In what is the most comprehensive and in-depth article on the war on photography, Radley Balko of Reason Magazine explores the problems, inconsistencies and challenges behind the ongoing crackdown against citizens who videotape police officers.

Balko highlights a pending case against Michael Allison, an Illinois man who is facing 75 years in prison for recording a judge during a hearing – after Allison’s request to have a court reporter record the hearing were denied.

In late 2008, Allison went to the Robinson police station, tape recorder in hand, and asked the chief to tell his officers either to name the law he was violating and issue him a citation or leave him alone. Not long after, two Robinson police officers showed up at his mother’s property and, while he was working on his mother’s car in her driveway, wrote Allison a citation for violating the eyesore ordinance. Allison openly recorded the conversation with a digital recorder. A court date was scheduled for January 2010.

The day before the trial, Allison went to the Crawford County Courthouse to request a court reporter for the proceedings. “If they were going to convict me of this bogus ordinance violation, I wanted to be sure there was a record of it for my lawsuit,” he says. As he spoke with Crawford County Circuit Court Clerk Angela Reinoehl, Allison showed her his digital recorder, although he says in this instance he wasn’t recording. “I held out the tape recorder to make it clear that if they weren’t going to make a record of this ridiculous farce, I was going to make sure I had one,” he says. 

Reinoehl denied the request, but Allison’s promise to record the proceedings apparently came through loud and clear. Just after he walked through the courthouse door the next day, Allison says Crawford County Circuit Court Judge Kimbara Harrell asked him whether he had a tape recorder in his pocket. He said yes. Harrell then asked him if it was turned on. Allison said it was. Harrell then informed the defendant that he was in violation of the Illinois wiretapping law, which makes it a Class 1 felony to record someone without his consent. “You violated my right to privacy,” the judge said.

Allison responded that he had no idea it was illegal to record public officials during the course of their work, that there was no sign or notice barring tape recorders in the courtroom, and that he brought one only because his request for a court reporter had been denied. No matter: After Harrell found him guilty of violating the car ordinance, Allison, who had no prior criminal record, was hit with five counts of wiretapping, each punishable by four to 15 years in prison. Harrell threw him in jail, setting bail at $35,000.

The problem is that Illinois is one of only two states in the nation where the wiretapping law does not have an expectation of privacy provision, meaning that even if you record a public official in a public hearing with their knowledge, you are committing a crime if they do not consent to being recorded.

In Allison’s case, he made it clear that he was going to record the hearing. It is perhaps the only reason that the judge knew she was being recorded.

But because she objected to being recorded, she used her authority and the absurd law to retaliate against Allison.

The Massachusetts wiretapping law at least states that one is allowed to record people without their consent in public as long as they are not being secretive about it. In other words, a person is assumed to consent to being recorded if they see you are recording them.

Although Balko was unable to come across any actual convictions of people who were arrested for recording public officials, there have been many instances of people accepting a plea deal where they admit guilt to lesser offense, even if they have done was record a public official.

Therefore, the law has remained unchallenged since it was introduced in 1994.

Hopefully, Allison’s case will change all that.

Balko highlights various cases that we have become familiar with on Photography is Not a Crime, conducting various interviews with several sources, including myself.

He also interviews James Pasco, executive director of the national Fraternal Order of Police, which describes itself as “the world’s largest organization of sworn law enforcement officers” (which happens to be in serious need of a website redesign).

Pasco believes it should be illegal to videotape police officers in public because that can intimidate officers from doing their job.

He also believes it is extremely rare for a police officer to be caught lying as a result of a video camera and believes we have to “put faith and trust in our authority figures.”

He even goes as far as to challenge Balko to provide 10 incidents where a citizen video has shown that an officer has lied on a report.

A quick search through my website produced the following 10 incidents where officers proved to be lying after a video emerged from the incident. Not all of them are a result of citizen video. Some are a result of surveillance video and a couple are a result from either a dash cam video or jailhouse video.

But I listed those because they proved that some officers have become so accustomed to lying, that they will do it even when they know they are being recorded, which makes it difficult for us to have faith and trust in our authority figures.

  1. In New York City, police went on a rampage during a 2007 critical mass bicycle ride through Times Square, knocking people off their bicycles and arresting them at random on absurd charges. The city ended up dishing out $98,000 to five cyclists after the video emerge.
  2. In 2008, a New York City police officer named Patrick Pogan knocked a man off his bicycle during another critical mass ride through Times Square, accusing him of assault on a police officer. Charges were dropped against the cyclist after the video emerged and the officer ended up charged convicted of falsifying public documents, even though he served no jail time.
  3. Earlier this year, a group of cops were caught on video severely beating a University of Maryland student who was dancing in the streets, celebrating a basketball victory. Police claimed he assaulted them. The video proved otherwise. The FBI is now investigating.
  4. In 2009, a police officer in Maryland testified that the man she arrested for driving under the influence a year earlier was passed out in the driver’s seat of his car with the keys in the ignition. A surveillance video proved that the man was actually passed out in the back seat of his car with his keys in his pocket. He was immediately acquitted while Montgomery County police officer Dina Hoffman was charged with perjury. She was, however, acquitted.
  5. In 2009, a Kings County deputy was caught on a jailhouse video viciously assaulting a 15-year-old girl who tossed a shoe in his direction. Deputy Paul Schene claimed in his report that the shoe caused a bloody welt on his shin and that he had to handcuff her because she was having a panic attack. But the video shows the shoe barely touched him and that his shin was most likely injured after it struck a metal toilet during his attack on her. Schene was charged with assault but two trials against him resulted in mistrials, so he is no longer facing charges. 
  6. In 2007, a Miami television news reporter was arrested outside a public school on trespassing charges after police accused him on standing of the grass on school property. The video proved that he was actually standing on the sidewalk.
  7. In 2009, a Philadelphia woman was arrested for assault on a police officer inside a convenience story. But the surveillance video proved that the cop walked into the store with his gun drawn and grabbed the woman from behind, pressing the gun into her face – all in retaliation for his son who was involved in a fender bender with the woman.
  8. Earlier this year, a Ft. Lauderdale cop arrested a man for resisting arrest and disorderly intoxication, but a video shot by the suspect’s girlfriend proved that all the man was doing was asking for the officer’s badge number. The officer ended up resigning while under investigation.
  9. In 2009, a Denver police officer testified in court that a man on bicycle had attacked him outside Coors Stadium, resulting in the man getting arrested for assault on a police officer where he was facing a minimum three years in prison. But then a citizen video emerged which showed officer Michael Cordova attacking him instead. Charges against the bicyclist were cropped and Cordova ended up charged with second degree assault.He was, of course, acquitted. 
  10. In 2009, a Hollywood (Fl.) cop ended up rear-ending a woman who was stopped at a red traffic light. Once responding officers discovered the woman was drunk, they decided to twist the facts and state that the woman veered into the officer’s lane. The only problem was, their scheme was caught on a police car dash cam. Charges against the woman were dropped and the officers were terminated and charged with falsifying documents.