NH Cops Use Wiretapping Laws to Crackdown on Citizens Who Videotape Them

March 9, 2011 @ 12:14AM

NH Cops Use Wiretapping Laws to Crackdown on Citizens Who Videotape Them

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The state whose motto is “Live Free or Die” has been twisting wiretapping laws to criminally charge citizens who record police in public.

And perhaps not so ironic, the three citizens charged with felony wiretapping within the last year were all involved in the Free State Project, the growing community of liberty-minded activists moving to New Hampshire.

All three citizens were arrested by the Weare Police Department.

The most recent case involves a man named William Alleman, 51, who was pulled over last July for a traffic stop, but was not charged with felony wiretapping until late last month.

According to the UnionLeader:

Alleman said the incident began after he left a gathering to support Palmer's Tavern owner George Hodgdon, whose arrest days earlier for interfering with an assault investigation caused many to publicly criticize the Weare police.

Alleman said he was followed by a police officer when he left the gathering, attended mostly by members of the libertarian activist group, the Free State Project.

As Officer Brian Montplaisir approached his vehicle, Alleman called Porcupine411, described as “an answering service for Libertarian activists who are in trouble with police.”

The ensuing conversation then ended up recorded on a voice message.

Now Alleman is facing seven years in prison.

However, Alleman has retained the same attorney who represented two other Free State Project members who were arrested last year on similar charges, but had their cases dropped.

Attorney Seth Hipple, of the Martin and Hipple law office, is representing Alleman as well as Carla Gericke and William Rodriguez, who were arrested on the same charge in March 2010 after Gericke began videotaping a police traffic stop. Their charges were later dropped.

But Weare police have yet to return Carla Gericke’s cell phone, even though it’s been seven months since the charges were dropped.

Meanwhile, a democratic state senator named Joel Winters has launched a house committee to examine that law that police are using to arrest citizens for recording them in public, while they have the right to videotape citizens without their consent.

“If someone is recording you without your knowledge or consent, that’s the purpose of the wiretapping law, to protect you,” Winter said. “The way it’s been interpreted by some in law enforcement is that recording in public is a violation of the law. I don’t think that’s the right interpretation.”

So maybe New Hampshire will see a bill introduced similar to the one in Connecticut that would give citizens the right to sue cops who arrest them for videotaping in public.

Comments

Duane Kerzic

11 months ago

Interesting. I think the judge in Maryland probably already solved this one. It seems that in NH ""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." The judge ruled in that case that police officers don't have an expectation that their conversation in the course of a traffic stop are private.

I especially think that police officers in the conduct of the peoples business should not be allowed to claim any kind of protection from being videocorded.

If they aren't doing anything wrong they don't have anything to be worried about.

IceTrey

11 months ago

Not only that but at most he can only be charged with a misdemeanor.

"I-a. A person is guilty of a misdemeanor if, except as otherwise specifically provided in this chapter or without consent of all parties to the communication, the person knowingly intercepts a telecommunication or oral communication when the person is a PARTY to the communication or with the prior consent of one of the parties to the communication, but without the approval required by RSA 570-A:2, II(d)."

Robert

11 months ago

I am always stunned by these wiretapping claims.
How would these cops treat the people in Egypt, filming police-officers plowing their cars through crowds? I guess they would be on the side of the officers, as they have an expectation of privacy.

hal

11 months ago

robert:
its always the same in the way they attempt to do in a police state, they are in the right and we are in the wrong, no matter what! just a little LAW wiggle....heya?
I mean, if they cant get us to stop using video to capture what they do, "marshall law" would never work. would it?
the USA would be exactly like egypt, where THEY would be stopping any type of recording of what was really going on!!!
and they would have a harder time doing that, if they couldnt outlaw it!

Tijuana Joe

11 months ago

Well, thinking practically, no one has ever gone
to jail for this trumped up charge: wiretapping cops in public.
So the DA is just a tool for the cops,
and has to face a losing case, and potentially
malicious prosecution charges. What they deserve for their cowardice.

Duane Kerzic

11 months ago

One person in MA went to jail but he used a hidden recorder to make the recording, if he had left the recorder in plain view he would not have.

The reason for any charges is that it serves as a form of prior restraint on others, people tend to do things to avoid being arrested in the first place. The cops are very aware of this which is why they are doing this.

If you are charged, even if you are eventually found not guilty, ask for a declaration of innocence and receive it, or the charges are dropped I can tell you from experience that being charged with a crime is an emotional and physical roller coaster. First of all they might beat on you while claiming you are resisting as happened to Carlos. How many other times have we seen that? You get handcuffed. You get hauled off to some holding cell, finger printed, photographed, searched, and might even get locked in the county jail for days until you can make bail or are allowed to make bail.

Then you get the pleasure of hiring an attorney. This is a criminal case so it's not like they get hired based on the fact that there might be recovery of damages. You have to pay for it, most times they want a retainer in the range of five to ten thousand dollars depending on the case just to take you, if you don't have any money and get a public defender you're lucky. When the judge or the prosecutor finally throws out the charges you still get to pay your attorney at some obscene rate for the time that was spent working on your case. It could be many hours, attorneys are pros at finding billable hours.

Assuming you aren't found guilty you get to decide if you can bring a 42 USC sec. 1988 claim, maybe you can maybe you can't. Another interaction with the courts and the justice system. There will be all kinds of delays. You will get to answer interrogatories, attend depositions and motion hearings. If there is a settlement it won't come until the trial is about to start, which will be years. You'll miss work, you'll miss other things you want to do to go to all of these things. On the other hand the police officers involved will probably get overtime to attend all these things. The departments will do there best to insure that the inconvenience on the officers is as small as can be, after all they were just doing their job, abusing the citizens.

What's needed is a federal law making it a criminal offense for a police officer to in any way harass a citizen for recording them while preforming their duties. Until we start locking up cops for this stuff it will continue.

11 months ago

D. K. can you elaborate more on this person who went to jail? Were they convicted? I don't doubt you at all but I would like more info on the case.
Thanks, TS

Duane Kerzic

11 months ago

here you are, http://caselaw.findlaw.com/ma-supreme-judicial-court/1330122.html

Enjoy.

11 months ago

Thanks D. K.

This happened back in '99 wow! Even pre 9/11. It just makes my blood boil. Uggg. Not only the cops were wrong, so is the judge. I don't give a rat's ass what the state law blabitty blabitty blaa says. Its the UNITED STATES of America. I can under stand state laws for state issues but not when they are unconstitutional and are in conflict with supreme court and the constitution. Women and blacks are allowed to vote in each state. What if Arizona said blacks can't vote. Would stupid ass cops try to arrest any black people that vote and judges and DA's go along with it? jeeezzzuuuusss christ.

Keep up the good work Carlos. You know it may not be just about photographers rights but it still makes me mad as hell.

Guy Fawkes

11 months ago

Bone headed law enforcement officials are going to continue to abuse wiretapping laws because they don't like being filmed. What is really needed is a federal law affirming the right to film officials in public areas, with a punitive aspect for officers who choose to ignore the law and harass people for filming them.
Unfortunately there is no one with enough clout to push such a bill through congre$$, whose time is usually spent on corporations bills.

Fascist Nation

11 months ago

They don't need a new law; hit them in federal court under a 42USC1983 civil rights violation. You have the right to record all conversations with government oaficials in public and who are ostensibly in the performance of their duties. An arrest, seizure, intimidation or prevention of that recording violates your First, Fourth and Ninth Amendment Rights and exceeds the lawful authority of the offending government officials. Sue the prosecutor(s) as well---they are the ones who probably added the charges and in doing so exceeded their lawful authority with a bogus interpretation and twisting of the wiretapping laws in an effort to intimidate not only the person arrested but anyone who might wish to record their own or other's interactions with public servants as well.

Don't wait 6 months, sue immediately. You right to demand copies of and preservation of any evidence held by any government is at it's highest in federal civil court---even greater powers than if you were on trial for murder. Seize the day!

11 months ago

Nation - Why haven't people done what you suggest? Is it just to much bullshit to go through to get it done. Is it just easier to go to jail for a little while. Is it too hard to get/pay a lawyer to defend you? I'm not asking you directly, I just don't know, so, if anyone can answer let me know.

I think I would quit my job if I had to, borrow money, or what ever I had to do just to "clear" my name and then go to the ends of the earth to get a law suit against everyone involved in my prosecution from the cop to the judge/city or state.

Scott

11 months ago

I am reading this thread while watching the live protests of the union workers in Wisconsin. If this were in New Hampshire would the camerman from the news be guilty of the same twisted law that the police are attempting to enforce?
I hear a lot of people protesting and I am pretty sure that all of them did not give consent.

There has to be similar situations in New Hampshire where a news crew films and audio records random people in a crowd situation. Why couldn't someone initiate a citizens arrest of the camerman? In that case the news station would have to defend themselves. Even better if you do it to a national news crew.

Then let the news organizations fight it out in court. They have the money and need to do it. Do this enough times - which would in effect block a news crew from being able to report the news - and this treatment will quickly go away.

Duane Kerzic

11 months ago

The law in every state is different and there is a federal law as well. A good place to start to find out what the law is is at the Reporters Committee for Freedom of the Press, http://rcfp.org/taping/.

Wisconsin is a single party state, http://rcfp.org/taping/states/wisconsin.html, as are most. These arrests seems to be popping up more in states that are dual party states where both have to consent to the recording, of course the cop is going to say he doesn't consent. Then it comes down to if the state has a reasonable expectation of privacy clause and if the persons recorded can claim one.

Most of these laws are 40 years old. It seems that hooking up to other peoples telephone lines and recording of conversations in other places must have been happening a lot, certainly it was by law enforcement and others in goverment, think Watergate Tapes. Also recording devices were getting smaller and cheaper and better microphones were available like the ones they listen in on the huddle in a pro football game with.

Does a uniformed officer in the performance of a roadside stop have a resonable expectation of privacy? I don't think so. Should you be allowed to secretly tape him, I think that's probably ok. But if you're in a park talking to a friend do you care is someone far enough away with a fancy microphone is listening in?

11 months ago

"But if you're in a park talking to a friend do you care is someone far enough away with a fancy microphone is listening in?"

Interesting question. What if I thought my wife was cheating and I used a fancy microphone to see what her and another man were talking about? (btw I'm not married) Could she have me arrested? What if i heard my neighbors yelling really loud and I recorded it for the landlord to lodge a complaint? Interesting stuff.

My initial thoughts are that if you are in public on public property you have very limited expectation of privacy. Would you have sex or take a shower or use the restroom in public? And if you are in a private place (home/apt etc..) and you are doing something let's say over the top like stacking up your 10 Marshall guitar amps and cranking them to 11, well you've maybe lost a little of your expectation of privacy.

Just my thoughts and I'm open to changing them :)

Guy Fawkes

11 months ago

I don't agree with Alleman being prosecuted, but in this instance they may have a better case than usual in that the cop may claim he wasn't aware he was being recorded at the time, hence wiretapping. This is different from most of the so called "wiretapping" cases, where someone was filming police with an obvious camera in a public area. In those cases the police can't claim they didn't know they were being filmed as there is usually one or more cops recorded trying to browbeat the person taking video into shutting off the camera.

J. Ramsey

5 months ago