I saw the video of Dave Ridley conversing with the cops who stopped him for carrying openly in Manchester.
(and BTW, awesome work! Better than watching Cops. I look forward to more such reporting.)In the video Dave identifies himself by name to the LEO, but refuses to produce written ID. I was curious as to whether this is really the law, so I looked into it a bit. There are two statutes implicated:
- Questioning and detaining suspects (http://www.gencourt.state.nh.us/rsa/html/LIX/594/594-2.htm)
- Loitering and Prowling (http://www.gencourt.state.nh.us/rsa/html/LXII/644/644-6.htm)
First, I note the loitering statute says "
Failure to identify or account for oneself, absent other circumstances,
shall not be grounds for arrest." From that, it doesn't sound like you have to even give your name to a LEO if there are no justifying "circumstances."
Next, I see that the circumstances in question are such as would warrant alarm for the safety of persons or property in the vicinity. As you can read in the statute (http://www.gencourt.state.nh.us/rsa/html/LXII/644/644-6.htm), one such circumstance is possessing property which would lead a reasonable person to believe a crime was about to be perpetrated.
Question: is it reasonable believe someone is about to perpetrate a crime simply because he's walking down the street with a pistol?Turning next to the "stop and identify" statute (http://www.gencourt.state.nh.us/rsa/html/LIX/594/594-2.htm), a LEO may demand your name, address, business abroad, and destination if the officer has reason to suspect you are committing, have committed or are about to commit a crime.
Question: Is walking down the street with a pistol reason to suspect you're involved in a crime?Of course, we would answer these questions in the negative. Now, I am in no position to give anyone advice nor criticism. I don't know if I would be courageous enough to do what Dave did, and I have nothing but respect and awe for his refusing to provide ID to the officer.
That said, I have this question for Dave: why did you give him your name at all? If you're going to make a point of asserting your rights in contradiction to a LEO's desire to obtain information about you, why not simply remain silent? Of course it increases the likelihood of arrest, but it doesn't seem like you are overly fearful of that eventuality, otherwise you would have produced written ID.
Whether openly carrying gives rise to reasonable suspicion of criminal activity is a question we would like to have determined. It may be that forcing the issue by being arrested and litigating it is the best way to settle it. Of course there may be less extreme approaches, such as requesting an opinion from the city attorney, but a judicial precedent would really provide powerful legal support in the event of future police stops.
<<is it reasonable believe someone is about to perpetrate a crime simply because he's walking down the street with a pistol?>>
folks will claim it is if no one ever does it, and stop claiming it is once it becomes common. So our job is to make it more common.
still, i only open carry when with friends or well dressed. i will try to do that more often. everyone else seems to be open carrying more often as well.
Quote from: mackler on August 14, 2007, 09:00 AM NHFT
Question: is it reasonable believe someone is about to perpetrate a crime simply because he's walking down the street with a pistol?
First, +1 to you for excellent research!
http://freestateblogs.net/nhgunfaq
Quote from: Sam Cohenthe New Hampshire Attorney General's office has made it clear that open carry is a right, and that another person's "annoyance and alarm" doesn't supersede that right.
Indeed, open carry is required by law unless you have permission from government authority.
Quote from: d_goddard on August 14, 2007, 09:24 AM NHFT
http://freestateblogs.net/nhgunfaq
Quote from: Sam Cohenthe New Hampshire Attorney General's office has made it clear that open carry is a right, and that another person's "annoyance and alarm" doesn't supersede that right.
This may be well worth the effort to get an official published AG's opinion on the subject. With the potential for increased stops of this type, it would be in the AG's interest to make an official declaration on the subject. Someone like Dave who has been stopped more than once might have good standing to ask for this type of opinion. Once established, it would be a powerful weapon to use during these confrontations.
Some AG's are funny, though and will only issue opinions on the request of a county or city prosecutor.
Why would a criminal openly carry a weapon in a holster like Dave to bring attention to themselves? Wouldn't it be more reasonable to suspect a crime was about to possibly be committed if the weapon were drawn rather than holstered?
Quote from: Sam Cohenthe New Hampshire Attorney General's office has made it clear that open carry is a right, and that another person's "annoyance and alarm" doesn't supersede that right.
I don't think that opinion is exactly on point. The question is not whether you have a right to open carry, the question is whether you have to identify yourself.
Also, Sam Cohen's article doesn't provide a source for that claim about the AG. Even if you think that opinion is what you need, you'll probably want to find out where, when, and exactly what the AG said.
Just for giggles, I earned some money for NHfree by clicking the top ad, which happened to be for policelink.com. ;D
Quote from: Malum Prohibitum on August 15, 2007, 12:45 AM NHFT
mack,
Where you able to find any case law? which might answer that question, or have people genuinely just not pushed this issue?
Well, obviously I haven't found a case that exactly answers the question, otherwise it wouldn't be a question. I have found a number of cases of interest, which I will describe here.
First, keep in mind that I just started looking into this yesterday, so this is only what I have found so far. Second, understand that although these are cases, they all arise out of statutes. Police cannot demand that you produce ID unless there's a statue allowing them to. Even then, the statute may be unconstitutional, hence these cases. With regard to the federal cases, keep in mind they are not from New Hampshire, so just because the statute in the case was unconstitutional doesn't mean the NH statute is also.
Federal Cases of InterestBrown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637 (1979)
Findlaw link (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=443&invol=47) | Justia link (http://supreme.justia.com/us/443/47/case.html) | Cornell Link (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0443_0047_ZO.html)
In this 1979 case, the Supreme Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. Absent that factual basis for detaining the defendant, the risk of "arbitrary and abusive police practices" was too great and the stop was impermissible.
Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855 (1983)
Findlaw link (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=461&invol=352) | Justia link (http://supreme.justia.com/us/461/352/case.html)
In this 1983 case, the Supreme Court invalidated a modified stop and identify statute on vagueness grounds. A California law required a suspect to give an officer "credible and reliable" identification when asked to identify himself. The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in "virtually unrestrained power to arrest and charge persons with a violation."
Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 124 S.Ct. 2451 (2004)
Findlaw link (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=542&invol=177) | Justia link (http://supreme.justia.com/us/542/177/case.html) | Cornell Link (http://www.law.cornell.edu/supct/html/03-5554.ZO.html)
New Hampshire Cases of InterestState v. Dodier, 135 N.H. 134, 600 A.2d 913 (1991)
State v. Graca, 142 N.H. 670, 708 A.2d 393 (1998) (http://www.nh.gov/judiciary/supreme/opinions/1998/graca.htm)
State v. Jaroma, 137 N.H. 562, 630 A.2d 1173 (1993)
State v. Licks, 154 N.H. 491, 914 A.2d 1246 (2006) (http://www.nh.gov/judiciary/supreme/opinions/2006/licks143.pdf)
State v. White, 119 N.H. 567, 406 A.2d 291 (1979)
State v. Gosselin, 117 N.H. 115, 370 A.2d 264 (1977)
State v. Landry, 117 N.H. 115, 370 A.2d 264 (1976)
State v. Gilson,116 N.H. 230, 356 A.2d 689 (1976)
State v. Nelson, 105 N.H. 184, 196 A.2d 52 (1963)
State v. Lavallee, 104 N.H. 443, 189 A.2d 475 (1963)
I'm going to see if I can find these cases online for free somewhere. I'll finish this post later...
The "papers please" problem of requiring an individual to identify him/herself has been upheld by the US supreme court in Nevada vs Hiibel (http://www.nvsupremecourt.us/info/news/index.php?contentID=52).
It sucks, but the only thing the court said is required is to verbally state your name (not even sure place of residence is required).
Another thing to get stricken from the books eventually, but for now, that's what da law is. :/
Quote from: penguins4me on August 15, 2007, 04:51 AM NHFT
The "papers please" problem of requiring an individual to identify him/herself has been upheld by the US supreme court in Nevada vs Hiibel (http://www.nvsupremecourt.us/info/news/index.php?contentID=52).
It sucks, but the only thing the court said is required is to verbally state your name (not even sure place of residence is required).
Another thing to get stricken from the books eventually, but for now, that's what da law is. :/
Only if there is a state law requiring it, as there is in Nevada. If NH lacks such a law, then you don't have to tell them.
Quote from: Malum Prohibitum on August 15, 2007, 04:00 AM NHFT
Im thinking, there might be a distinction between asking for ID or asking for a name, but maybe not.
Yes there is a distinction. The NH statute (http://www.gencourt.state.nh.us/rsa/html/LIX/594/594-2.htm) permits the latter, not the former.
Quote from: mackler on August 15, 2007, 02:51 AM NHFT
Police cannot ask you for ID unless there's a statue allowing them to.
They can *ask* you anything they want to. The real issue is if you are required under statute to answer or produce anything in response to that request.
Quote from: mackler on August 15, 2007, 07:12 AM NHFT
Quote from: Malum Prohibitum on August 15, 2007, 04:00 AM NHFT
Im thinking, there might be a distinction between asking for ID or asking for a name, but maybe not.
Yes there is a distinction. The NH statute (http://www.gencourt.state.nh.us/rsa/html/LIX/594/594-2.htm) permits the latter, not the former.
I don't have a problem giving 'name, address, business abroad and where I am going', but that is it. I will even be nice about it, and follow it up with some questions of my own. Maybe even a "nice to meet you, officer x"
I think Liko Kenny made a video of what not to do. Saying "you can't do this to me" is one of the things you shouldn't do.
Quote from: money dollars on August 15, 2007, 11:57 AM NHFT
I don't have a problem giving 'name, address, business abroad and where I am going', but that is it. I will even be nice about it, and follow it up with some questions of my own. Maybe even a "nice to meet you, officer x"
I think Liko Kenny made a video of what not to do. Saying "you can't do this to me" is one of the things you shouldn't do.
Yeah, I was just thinking how much unrequired convo. Dave gave the LEO, such as "I don't mean any disrespect," and "actually the law doesn't require me to produce written identification." I think if I ever had the balls to to try this sort of thing, the conversation would be something like:
LEO: May I talk to you for a moment, Sir?
Me: My name is Adam Mackler. I live at 123 Main Street. I am on my way to Murphy's Tap room.
LEO: I was just noticing you're carrying a firearm in public. You know that might alarm some people?
Me: My name is Adam Mackler. I live at 123 Main Street. I am on my way to Murphy's Tap room.
LEO: Do you have some identification I could see?
Me: My name is Adam Mackler. I live at 123 Main Street. I am on my way to Murphy's Tap room.
LEO: I understand that. I'm asking if you have a driver's license or some form of written ID so I can confirm what you're telling me.
Me: My name is Adam Mackler. I live at 123 Main Street. I am on my way to Murphy's Tap room.
etc.
The interaction might lead to my arrest, but (assuming an honest LEO) would result in a police report ideally suited to prevailing in court.
Quote from: Malum Prohibitum on August 16, 2007, 01:36 AM NHFT
At first glance, I think the issue comes down is what, in NH, is 'reasonable suspicion'. The ideal situation is to get a ruling, or otherwise legally binding opinion that says that legally open carrying a weapon is not grounds for reasonable suspicion absent other indicia of criminal activity.
Unfortunately if it hasnt been tested, in order to get in front of SCoNH, someone is going to have to refuse to identify himself at one of these stops, and get arrested.
Do we know what kind of charges could reasonably stick from such a scenario?
I believe you are going to have to ask the arresting officer what exact "reasonable suspicion" they have for stopping you initially. Presuming you get a coherent answer, at that point you are going to have to make a very quick decision about whether or not you want to test the constitutionality of the stated probable cause for the stop.
In Dave's case as I recall, the officer claimed that "some citizens were concerned" or some such vague reasoning. That it seems to me would have been the perfect opportunity to test the constitutional legality of the "reasonable suspicion" as part of the probable cause requirement.
Quote from: Malum Prohibitum on August 16, 2007, 01:36 AM NHFT
At first glance, I think the issue comes down is what, in NH, is 'reasonable suspicion'. The ideal situation is to get a ruling, or otherwise legally binding opinion that says that legally open carrying a weapon is not grounds for reasonable suspicion absent other indicia of criminal activity.
That would be a fact-dependent analysis. Just being in a "high crime" area could be an indicium of criminal activity. Additionally, the police might just happen to be on the lookout for a criminal who matches your description. That would definitely be reasonable suspicion.
Quote from: Malum Prohibitum on August 16, 2007, 01:36 AM NHFT
Do we know what kind of charges could reasonably stick from such a scenario?
I would start with false imprisonment (http://www.gencourt.state.nh.us/rsa/html/LXII/633/633-3.htm), if warranted add malicious prosecution, criminal restraint (http://www.gencourt.state.nh.us/rsa/html/LXII/633/633-2.htm), and/or official oppression (http://www.gencourt.state.nh.us/rsa/html/LXII/643/643-1.htm), and then maybe throw in some federal civil rights violations (http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001983----000-.html) just for good measure.
Quote from: mackler on August 15, 2007, 10:26 PM NHFT
Yeah, I was just thinking how much unrequired convo. Dave gave the LEO, such as "I don't mean any disrespect," and "actually the law doesn't require me to produce written identification." I think if I ever had the balls to to try this sort of thing, the conversation would be something like:
It is easy to take a reservation .... the whole point is to
hold a reservation.
Anyone can imagine the perfect way they will interact with the thugs when they finally stand up to them. Actually doing it is the important part.
Taking the next step is what it is all about.
Quote from: Russell Kanning on August 16, 2007, 05:40 AM NHFT
It is easy to take a reservation .... the whole point is to hold a reservation.
The Seinfeld theory of Civil dis?
exactly ... also applicable to all of life
Quote from: Russell Kanning on August 16, 2007, 05:40 AM NHFT
Anyone can imagine the perfect way they will interact with the thugs when they finally stand up to them.
I have to disagree with you there. I have a pretty good imagination, yet even I would never have imagined waving my hand in front of a cop's face. But I'm working on it.
For those interested, The Hiibel case, complete with video and legal documentation, is available on the Identity Project's website at:
http://papersplease.org/hiibel/ (http://papersplease.org/hiibel/)
If you're not familiar with the Identity Project, it's an organization that provides advice, publicity and legal assistance to those who find their rights infringed, or their legitimate activities curtailed, by demands for identification.
You can find out more at:
http://papersplease.org/who.html (http://papersplease.org/who.html)
The Hiibel case ended up going to the U.S. Supreme Court where Hiibel's conviction in the lower courts for failing to identify himself to a peace officer was upheld.
His defense primarily rested on the 4th Amendment and challenged the Constitutionality of a Nevada statute that requires an individual to provide their name to a peace officer upon request if the peace officer is conducting an investigation and has reasonable suspicion to believe the individual he/she is trying to identify has committed a crime.
The sheriff's deputy in this case had been notified by an anonymous caller that a man appeared to be hitting a woman sitting beside him in a truck being driven down the road. When the deputy arrived on scene, a truck matching the description was pulled off to the side of the road and Dudley Hiibel was standing outside the vehicle smoking a cigarette while his daughter was sitting in the cab.
While this wasn't discovered until later, Hiibel and his daughter had been arguing over whether or not she could continue to see her boyfriend and the daughter struck Hiibel in anger - not the other way around. Hiibel demanded that the truck, being driven by his daughter, be pulled over so he could get out and let things cool down.
When the deputy arrived, he immediately demanded that Hiibel identify himself. Hiibel wanted to know why. The deputy stated he was "investigating an investigation" which wasn't good enough for Hiibel who refused to comply. Eventually the deputy arrested Hiibel for non-cooperation. Another officer in the meantime had thrown Hiibel's daughter to the ground and pinned her there after she began protesting her father's treatment and tried to get out of the truck.
In the end, the Supreme Court upheld the Constitutionality of the statute and Hiibel's conviction based upon the rational that the statute is narrowly tailored by requiring reasonable suspicion and that the deputy had reasonable suspicion based upon the anonymous phone call reporting a physical altercation.
While I think the court's logic was faulty in this case for several reasons, the court did make it clear that reasonable suspicion was necessary before a peace officer could legally demand someone's name. The court also hinted that there were 5th amendment issues at play but since they weren't adequately addressed at the trial court level, their decision did not include a 5th amendment analysis.
It should also be noted that Hiibel was not required to show an ID in this case because he was not driving at the time the deputy arrived onscene. As such, he would have no requirement to even have an ID on his person, let alone show it on demand. The statute in question only requires a name.
I also have some experience with unreasonable identity demands by law enforcement.
I was stopped at a suspicionless joint task force roadblock in Southern Arizona in 2002 and was dragged out of my vehicle and arrested for failing to provide a drivers license on demand even though the cops admitted they had no reasonable suspicion of wrongdoing.
I fought the charges in court and they were dismissed with prejudice a year later. Shortly thereafter, I turned around and filed a civil rights lawsuit against four of the police officers. That case is still working its way through the courts four years later. The next stop will be the 9th Circuit Court of Appeals. The Identity Project is providing legal assistance in the case.
For those interested, I've documented the entire case at:
http://www.checkpointusa.org (http://www.checkpointusa.org)
Click on the TOPD Roadblock link on the left.
I was also stopped at a temporary Border Patrol Checkpoint two years ago. Learning from my first experience, I had a webcam setup on the dashboard this time around and recorded the entire encounter. It's available online at:
http://checkpointusa.org/DHS/DHSroadblock.htm (http://checkpointusa.org/DHS/DHSroadblock.htm)
Terry
Welcome to the Underground! Hopefully you'll decide to leave the Southwest to the Department of Homeland Insanity and join us here in the Free State.
Welcome to the forum, Terry! Great work!
CBP sets up those pesky checkpoints in NH from time to time. We could use you. ;)
Terry, I've just finished watching the video you'd made of the DHS checkpoint, and all I can say is, "bravo, you've inspired me!"
"Why?", "am I being detained", and "am I free to go?" - awesome. I'm going to buy and test a cheap audio recorder or two and keep one in the car in case I get stuck in such a situation.
I'll be forwarding your site's address off to friends, as well.
Quote from: Checkpoint on August 19, 2007, 12:39 AM NHFT
For those interested, The Hiibel case, complete with video and legal documentation, is available on the Identity Project's website at:
...
I was also stopped at a temporary Border Patrol Checkpoint two years ago. Learning from my first experience, I had a webcam setup on the dashboard this time around and recorded the entire encounter. It's available online at:
http://checkpointusa.org/DHS/DHSroadblock.htm (http://checkpointusa.org/DHS/DHSroadblock.htm)
Terry
Great post. And the fact your name is Terry is not lost on me. Coincidence...?
"You're blocking traffic."
Uh, who set up the roadBLOCK in the first place, honey? Hah!
QuoteWelcome to the Underground! Hopefully you'll decide to leave the Southwest to the Department of Homeland Insanity and join us here in the Free State.
Thank you. I've been impressed with the activities of the Underground for a while now along with the philosophy employed in carrying them out. Since I grew up in New England, I've considered moving back in support of the free state and the Underground but nothing concrete at this stage.
Quote"Why?", "am I being detained", and "am I free to go?" - awesome. I'm going to buy and test a cheap audio recorder or two and keep one in the car in case I get stuck in such a situation.
I'd recommend keeping at least two. If one is 'accidently' destroyed or malfunctions, there's probably not much you can do about it but if two show up with jack boot treads all over them, it's easier to make a case that the enforcement agents destroyed evidence... Of course with the Underground's porc411 system in place, having a cell phone ready to go with a hands free speaker system is probably just as good if not better.
I definitely need to setup a similar system in the Southwest. Would anyone be able to tell me the name of the organization providing the phone message to email attachment service?
QuoteGreat post. And the fact your name is Terry is not lost on me. Coincidence...?
Purely.
----
Thanks for the positive feedback along with a great forum for sharing experiences of this nature....
Terry
Quote from: Checkpoint on August 19, 2007, 10:43 AM NHFT
I'd recommend keeping at least two. If one is 'accidently' destroyed or malfunctions, there's probably not much you can do about it but if two show up with jack boot treads all over them, it's easier to make a case that the enforcement agents destroyed evidence... Of course with the Underground's porc411 system in place, having a cell phone ready to go with a hands free speaker system is probably just as good if not better.
I think I see a business opportunity here. I'd love to have a recording kit in my car with a couple hidden cameras and a mic. Maybe some kind of wireless internet that would upload it to a server in real-time so the evidence can't be destroyed.
Quote from: Checkpoint on August 19, 2007, 10:43 AM NHFT
I definitely need to setup a similar system in the Southwest. Would anyone be able to tell me the name of the organization providing the phone message to email attachment service?
here's one:
https://www.j2.com/jconnect/twa/page/voicemail (https://www.j2.com/jconnect/twa/page/voicemail)
Quote from: Malum Prohibitum on August 19, 2007, 01:17 PM NHFT
Quote from: mackler on August 19, 2007, 11:04 AM NHFT
Quote from: Checkpoint on August 19, 2007, 10:43 AM NHFT
I'd recommend keeping at least two. If one is 'accidently' destroyed or malfunctions, there's probably not much you can do about it but if two show up with jack boot treads all over them, it's easier to make a case that the enforcement agents destroyed evidence... Of course with the Underground's porc411 system in place, having a cell phone ready to go with a hands free speaker system is probably just as good if not better.
I think I see a business opportunity here. I'd love to have a recording kit in my car with a couple hidden cameras and a mic. Maybe some kind of wireless internet that would upload it to a server in real-time so the evidence can't be destroyed.
Quote from: Checkpoint on August 19, 2007, 10:43 AM NHFT
I definitely need to setup a similar system in the Southwest. Would anyone be able to tell me the name of the organization providing the phone message to email attachment service?
here's one:
https://www.j2.com/jconnect/twa/page/voicemail (https://www.j2.com/jconnect/twa/page/voicemail)
In some states you have to be careful, the cops are using wiretapping statutes against people who videotape or record in their car. Yeah, I know...
Some states such as New Hampshire (http://newhampshireunderground.com/forum/index.php?topic=4251.0).
Given how NH Police have been interpreting the state's wiretapping statutes as of late, it doesn't seem implausible that they could have gone after Dave Ridley for illegal interception of an oral communication if they had understood what was going on.
Has anyone considered this as a possibility for future encounters?
I was reading the definition section of the pertinent NH statute at:
http://www.gencourt.state.nh.us/rsa/html/LVIII/570-A/570-A-1.htm (http://www.gencourt.state.nh.us/rsa/html/LVIII/570-A/570-A-1.htm)
The definition for 'oral communication' is:
Quote""II. Oral communication'' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.
What this means to me is that there's no hard and fast prohibition against recording in-person conversations. Rather, a case would have to be made that because police officers are public servants, they have no reasonable expectation of privacy when operating within the public sphere. This interpretation is further bolstered by the definition of 'intercept':
QuoteIII. ""Intercept'' means the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of any electronic, mechanical, or other device.
You'll note the use of the term aural. If every word uttered by a police officer during an encounter constituted an 'oral communication' within the context of the legal definition of 'oral communication', the mere act of hearing the officers words (and writing them down at a later date from memory) would constitute an illegal interception under the statute. This in turn would make the mere act of defending oneself from allegations made by a police officer during an encounter by quoting the officers words unlawful.
This would obviously be a pretty silly interpretation of the statute so it should follow that recording an encounter with a police officer is no more illegal than hearing a police officer speak when he/she is operating within the public sphere....
The equivalent Arizona statute states the following in pertinent part:
Quote13-3019. Surreptitious photographing, videotaping, filming or digitally recording or viewing; exemptions; classification; definitions
A. It is unlawful for any person to knowingly photograph, videotape, film, digitally record or by any other means secretly view, with or without a device, another person without that person's consent under either of the following circumstances:
1. In a restroom, bathroom, locker room, bedroom or other location where the person has a reasonable expectation of privacy and the person is urinating, defecating, dressing, undressing, nude or involved in sexual intercourse or sexual contact.
2. In a manner that directly or indirectly captures or allows the viewing of the person's genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public.
B. It is unlawful to disclose, display, distribute or publish a photograph, videotape, film or digital recording made in violation of subsection A of this section without the consent or knowledge of the person depicted.
C. This section does not apply to:
1. Photographing, videotaping, filming or digitally recording for security purposes if notice of the use of photographing, videotaping, filming or digital recording equipment is clearly posted in the location and the location is one in which the person has a reasonable expectation of privacy.
2. Photographing, videotaping, filming or digitally recording by correctional officials for security reasons or in connection with the investigation of alleged misconduct of persons on the premises of a jail or prison.
3. Photographing, videotaping, filming or digitally recording by law enforcement officers pursuant to an investigation, which is otherwise lawful.
4. The use of a child monitoring device as defined in section 13-3001.
For comparison, a state by state breakdown of pertinent wiretapping laws is available here:
http://www.rcfp.org/taping/ (http://www.rcfp.org/taping/)
Terry
A Federal court in Pennsylvania has ruled that taping the police is a First Amendment right.
They can prosecute here in NH, but if you have the stones for a long, hard appeal, you will be vindicated and may even be able to collect punitive damages from the police officers in question as did the victim in the Pennsylvania case.
Quote from: mvpel on August 20, 2007, 09:20 AM NHFT
A Federal court in Pennsylvania has ruled that taping the police is a First Amendment right.
They can prosecute here in NH, but if you have the stones for a long, hard appeal, you will be vindicated and may even be able to collect punitive damages from the police officers in question as did the victim in the Pennsylvania case.
Not to mention setting a precedent.
I've had another couple thoughts on this subject: First, since many police cars have cameras recording stops, and the cameras have microphones, if the officer knows that what he is saying is being recorded then it's obviously not a circumstance justifying "an expectation that such communication is not subject to interception" (http://www.gencourt.state.nh.us/rsa/html/LVIII/570-A/570-A-1.htm). You might ask the officer as soon as he approaches your vehicle whether the interaction is being recording.
Second, you could simply tell the officer that you are recording the interaction. Once you tell him that, he clearly will not be justified in expecting his communication to be not subject to interception. Even if he can claim such an expectation, once he knows you're recording you can argue that his continued interaction constituted consent to the interception. I'm not sure how this would play out in court, but it seems like another fun project for someone with the constitution for extended litigation.
Quote from: mvpel on August 20, 2007, 09:20 AM NHFT
A Federal court in Pennsylvania has ruled that taping the police is a First Amendment right.
Can you send me the details please?
I want to prepare another attempt to fix the current broken laws, in the 2009 legislative session (which is the next time such a bill can be introduced, since it failed last time).
I can't find any such federal court case, but I did find this case (http://www.pennlive.com/patriotnews/stories/index.ssf?/base/news/1182392732222890.xml&coll=1) from earlier this year.
Robinson v. Fetterman, Civil Action No. 04-3592, in the United States District Court for the Eastern District of Pennsylvania. (http://www.paed.uscourts.gov/documents/opinions/05D0847P.pdf)QuoteThe activities of the police, like those of other public officials, are subject to public scrutiny. Indeed, "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987). Although Robinson need not assert any particular reason for videotaping the troopers, he was doing so in order to make a visual record of what he believed was the unsafe manner in which they were performing their duties. He had previously talked to Arthur Hershey, a Representative in the Pennsylvania General Assembly, about his concerns. Robinson's right to free speech encompasses the right to receive information and ideas. Stanley v. Georgia, 394 U.S. 557, 564 (1969). He also has a First Amendment right to express his concern about the safety of the truck inspections to the appropriate government agency or officials, whether his expression takes the form of speech or conduct. See Texas v. Johnson, 491 U.S. 397, 404 (1989); Minnesota State Board for Cmty. Colleges v. Knight, 465 U.S. 271, 308 (1984). Videotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence, as it did in this case. In sum, there can be no doubt that the free speech clause of the Constitution protected Robinson as he videotaped the defendants on October 23, 2002. See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); see also Stanley, 394 U.S. at 564 (1969); Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999). Moreover, to the extent that the troopers were restraining Robinson from making any future videotapes and from publicizing or publishing what he had filmed, the defendants' conduct clearly amounted to an unlawful prior restraint upon his protected speech. Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 316 & n.13, 317 (1980); Near v. State of Minnesota ex. rel. Olson , 283 U.S. 697 (1931).
Sweet! Not only that, Robinson was awarded a $41,000 judgment against the troopers.
One point: Robinson was changed with harassment, not wiretapping.
The wiretapping statute as applied to police is an even more direct infringement on the First Amendment.
Thanks mvpel!
Filed this away with the rest of my "Gannon ammo!"
Quote from: d_goddard on August 20, 2007, 03:11 PM NHFT
Quote from: mvpel on August 20, 2007, 09:20 AM NHFT
A Federal court in Pennsylvania has ruled that taping the police is a First Amendment right.
Can you send me the details please?
I want to prepare another attempt to fix the current broken laws, in the 2009 legislative session (which is the next time such a bill can be introduced, since it failed last time).
Thank you Denis ! RSA 570-a cost me over 200 grand when it was enacted as I had to dispose of electronic equipment and FM transmitters in less than 90 days after enactment. I camped out on then Attorney General Warren Rudmans doorstep, pleading for compensation for my loss under the 5th amendment as my business, Scientific Detection Devices, registered with the SOS was destroyed by CORPORATE GOVERNMENT. (See last sentence Amendment 5). Touch base with me if you are going to propose potential legislation or repeal.
Anyone in NH or nearby who would like to have some fun with a Border Patrol citizenship checkpoint should check out the southbound rest area on I-91 just south of White River Junction, VT. The last I knew (which was a while ago, admittedly), they were operating an effectively permanent one during roughly business hours (day shift?) there. It should be safe to scope it out at other times of day and night to confirm its continued existence. They were leaving a lot of cones and warning signs set up all the time, so if you see those, then it's still in operation. I'm not sure whether those would be visible from the northbound lanes or not, but it should be obvious if it is in operation, since all southbound traffic would be diverted through the rest area.
This location is approximately 96 miles straight line distance from the Canadian border, certainly well over 100 miles by road. The reason for the choice of location is that it is just south of the intersection of I-91 and I-89, both of which reach the border, and I-91 is the route of choice from there to NYC and points south.
Quote from: erisian on August 26, 2007, 10:35 AM NHFT
This location is approximately 96 miles straight line distance from the Canadian border, certainly well over 100 miles by road. The reason for the choice of location is that it is just south of the intersection of I-91 and I-89, both of which reach the border, and I-91 is the route of choice from there to NYC and points south.
So they don't care about the folks going to Boston?
Or the people who know the checkpoint is there and run down Route 12A a few miles to smuggle those illegal immigrants in from Canada...
The Supreme Court has ruled that there is not a "firearms exception" to Terry; that is, the mere presence of a firearm, if there is no crime, is not a valid reason to perform a Terry stop.
I had actually forgotten about that case until I saw it mentioned elsewhere tonight.
See the full article for a full explanation, with footnotes:
http://policechiefmagazine.com/magazine/index.cfm?fuseaction=display_arch&article_id=757&issue_id=122005 (http://policechiefmagazine.com/magazine/index.cfm?fuseaction=display_arch&article_id=757&issue_id=122005)
Because it is legal in most states to carry a handgun if properly licensed, a report that an individual possesses a handgun, without any additional information suggesting criminal activity, might not create reasonable suspicion that a crime is being or will be committed.1 Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest,2 it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop. The same applies to persons in motor vehicles. An investigatory stop is only justified when the police have "a reasonable suspicion, based on specific, articulable facts and reasonable inferences there from," that the subject "had committed, was committing, or was about to commit a crime."3
...Or the people who know the checkpoint is there and drive right through during the majority of time when it is closed.
http://stopthecheckpoint.com/ (http://stopthecheckpoint.com/)
Radio news report:
http://www.nhpr.org/audio/audio/nht-2005-01-04-sz1.wax (http://www.nhpr.org/audio/audio/nht-2005-01-04-sz1.wax)
Good in depth article:
http://www.counterpunch.org/matson01212006.html (http://www.counterpunch.org/matson01212006.html)
VT Joint resolution in opposition to the establishment of a permanent border patrol checkpoint on Interstate 91 south of White River Junction:
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2008/resolutn/JRH005.HTM (http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2008/resolutn/JRH005.HTM)
Quote from: mackler on August 20, 2007, 12:15 PM NHFT
[Second, you could simply tell the officer that you are recording the interaction. Once you tell him that, he clearly will not be justified in expecting his communication to be not subject to interception. Even if he can claim such an expectation, once he knows you're recording you can argue that his continued interaction constituted consent to the interception. I'm not sure how this would play out in court, but it seems like another fun project for someone with the constitution for extended litigation.
II. Oral communication'' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. Reading the above it doesn't seem that consent is necessary, just notice. Further, how anyone could believe a confrontation on the sidewalk is not subject to interception is beyond me. Also, as porcs become more prevalent in NH it seems that LEO should be on notice that their actions are all, will always be, "subject to interception."
Quote from: erisian on August 27, 2007, 07:35 AM NHFT
...Or the people who know the checkpoint is there and drive right through during the majority of time when it is closed.
http://stopthecheckpoint.com/ (http://stopthecheckpoint.com/)
Radio news report:
http://www.nhpr.org/audio/audio/nht-2005-01-04-sz1.wax (http://www.nhpr.org/audio/audio/nht-2005-01-04-sz1.wax)
Good in depth article:
http://www.counterpunch.org/matson01212006.html (http://www.counterpunch.org/matson01212006.html)
VT Joint resolution in opposition to the establishment of a permanent border patrol checkpoint on Interstate 91 south of White River Junction:
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2008/resolutn/JRH005.HTM (http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2008/resolutn/JRH005.HTM)
We should pick a day and get like 100 cars to go through the checkpoint and give them a hard time (legally of course).