PA Cop Refuses To Take Accident Report Unless Citizen Stops Recording; Cites 'Department Policy' [UPDATED]
from the those-enforcing-the-law-are-the-best-at-twisting-the-law dept
It's 2013, and despite oft-abused wiretapping laws being found unconstitutional when applied to recording police and new policies being issued to deter law enforcement officers from persecuting/prosecuting camera-wielding citizens, further incidents occur daily showing many PDs just aren't willing to cede this battle yet.
In this instance, a Lancaster, PA police officer simply walked away from taking an accident report because he objected to being filmed.
A Pennsylvania cop responding to a report of an accident refused to talk to the citizen unless his friend turned off the camera.Is it actually against departmental policy for Lancaster police officers to be recorded while performing their public duties (in public)? Well, that all depends on how you translate Pennsylvania's wiretap act, which aligns closely with the (formerly) onerous statute in place in Illinois. According to this 2007 Lancaster PD policy manual update, Pennsylvania citizens have the right to record video but not audio, unless both parties consent.
The citizen insisted on his friend recording, so Lancaster police officer Philip Bernot walked back to his car and drove off, refusing to take the report.
The citizen said he called the desk sergeant to complain, but was told it is a departmental policy not to be recorded.
It starts out promisingly.
It is the policy of the Manheim Township Police Department to recognize the legal standing of members of the public to make video/audio recordings of police officers and civilian employees who are carrying out their official police duties in an area open to the public, and by citizens who have a legal right to be in an area where police are operating, such as a person’s home or business. However, this right does not prevent officers from taking measures to ensure that such activity and recording does not interfere or impeded with the officer’s law enforcement and public safety purpose.The right to record audio and video seems to be guaranteed, provided there's no interference of police business (a huge gray area), and would seem to cover the contentious recording that caused an officer to walk off the job, as it were. But later in the same statement, this guarantee is undercut by a reference to Pennsylvania's wiretap act, providing every Lancaster police officer with a very convenient out.
The courts have made a distinction between simply videotaping an officer and videotaping with audio. When a person is out in public, he or she is voluntarily presenting their visage to the public and therefore can have no expectation that someone may photograph that person’s actions. However, when a person engages in discourse with another, as provided in the Wiretapping and Electronic Surveillance Control Act, 18 PA C.S.A. 5701, et seq. (“Pennsylvania Wiretap Act”), that person is entitled to expect that the discourse will remain private and not be shared with others through a recording device unless specifically consented to by the person speaking.In order to ensure the state's (outdated) wiretap act isn't violated, those involved must jump through the following hoops.
If the officer would normally have an expectation of privacy and the officer observes the person being addressed audio taping or videotaping with audio, the officer may inform such person that he or she does not consent to the audio portion of the taping and request that the audio be shut off.Following up on a reported accident on a public street would seemingly eliminate any "expectation of privacy," even for audio. Officer Philip Bernot felt otherwise, and chose to read the policy as being heavily reliant on this phrase in the preceding paragraph:
However, when a person engages in discourse with another… that person is entitled to expect that the discourse will remain private and not be shared with others through a recording device unless specifically consented to…These two parts of the policy are at odds with each other and, indeed, with the opening paragraph that states the department recognizes the public's right to record video and audio of public servants performing their duties in public -- all of which Officer Bernot was doing, right up until he decided he wouldn't.
Pennsylvania's wiretap law provides plenty of exceptions for law enforcement and certain citizens to record audio with only the "consent" of the recorder (telemarketers, people discussing work with contractors) but it provides nothing specific regarding the general public recording public citizens. On the bright side, the wiretap law is set to expire at the end of this year (it was last amended in 2002 -- problematic enough given the exponential increase in citizens who carry cameras everywhere they carry their phones). Unfortunately, it looks as though renewing it completely intact is an option ("...unless extended by statute").
But is the Lancaster PD's contradictory reading of the wiretap statute accurate? Does it actually mean the public has no right to record audio of police officers without their consent, while completely free to record video and take photos? The Reporter's Committee for Freedom of the Press has a rundown on every state's applicable recording statutes and it comes to this conclusion regarding Pennsylvania's.
It is unlawful to record an “oral communication,” which is defined as “any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation” without first obtaining the consent of all parties engaged in the conversation. 18 Pa. Cons. Stat. Ann. § 5702. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.If a journalist is allowed to record "oral communications" in public without consent, it stands to reason citizens should be allowed to do the same. Lancaster PD may be deterring recordings by providing a confusing mess of a policy, but its interpretation of the wiretap law is flawed. The PD may have its own departmental policy, but it's superseded by state law governing recordings.
The constitutionality of this law won't be stress tested until there are multiple incidences of abuse, unfortunately. In Illinois, it took several high-profile cases of police and prosecutorial abuse before it reached the critical level needed to prompt a ruling from the Supreme Court. A single case, properly routed, could have the same effect, but there's an equal likelihood the courts would view it as a departmental anomaly rather than a flaw with the underlying law. On the other hand, Illinois' nearly-identical wiretap law has been struck down, meaning there's some sort of comparative ruling, even if there's not actual precedence.
The Lancaster PD is misusing the wiretap statute, one that the original legislators never meant to be utilized as a shield against public accountability. Officer Bernot's refusal to perform his duty, whether "justified" by a bad statute or not, was completely immature.
[UPDATE: A commenter points out that the Lancaster Police Dept. apologized for Officer Bernot's actions and sent him back out to take the accident report.]
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: accident report, eavesdropping, pennsylvania, police, recording, video
Reader Comments
Subscribe: RSS
View by: Time | Thread
Philip Bernot must not know how to do his job
[ link to this | view in thread ]
Post it on Youtube
What is a cop doing leaving the scene if he believe an offense is being committed.
If he believe being filmed is illegal he should of arrested him and let the courts decide.
But upon working out a crime was being committed (the filming), he withdraws his services !!!
So police are not allowed to pick and choose what is legal or not ??
We all know the police are very low on the human food chain, threat and intimidation and ignorance of the law is their tools of the trade.
Basically cops are the school yard bullies when they grow up.
[ link to this | view in thread ]
perfect crime
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Post it on Youtube
[ link to this | view in thread ]
Who is a Journalist?
Well, sounds like his friend with the camera was a journalist to me. Unless PA has a special definition that wasn't mentioned?
[ link to this | view in thread ]
It is Offical
[ link to this | view in thread ]
[ link to this | view in thread ]
the most surveilled city in the nation
Second, and what makes this doubly disgusting Lancaster PA, home of the Amish, "is considered the 'most surveilled city in the nation' due to its proliferation of public surveillance cameras in a town of only 55,000 people."
http://www.dailypaul.com/102591/lancaster-pa-most-surveilled-city-in-nation
There is literally a camera on every corner in the "main" part of the city (downtown). I'm not joking.
"We'll record everything you do all the time but don't even think about recording us."
Assholes.
PS: Otherwise, Lancaster PA is a very nice place to live. :-/
[ link to this | view in thread ]
Lancaster != Manheim
[ link to this | view in thread ]
[ link to this | view in thread ]
And so it begins...
The important thing is for this to be addressed in the courts, not on blogs. Too bad everyone is fighting for the "rights" of Mexican nationals and homosexuals who have vast support that their status is that of "normal" behavior and not a medical condition.
I don't really want to derail the subject but it's not like anything is happening anyway.
[ link to this | view in thread ]
Re: the most surveilled city in the nation
Given the rest of your comment, I can't help but think of the punchline/joke 'But other than that, how did you enjoy the play Ms. Lincoln?' after reading that last line.
[ link to this | view in thread ]
Re: And so it begins...
[ link to this | view in thread ]
[ link to this | view in thread ]
Update
http://lancasteronline.com/article/local/904093_Video-of-Lancaster-city-police-response-sparks -First-Amendment-rights--debate--.html
[ link to this | view in thread ]
Re: Lancaster != Manheim
[ link to this | view in thread ]
does that also negate anything i say being used against me in a court of law?
after all, when you cuffed me officer, i thought we were just two good ol' boys shooting the the shit. I had an expectation of privacy, when i admitted to snorting all that cocaine and eating those nuns.
[ link to this | view in thread ]
Fascists Police state
look what happened to the officers shown brutalizing Rodney King.
states make up laws that take away freedoms guaranteed under the Constitution, knowing full well they they can't have bad cops being video taped as it costs them millions of dollars.
with that said im saying not all cops are bad but there ARE bad cops.
attorney generals like to play word games with Constitutional rights involving video taping in public areas , all the while allowing police officers do the very same thing in video taping people they arrest(as long as it shows the criminal breaking the law and not the officer breaking the law)
look at the case in Californian where 9 officers beat and killed a man who was passed out, the police held people ransom in their homes under treat of arrest unless they turned over their cell phones, and the proceeded to destroyed all videos showing how the officers murder the guy.
[ link to this | view in thread ]
Re: the most surveilled city in the nation
Sounds like the UK.
[ link to this | view in thread ]
Police... abusing the law...
Hmm... sounds alot like... well... EVERY FREAKIN LAW ENFORCEMENT AGENCY! Laws are all fine and good when they can be used to their advantage, but easily and quickly ignored when they pose the slightest inconvenience or accountability to them.
And they say we don't live in a police state.
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
Step 2: You are now unarrestable in PA
[ link to this | view in thread ]
Re: And so it begins...
I'm glad you didn't let that get in the way of a good ole racist and homophobic tangential screed. Too bad you didn't mention legitimate rape, you only needed misogyny for the hat trick!
[ link to this | view in thread ]
A police officer's sworn duty is to serve and protect. By law they may be able to have a right to privacy, but just because someone violates that right doesn't mean that said officer is excused from their line of duty.
What it does mean is that if the recording is used as evidence against them in a court of law, it should be dismissed. Or if someone posts it to YouTube or something, a case is brought to a court of law to determine if they invaded the privacy of said officer.
All of this is undertandable. But having a policy telling police officers to neglect their duty to serve and protect simply because they are being record is a disservice to the community they are supposed to protect. It's a bullying technique to merely get what they want. This should be a lawsuit and a court of law should straighten this out before this becomes the norm.
[ link to this | view in thread ]
I think I'm setting the bar too low
[ link to this | view in thread ]
Also in Other PA Cities
[ link to this | view in thread ]
Cops are the enemy
[ link to this | view in thread ]
Re: Update
[ link to this | view in thread ]
Re: Update
[ link to this | view in thread ]
funny
[ link to this | view in thread ]
[ link to this | view in thread ]
test
[ link to this | view in thread ]
[ link to this | view in thread ]
appropriate response
"On a professional level, it's perfectly ok for you to record me. However on a personal level, I'm uncomfortable with it, and I'd prefer if you didn't".
[ link to this | view in thread ]
proper response
2) demand the douchebag do their job
3) if they don't sue them for negligence
[ link to this | view in thread ]
Recent Pennsylvania wiretap case
[ link to this | view in thread ]
Re: the most surveilled city in the nation
In general, people are much kinder and more polite and just generally nicer both downtown (Puerto Ricans dominate) AND in the suburbs than they are in say, the Bronx, NY.
That said, by legal mandate, I believe that every single police encounter should be recorded audiovisually to the greatest extent feasible. That would protect the very many good cops here, weed out the bad ones, protect the general (minority) populace downtown, and also eviscerate the very many arguments of criminals contending innocence when they're objectively not innocent. There is no reasonable expectation of privacy in public, so let's run with that.
[ link to this | view in thread ]
"[UPDATE: A commenter [THE COP HIMSELF] points out that the Lancaster Police Dept. apologized for Officer Bernot's actions and sent him back out to take the accident report.] "
even though the department said it was not policy to be recorded. What a bunch of bunk. We the cops (typically lower IQ than the mean, and laden with behavioral issues) CAN record you, because you might not being doing something just right.. However You can't record us being are shetee selfs, with left over childhood baggage because the video just might show us not doing our jobs (that a toddler could understand) correctly. That's because we aren't that smart, AND we break our own laws and have baaad tempers.. Nice POS arguments for someone's privacy. Obviously no one's privacy is breached until a recording is replayed in a situation deemed inappropriate. So it doesn't have to be replayed, and would be also boring on youtube if the cop just did his job right. Also after the fact the cop could be asked permission to play the video. Him denying this, speaks volumes. But as a public servant he should look and behave in a way that makes him look good in public. These stupid laws are written by people that simply have power money and weapons to protect them when they break all the laws they swear to uphold.
[ link to this | view in thread ]
Re: Re: the most surveilled city in the nation
It's amazing what nicer weather, space and scenary can do for one's mood. Put a Puerto Rican in the middle of Jersey with a bad cop and watch his feelings change.
[ link to this | view in thread ]