Open carry and refusal to produce ID

[Checkpoint]

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

The definition for 'oral communication' is:

""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':

III. ""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:

13-3019. 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/

Terry

[mvpel]

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.

[mackler]

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".  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.

[d_goddard]

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).

[error]

I can't find any such federal court case, but I did find this case from earlier this year.

[mvpel]

Robinson v. Fetterman, Civil Action No. 04-3592, in the United States District Court for the Eastern District of Pennsylvania.

The 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).

[mackler]

Sweet!  Not only that, Robinson was awarded a $41,000 judgment against the troopers.

One point: Robinson was changed with harassment, not wiretapping.

[mvpel]

The wiretapping statute as applied to police is an even more direct infringement on the First Amendment.

[d_goddard]

Thanks mvpel!
Filed this away with the rest of my "Gannon ammo!"

[armlaw]

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.

[erisian]

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.

[NHRes2004]

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?

[error]

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...

[KBCraig]

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

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

[erisian]

...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/
Radio news report:
http://www.nhpr.org/audio/audio/nht-2005-01-04-sz1.wax
Good in depth article:
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