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.

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.
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.

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.]



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 4:08am

    Philip Bernot must not know how to do his job

    If I did not know how to do my job properly I would not want to be recorded either.

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Oct 10th, 2013 @ 4:15am

    Post it on Youtube

    Title it: Cop flees from crime scene, scared away by camera wielding friend of victim.

    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.

     

    reply to this | link to this | view in thread ]

  3.  
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    Anonymous Coward, Oct 10th, 2013 @ 4:23am

    perfect crime

    So all I have to do to get away with any crime in Lancaster PA is have a bunch of friends with cameras follow me around while i go on a crime spree

     

    reply to this | link to this | view in thread ]

  4.  
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    Anonymous Coward, Oct 10th, 2013 @ 4:29am

    every time one of these type of cases goes to court, it goes against the Public Body, usually the Police, for stopping filming by citizens. why the hell doesn't one or more of the bone idle fuckers that are supposed to sort this shit out, sort it out, once and for all?? at this moment, regardless of what happens in the individual cases, police depts especially still do what they want, when they want. they are supposed to be the main upholders of the law! not the ones that break it first or as and when it suits them!! get your friggin' act together Congress, for Christ's sake!!

     

    reply to this | link to this | view in thread ]

  5.  
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    McGreed (profile), Oct 10th, 2013 @ 4:33am

    Re: Post it on Youtube

    Damn, you know what?! That's perfect for criminals to get away from cops! Just pull out a camera (of course, in a way that doesn't turn you into a bullet riddle corpse) and then start filming, and you get a free pass, as the cop runs away, scared to get his 'soul' sucked out of him and judge by the higher powers (aka the common good).

     

    reply to this | link to this | view in thread ]

  6.  
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    ThatFatMan (profile), Oct 10th, 2013 @ 4:42am

    Who is a Journalist?

    Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy

    Well, sounds like his friend with the camera was a journalist to me. Unless PA has a special definition that wasn't mentioned?

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 4:47am

    It is Offical

    Police believe cameras steal their souls.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 5:07am

    The citizen should have deployed non-lethal force to assure the cop compliance.

     

    reply to this | link to this | view in thread ]

  9.  
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    ottermaton (profile), Oct 10th, 2013 @ 5:07am

    the most surveilled city in the nation

    First off, I live in Lancaster PA. Didn't know about this until reading it here.

    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. :-/

     

    reply to this | link to this | view in thread ]

  10.  
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    Anonymous Coward, Oct 10th, 2013 @ 5:07am

    Lancaster != Manheim

    Just thought you should know that Lancaster Police are a separate force from the Mannheim Police. They are close to each other, but they aren't one department.

     

    reply to this | link to this | view in thread ]

  11.  
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    Anonymous Coward, Oct 10th, 2013 @ 5:10am

    Great, now I need to see who I can write to about this since it's in my own state...

     

    reply to this | link to this | view in thread ]

  12. This comment has been flagged by the community. Click here to show it
     
    identicon
    anonymous, Oct 10th, 2013 @ 5:16am

    And so it begins...

    How many stories like this do we have to hear, but never hearing about the ACLU or other similar organizations getting involved?

    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.

     

    reply to this | link to this | view in thread ]

  13.  
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    That One Guy (profile), Oct 10th, 2013 @ 5:26am

    Re: the most surveilled city in the nation

    PS: Otherwise, Lancaster PA is a very nice place to live. :-/

    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.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 5:30am

    Re: And so it begins...

    Some people are simply incapable of multitasking.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 5:32am

    Does Lancaster PD deploy dashboard cams?

     

    reply to this | link to this | view in thread ]

  16.  
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    Apocalypse38, Oct 10th, 2013 @ 5:32am

    Update

    The spokesman for the township police did come back and say that the officer was in the wrong since the video did not impede his police duties and the officer returned to the house.

    http://lancasteronline.com/article/local/904093_Video-of-Lancaster-city-police-response-sparks -First-Amendment-rights--debate--.html

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 5:35am

    Re: Lancaster != Manheim

    True, but also Manheim != Manheim Township. The latter is a suburb of Lancaster city, and is closer to it than to Manheim.

     

    reply to this | link to this | view in thread ]

  18.  
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    Zos (profile), Oct 10th, 2013 @ 5:36am

    how is there any reasonable expectation of privacy when taking a statement?

    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.

     

    reply to this | link to this | view in thread ]

  19.  
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    corwin155 (profile), Oct 10th, 2013 @ 5:50am

    Fascists Police state

    You can not have a totalitarian police state if officers are video taped breaking the law.
    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.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 5:58am

    Re: the most surveilled city in the nation

    "There is literally a camera on every corner"

    Sounds like the UK.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Jasmine Charter, Oct 10th, 2013 @ 6:06am

    Police... abusing the law...

    How... um... shocking.... police... abusing the law they are sworn to uphold because it's more convenient.

    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.

     

    reply to this | link to this | view in thread ]

  22.  
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    Nurlip (profile), Oct 10th, 2013 @ 6:09am

    Don't the vast majority of police cruisers record audio and video anyways? Even if he wasn't in view of the cruiser's camera, if he was in the general vicinity, the audio recording capability would have captured the dialog. If he was being recorded by the cruiser, that recording is public record which makes the conversation public record as well.

     

    reply to this | link to this | view in thread ]

  23.  
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    afn29129 (profile), Oct 10th, 2013 @ 6:21am

    Sorry officer but I have no control over what that person over there is doing.... Do you feel intimidated by his camera? Then you talk to him yourself...

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 6:24am

    Step 1: Wear go-pro cam at all times
    Step 2: You are now unarrestable in PA

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    Trails (profile), Oct 10th, 2013 @ 6:24am

    Re: And so it begins...

    I don't really want to derail the subject

    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!

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 8:04am

    "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.

    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.

     

    reply to this | link to this | view in thread ]

  27.  
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    sorrykb (profile), Oct 10th, 2013 @ 9:03am

    I think I'm setting the bar too low

    I'm actually relieved (and a bit surprised, given how these stories usually go) that the cop didn't arrest and/or assault the person who was filing.

     

    reply to this | link to this | view in thread ]

  28.  
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    Doug (profile), Oct 10th, 2013 @ 9:24am

    Also in Other PA Cities

    I live in Pittsburgh. I fired a contractor once. He still had tools at my house, and showed up at my door at 6am banging, swearing, and threatening to break in if I didn't let him in to get his stuff. I called the cops. I began video taping everything just in case the contractor accidentally or intentionally damaged anything. When the cops saw the camera, they said they wouldn't speak to me if I kept recording. It irks me to this day. They wouldn't even say why they objected.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Herman Joshua, Oct 10th, 2013 @ 9:24am

    Cops are the enemy

    They're cops - they are the real enemy of the public. They don't "protect & serve" anyone but the wealthy and powerful. The public needs to stop treating these morons as though they're special - they're not. Cops are, indeed, just over-protected spoiled bullies used to getting their way. Just behind them on the slime scale are the judges who always take a cop's word over the citizen's. F**k 'em all.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 9:41am

    Re: Update

    But nothing happened to the officer other than a Don't get caught next time speech right?

     

    reply to this | link to this | view in thread ]

  31.  
    icon
    Capitalist Lion Tamer (profile), Oct 10th, 2013 @ 10:47am

    Re: Update

    Post has been updated to reflect this. Thanks for the tip.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 10:50am

    funny

    i thought you have no expectation of privacy in public officer?

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 1:09pm

    I don't blame that cop I mean what if the camera was really a gun?

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 2:08pm

    test

    test cause getting blocked by u know who

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Jason, Oct 10th, 2013 @ 2:29pm

    How is that illegal when they can record us with audio thats bull.Same thing thall did to them shall be done to thee.To much power they have.P.A. is one of the worst states to move to with the police have nothing to do but harass and the tax's are phonominal its like thirty of them.I moved to P.A. and can't wait to leave this piece of crap state.

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Griffyn, Oct 10th, 2013 @ 3:55pm

    appropriate response

    Police are human, so a better response would be something like

    "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".

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    me, Oct 14th, 2013 @ 5:34am

    proper response

    1) continue recording
    2) demand the douchebag do their job
    3) if they don't sue them for negligence

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    rescuetruth, Nov 18th, 2013 @ 3:18pm

    Recent Pennsylvania wiretap case

    Last month, a related case was settled against a Western Pennsylvania police department. In this case, a man was arrested under the wiretap statute for recording an encounter between his disabled friend and an aggressive police officer. The charges were dropped and the phone was returned *without* the recording, likely because the state Supreme Court has already decided that the wiretap statute does not apply where there is no reasonable expectation of privacy (as in encounters with police). In the civil suit against the Pennsylvania police department, the man was awarded $65,000 dollars, reaffirming the idea that his constitutional rights were violated. The idea that police officers are abusing this law is very disturbing. It prevents proper recourse for abuses of power against ordinary citizens. Thankfully, the courts have been very clear on this matter.

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    Duncan, Jan 17th, 2014 @ 8:00pm

    Re: the most surveilled city in the nation

    I live here (well, in the interest of full disclosure, in the "safe" and lily white suburbs; I'd like to move downtown.)

    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.

     

    reply to this | link to this | view in thread ]


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