Activist victorious after catching cops on camera

The very excellent Harvey Silverglate writes in the Boston Phoenix about Simon Glik, a Massachusetts attorney who ended up in handcuffs, charged with "wiretapping," when he recorded what he considered an excessively forceful arrest with the camera function on his cell phone.

Justice Mark Summerville of the Boston Municipal Court subsequently dismissed all charges against Glik, saying his monitoring of the incident "was not a secret recording and, therefore, not the type of conduct that the legislature sought to prevent with the wiretap statute." Summerville also rejected a spurious "disturbing the peace" charge against Glik.

Silverglate applauds the ruling, but warns that it's not enough to protect similar citizen activists in the future.

Summerville’s decision is good news for Glik, who had, ironically, been seeking a job as a prosecutor, but who has had difficulty getting hired — despite graduating at the top of the New England School of Law class of 2006 — because of the outstanding criminal charges. Even so, neither the Hyde opinion nor Summerville’s decision is likely to stop police in the future from arresting citizens who record their misconduct.

The explicit statement in Hyde, that the law prohibits only secret recordings, creates a perverse incentive for cops to exaggerate or lie about whether a citizen was surreptitiously recording them in order to obtain a conviction in future cases. The small size of cell-phone cameras makes it easy for a cop to claim that at least part of the recording was done before the police noticed. And if it comes down to an officer’s word against the citizen’s, who do you think wins?

Citizens who want to document police misconduct need more protection than the statute, the Hyde opinion, and Summerville’s Glik ruling provide. As long as state law prohibits secret recordings of police activity, there can be little effective deterrent to police abuse. Without evidence, citizens cannot credibly pursue complaints. Under Massachusetts’s Hyde standard, as Chief Justice Margaret Marshall pointed out in her vigorous dissent in that case, the Rodney King video taper (or a reporter in the same position) would have committed a crime by recording that infamous example of police brutality on a Los Angeles street.

Incidents of private citizens recording police misbehaving are becoming increasingly common in the cell phone and YouTube age. As police become more sensitive to the likelihood that their conduct will be distributed to critical eyes over the Internet, at least some of them will use any legal angle they can to prevent recording of their activity or to seize any recordings after the fact.

Anything short of explicitly protecting such recording under law hands the worst cops the weapon they need to bludgeon anybody who might expose their misconduct.

Until then, we can only hope that people will continue to take their chances and record the police anyway -- and then run real fast if that's what it takes to put the recording before the eyes of the public.