Legal issues from videotaping with a helmet camera in the DC area.

[The Mad King Pepe']

I have a ContourHD camera attached to my helmet and I've started recording my ride to and from work. The main reason I've done this is because I'm getting weary of a minority of drivers in the DC area that are either incompetent or distracted or whatever... either way just stupid and dangerous. So if I end up in an accident, hopefully I will be able to provide an un-biased version of the facts. I also want to be able to record an officer if I am pulled over: similar argument as for the minority of drivers, essentially I want to have my bases covered.

I would like some LEGAL opinions on this. I'm not so interested in personal opinions, not because I don't care ( ), but because I want something that is valid in court (if that's where I end up). So essentially my question for you is: in DC, MD and VA, while riding on PUBLIC roads, can I legally record other people/drivers/officers and put these videos online or use them in court?

I remember the whole deal that happened last year when a trooper pulled over a squid and pulled out a gun on him, then the squid posted the video online and then the sh!t really hit the fan. ducatiz posted a link to a letter from the Maryland Attorney General's office where he clarified that the squid did not violate wiretapping laws and that it's legit to record officers (http://www.ducatimonsterforum.org/index.php?topic=41719.0). Is still still the case?

Earlier this year the DC police were arresting some guy and a lady recorded the whole thing on her cell phone. The police took her cell phone away and returned a few days later after erasing the video. I remember hearing on the news how in DC it is legal to record the police as long as you don't interfere.

I don't know what's the situation in VA, but I assume it would be similar... or do cops just take you out in the woods and shoot you? I'm joking of course, but I would really appreciate some legal advice.

TIA!

[ducatiz]

You have a legal right to record anyone in public, including law enforcement.  The only exceptions are if you are recording a private interaction where a party reasonably believes they have privacy, such as if you were videotaping thru someone's window into their home.

Even though MD has a "two party consent" law for wiretapping, the circumstances in Maryland were clarified by the state attorney general.  No one has any expectation of privacy while being in public.  Charges were dropped by the judge.

http://blog.washingtonpost.com/story-lab/2010/09/wiretapping_charges_dropped_ag.html

DC has a "two party consent" law for wiretapping, however, there is a specific exclusion in the law for public meetings (i.e. no consent needed).  Riding on the street is even MORE public than a public meeting.

VA has a traditional "one party consent" law for wiretapping.  Public recording is public. 

EVERYWHERE, law enforcement can ask you to stop, but you are under no obligation to do so unless you are interfering with their work.  In other words, if you're a third party, keep your distance.  If you are the 1st party (i.e. being stopped), you do NOT have to cease recording, but you cannot use the recording as a basis to refuse to obey requests by LEO.

[Slide Panda]

He said it best - but yeah it's all about reasonable expectation of privacy. If you and they are on a public road, sidewalk, large event (sports or concert) etc you have no reasonable expectation of privacy. You can film, photograph or be filmed or photographed.

Once the camera enters a private building that's different and gets more complicated... but on the roads you're fine

[The Mad King Pepe']

He said it best - but yeah it's all about reasonable expectation of privacy. If you and they are on a public road, sidewalk, large event (sports or concert) etc you have no reasonable expectation of privacy. You can film, photograph or be filmed or photographed.

Once the camera enters a private building that's different and gets more complicated... but on the roads you're fine

Thanks, that what I thought, but I wanted to be sure.

EVERYWHERE, law enforcement can ask you to stop, but you are under no obligation to do so unless you are interfering with their work.  In other words, if you're a third party, keep your distance.  If you are the 1st party (i.e. being stopped), you do NOT have to cease recording, but you cannot use the recording as a basis to refuse to obey requests by LEO.

This raises a new question: what to do if the police ask me to stop recording? How do I refuse (respectfully, of course )? Just say "no sir, I refuse to", or is there a better way to say it? Also, assuming I'm being pulled over, what to do if the officer insists that I turn off the camera and/or tries to take it from me?

[bikepilot]

FWIW google drives camera-cars all over the city and posts the footage online (streetview).  I've even spotted the google car in DC a few times.  They have started blurring faces and tags.

Answers beyond that get complicated and depend on the specifics of how and in which court you might want to use your vid, what capacity you want to post the vid on-line etc.  If you are making $$ of the vid or using them to advertise something else that makes $$$, life could potentially get complicated. 

imo unless you are out to make a policy stance, its best to do whatever cops say.  They have guns and a huge weight of governmental coercive authority behind them that has a lot of momentum.  Whether they are legally in the right seems not to matter a whole lot in the short term. Courts are slow and expensive, you could be legally right, but if the cop says otherwise it'll take lots of cash and lots of time to prove your point.  Might not be worth the trouble.

[take risks]

FYI....

In the state of washington they have a law stating that anything more 1/8" anywhere on your helmet is illegal.
They have started inforcing this with warnings, but it gives them a reason to pull you over and make sure your blinkers are 8" apart or whatever else they want to knit pick about it.

[ducatiz]

Thanks, that what I thought, but I wanted to be sure.
This raises a new question: what to do if the police ask me to stop recording? How do I refuse (respectfully, of course )? Just say "no sir, I refuse to", or is there a better way to say it? Also, assuming I'm being pulled over, what to do if the officer insists that I turn off the camera and/or tries to take it from me?

You should respond by saying something like this:

"Sir, I believe I am at a safe distance but I will move further if you need me to.  However, I am within my legal right to video record you in public as there is no law prohibiting me from video recording anyone who is not in a private place and I am not violating any laws by doing so, provided I do not interfere with your investigation/job/etc."

if they try to take it from you, you really should not resist.  just leave it running so that it records the grab (and eventual smash)

[ducatiz]

FYI....

In the state of washington they have a law stating that anything more 1/8" anywhere on your helmet is illegal.
They have started inforcing this with warnings, but it gives them a reason to pull you over and make sure your blinkers are 8" apart or whatever else they want to knit pick about it.

that's interesting.  it's a reasonable law given state law governs what is a safe helmet, but of course any excuse to stop is an excuse to search.

[The Mad King Pepe']

FYI....

In the state of washington they have a law stating that anything more 1/8" anywhere on your helmet is illegal.
They have started inforcing this with warnings, but it gives them a reason to pull you over and make sure your blinkers are 8" apart or whatever else they want to knit pick about it.

Hmmm... so no bluetooth heasets? Ok, time to break out the measuring tape!

imo unless you are out to make a policy stance, its best to do whatever cops say.  They have guns and a huge weight of governmental coercive authority behind them that has a lot of momentum.  Whether they are legally in the right seems not to matter a whole lot in the short term. Courts are slow and expensive, you could be legally right, but if the cop says otherwise it'll take lots of cash and lots of time to prove your point.  Might not be worth the trouble.

I'm not about picking fights with cops, or anyone for that matter, I'm really not that kind of person. On the other side I don't like it when people try to get things from me through intimidation or threats. By knowing my rights I can act in the best way for the situation..... I think. 

[Meerkat]

By knowing my rights I can act in the best way for the situation..... I think. 

<minuteman_persona>
Keep beleevin' that, Furiner! ICE'll export your ass ina minit!
</minuteman_persona>

I've always been advised to be as polite as possible and make the interaction as immemorable as possible for the kind officer.

[Meerkat]

Although I'm not a lawyer, I sometimes play one in my own delusions and frequent a couple of court/constitutional law blogs. One had a piece about a 1st Circuit Court of Appeals case relevant to the discussion here: http://volokh.com/2011/08/29/first-amendment-right-to-openly-record-police-officers-in-public/ and an interesting site showed up in the comments: http://www.righttorecord.org/?p=448

A relevant quote from the righttorecord entry:
"Copwatchers know that in Massachusetts, Florida, and a number of other states, some officers will wrongly charge individuals with a wiretapping charge to stop them from recording police, and almost all cases plea or settle. People generally cannot afford the legal costs and criminal attorneys themselves generally don’t know this area of the law so well."

Yeah, I'm one of those dorks!

[sbrguy]

look ducatiz can tell you what you "might be able" to say.

but let's be honest, you say something like that to a cop and he wants you to stop he can take your crap, break it and say that you dropped it and then its your word against theirs and guess who wins in court?

hint- its not you. simple as that, you have the "textbook" version of what you can do that is nice on a forum board and in a classroom, then you have real life.

that is unless you are lucky and you have someone else tapeing the entire incident.

[Meerkat]

look ducatiz can tell you what you "might be able" to say.

but let's be honest, you say something like that to a cop and he wants you to stop he can take your crap, break it and say that you dropped it and then its your word against theirs and guess who wins in court?

hint- its not you. simple as that, you have the "textbook" version of what you can do that is nice on a forum board and in a classroom, then you have real life.

Sometimes the courts get it right as evidenced by the Glik case discussed in the blog post. So yeah, the guy had to slog through the legal system but hopefully some education will go on and this won't be a problem in that jurisdiction again. And, of course, he'll probably get some change from the city since his rights were unnecessarily violated.

that is unless you are lucky and you have someone else tapeing the entire incident.

I wouldn't count on that in DC where innocent bystanders are still being detained for legal activity: http://reason.com/blog/2011/07/25/reasontv-fighting-the-war-on-c One of the beauties of the Glik decision is it dispenses with the "qualified immunity" argument by LEOs ("I believed he was breaking the wiretapping law so I can't be prosecuted.") and says any reasonable person/reasonable LEO should know that videotaping in public is protected by the first amendment. If only the 9 Supremes would sing about it...

[DRKWNG]

I wouldn't count on that in DC where innocent bystanders are still being detained for legal activity: http://reason.com/blog/2011/07/25/reasontv-fighting-the-war-on-c

Let's be careful and not editorialize the situation referenced.  Please correct me if I'm wrong, but I imagine that none of us were present when that event actually took place, and as such cannot put full faith in anything that one single involved party has to say about it.  There are always (at least) two sides to every story.

[take risks]

boooo!
Cameraman Arrested by Suffolk County Police

and then hooray.
http://www.citmedialaw.org/blog/2011/victory-recording-public