Recording the police during a traffic stop in a public area should be legal at all times and in all ways.
Police frequently, and with good reason, record encounters with private citizens. In turn, private citizens should have the right to preserve the moment themselves, in any manner they choose, whatever their reasoning might be.
What we have, however, is a confusing legal situation where even the law enforcement officers, the prosecutors paid to prosecute and the public defenders aren’t positive themselves when a citizen can or cannot legally record police doing their duties.
Panama City News Herald Reporter Chris Olwell laid out the particulars on a fascinating case involving the Bay County Sheriff’s Office earlier this month (Suit Raises Question of Wiretapping May 11).
Derrick Bacon filed suit in February against Florida’s Bay County, the Sheriff’s Office, Sheriff Frank McKeithen and two deputies.
The two deputies detained Bacon after a November 2012 traffic hearing on suspicion of violating Florida wiretapping law. Bacon admitted during the hearing that he had created an audio recording of his interaction with a deputy during a traffic stop and after the hearing told the deputies that he had secretly recorded the interaction with his phone.
He also volunteered that it was legal to record police working in public with or without their knowledge. The deputies disagreed with his interpretation of the law and charged him with wiretapping, a felony that carries a five-year prison sentence. They also obtained a search warrant for his phone and seized it.
While we can’t know what was going on in the hearts and minds of the officers involved arresting this particular man after he mentioned the recording during a traffic stop, it’s easy to see why he feels he was targeted for doing something he thought was legal. At the same time, if what he said he did wasn’t legal, the fact that it led to him being detained would seem to be the natural course of events.
And while it worked itself out in the end with no formal charges being filed, that doesn’t take away what Bacon went through that day and it doesn’t make the law clearer so the person with the camera or audio recording device knows what he can or can’t do. At the same time, it doesn’t offer law enforcement officers, who we don’t believe are interested in making arrests that will be overruled, the guidance they deserve.
The case is so complex that Doug White, a Chief Assistant Public Defender and Greg Wilson, felony chief for the State Attorney’s Office, had different opinions on whether Bacon’s recording was legal. The prosecutor believes it to be legal and the defense attorney believes it was illegal.
The SAO did the right thing in dropping the case, given the uncertainty even in legal circles. Their formal reason wasn’t uncertainty but that there was no evidence to back up the confession. The recording had apparently been deleted from the phone.
However, if that’s the end of it then nobody wins and the circle of events is bound to repeat itself sooner or later. Officers and citizens need clear direction on what is and isn’t permissible under the law.
The right thing to do, it would seem, is to recognize that just as police record their events for a good reason, free citizens have good reason to be afforded the same opportunity.
— From the Panama City News Herald
