Videotaping Police in North Carolina Might Be Illegal

by admin on August 18, 2010

But state wiretap law probably does not apply to routine stops

By Sara Burrows | Carolina Journal

RALEIGH — Attorney General Roy Cooper will not say whether it is legal to videotape police officers in public places in North Carolina.

At least one local prosecutor suggests it shouldn’t be, though there’s enough ambiguity in the law to leave some civil liberties advocates leery.

The case of the Maryland motorcyclist facing 16 years in prison for videotaping an “out of control” police officer has spurred a national debate over the legality of the practice.

Anthony Graber was speeding down the highway on his motorcycle when an off-duty state trooper in an unmarked vehicle cut him off, forcing him to the side of the road. The trooper, dressed in plain clothes, got out of his car, pointing his gun at Graber and yelling before identifying himself as “state police.”

Graber caught the incident on a video camera attached to his helmet and posted the video on YouTube. After the video went viral, police searched Graber’s house, seized his computers, and put him in jail for 26 hours.

Prosecutors say the audio portion of his video violates state wiretapping laws, though the state’s attorney general has issued an opinion (PDF) concluding that it’s hard to consider a police stop a private conversation, and that courts would likely say the wiretapping law would not apply.

Maryland is one of 12 states in which all parties must consent before a conversation can be recorded.

Had Graber been pulled over in North Carolina, he wouldn’t be facing prison time for his recording. North Carolina is a one-party consent state, meaning that it’s legal to record audio as long as one participant in the conversation is aware of it. On the other hand, it is illegal to eavesdrop: recording people without their knowledge if you are not a party in the exchange.

Amanda Martin, legal counsel to the North Carolina Press Association, said it is unlikely a recording made in a public place would be considered eavesdropping.

“Possibly, if someone slipped a microphone into a bush and left, that would be illegal,” Martin said.

Otherwise, she said, “the public and the media both have a First Amendment right to record whatever they can see with their naked eye [on] public property.”

Wake County District Attorney Colon Willoughby said there has to be an expectation of privacy for the eavesdropping law to apply.

“If police officers are conducting police work in a public place — in a traffic stop or a large public gathering — I don’t know why they’d have an expectation of privacy,” Willoughby said.

Recording a conversation between an officer and a person being arrested, with neither party consenting, could be a technical violation of the wiretapping law, he said, “but I can’t imagine a prosecutor would think that warranted prosecution.”

“Suppose you saw the police officer take some property from the person illegally, their wallet perhaps,” Willoughby said. “The value of being able to protect the public from the officer’s misconduct far outweighs the value of the nonconsensual recording.”

Gregg Leslie, legal defense director for Reporters Committee for Freedom of the Press, said the trend of “taping” police has exploded in the last few years.

“Having video capability on cell phones was less common five years ago, and unheard of 10 years ago,” Leslie said.

The advance in technology has led to an advance in citizen journalism, he said.

“It’s allowed journalists to report the news in a more prompt and authoritative fashion, because they have eyewitness accounts captured to electronic memory,” he said.

Police are afraid of this power, Leslie said, and it only makes sense that they’re trying to take it away.

Gov. Bev Perdue did not respond to requests for comment on this story.

Carolina Journal asked Cooper whether he thought citizens violated any law by videotaping on-duty police in public places. Spokeswoman Noelle Talley responded: “Our office can only provide legal opinions to government officials, so we will not be able to give you a legal opinion on this question.”

Sara Burrows is an associate editor of Carolina Journal.

{ 8 comments }

Fernando August 19, 2010 at 7:25 pm

Actually, it isn’t eavesdropping if you can be seen recording the parties involved. So, if you’re recording a police officer making an arrest, and you’re in plain view of them (in a location with no expectation of privacy, like a public street), then you are not breaking any laws.

EH August 19, 2010 at 8:09 pm

How do you get “might be illegal” from this reportage? A police officer’s interaction with the public does not suddenly acquire privacy once they are being observed. Public activities conducted in public by public servants.

Jim August 19, 2010 at 8:10 pm

The police record us at every turn but they don’t like it when the camera is turned on them. The story goes “If your not doing anything wrong, why do you care if your taped?” when police departments put video cameras on the streets. But video tape a police officer and get arrested or worse? Check out Carlos Miller page “Photography is Not a Crime” (www.carlosmiller.com) to see what is really going on.

Jim

auggie August 19, 2010 at 8:58 pm

North Carolina is a one party consent state. There is no way you could interpet recording an arrest as an illegal act. The AG should know this but then again we are talking agout north cacalaki.

Rhayader August 19, 2010 at 9:48 pm

This is a very misleading headline; it’s clear from the content of the article that, in fact, it is certainly not illegal to record on-duty police officers in North Carolina. In fact, it’s not even true that there’s an “expectation of privacy” clause — that’s something used in two-party consent states to void wiretapping laws when there is no reasonable expectation of privacy, even in the absence of consent from one party. So it does not even apply in a one-party consent state like NC.

It’s good that this topic is getting attention, as it should in no way be against the law to film publicly funded police forces on the job. But such a poor title only serves to undermine the important information provided in the article.

LJM August 19, 2010 at 10:18 pm

Usually headlines make complex issues sound simple, but I’m afraid this one does the opposite. There either is or isn’t a law on the books prohibiting the recording of police as they perform their public duties. That shouldn’t be too difficult to ascertain.

Julian August 19, 2010 at 11:48 pm

The title seems to say exactly opposite of the article.

Where is the article does it support the claim that videotaping anybody (including the police) in North Carolina might Be illegal?

There seems to be a bunch of “i don’t know”‘s or “no comment”‘s .. but nothing challenging the legality of it.

Ace_of_Spades August 20, 2010 at 2:38 am

The fact that North Carlina is a one-party consent state is not relevant with regard to recording in public and there is no expectation of privacy. A third party can record without consent of either party of the conversation, as long as there is no reasonable expectation of privacy. Of course, cops claim to have that expectation of privacy in public, which is silly. They just don’t want everyone to know they hate the general public almost as much as they hate criminals. But, expectation of privacy is tricky. Does the cop lose his/her expectation of privacy because he/she is in public or because he/she is a public servant or both? Does a private citizen lose his/her expectation of privacy because they are pulled over in public by a public servant? If a cop pulls you over and you have no problem having a conversation with him/her, is it my right to walk up and record your conversation? What if the cop doesn’t care, but you do?

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