopher Griffiths, who is representing both students, says they suffered cuts, contusions, and concussions. After the videos appeared on the Internet, Prince George’s County suspended four of the officers, and the charges against McKenna were dropped.

The second incident came on April 13, about the same time McKenna’s case began to make national news. Maryland State Trooper David Uhler pulled over motorcyclist Anthony Graber for speeding and reckless driving. Graber had a video camera mounted to his helmet that was recording at the time of the stop. Uhler, dressed in street clothes, emerged from his unmarked car with gun drawn, yelling. Graber was given only a traffic ticket, but he was miffed at Uhler’s behavior. So he posted the video on YouTube. Days later, Maryland State Police conducted an early-morning raid on Graber’s home, held Graber and his parents for 90 minutes, confiscated computer equipment, arrested him, and took him to jail.

Graber was charged with two felonies. The first was violating Maryland’s wiretapping law by recording Uhler without the trooper’s consent. The second was “possession of an intercept device,” a provision in the same law that was intended for bugs and wiretaps but in this case referred to Graber’s video camera, a device that is perfectly legal to own and use in just about any other context. Thanks to legislation written to prevent the surreptitious interception of communications, Graber faced up to 16 years in prison for recording a cop during a public traffic stop.

Wiretapping statutes apply to audio recordings, with or without video. Maryland is one of 12 states with a wiretapping law that requires consent from all parties to a conversation for someone to legally record it. But in 10 of those 12 states, including Maryland, the statute says a violation occurs only when the offended party has a reasonable expectation that the conversation is private. This privacy provision prevents people who record public meetings or inadvertently pick up conversations while shooting video in public from accidentally committing felonies. Civil liberties advocates argue that on-duty police officers, like people attending city council meetings or walking down a public street, do not have a reasonable expectation of privacy. For Graber to be convicted under Maryland’s wiretapping law, a prosecutor would have to argue that Uhler—a police officer who had pulled over a motorist, drawn his gun, and yelled at the guy on the side of a busy highway—had a reasonable expectation that the encounter would remain private.

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