More Important than the Second Amendment?

Via Michael Tofias, who comments that this is "More important than the second amendment." Wendy McElroy reports, "In at least three states, it is now illegal to record any on-duty police officer."

The legal justification for arresting the [video] "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law - requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler's license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

These laws and prosecutions target people who are filming public employees performing their official duties in public spaces where ordinary citizens have no reasonable expectation of privacy and are lawfully subject to all manner of searches and surveillance. For the average person, who is much more likely to carry a digital recording device than a firearm and who is much more likely to be subject to police questioning (or to witness a police action) than to fight off a criminal or participate in a legitimate armed rebellion, the right to document interactions with police is a substantially more important tool for limiting abusive government than the right to bear arms. States that take their citizens' freedoms seriously should explicitly recognize the right to record police officers in public spaces along with taking other actions to limit their exposure to intrusive police actions.