Police officers Jameson Williams and Clay Canning responded to a call that Dziewit was screaming and disturbing the tenants of the buildings. She refused to cooperate and they were proceeding to taken her into custody for disorderly conduct and an open container violation when she activated her smart phone to record. It was very similar to a case out of Indiana that we discussed previously.
Dziewit is described as “irate,” “belligerent” and having “a strong odor of alcohol emanating from her person.” She reportedly demanded that the police also arrest two men that she had gone to the bar with that night. The police were booking Dziewit when she reportedly started to scream “something to the effect of, ‘I’ve been recording this thing the whole time, my phone is in my purse, see you in court.’” Police discovered the phone (along with a half-empty pint of Five O’clock Vodka seized from her purse) and she was charged with unlawful wiretapping. Note that this recording concerned a public arrest.
Massachusetts is a two-party consent state that makes it illegal to record someone’s voice without the person’s knowledge or permission. Chapter 272, Section 99 of the General Laws criminalizes any act “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.”
Dziewit is clearly not compelling if the alleged misconduct is true. Her companions said that they were driving home when she became upset and got out of the car and slapped one of the men. However, that does not alter the question involving the wiretapping charge. Police and prosecutors continue to prevent recordings that constitute the single most effective weapon against police abuse. These statutes clearly were not meant to protect the police from citizens. To the extent that it criminalizes recording in public places it run afoul of the same rights detailed in prior rulings for citizens.
Springfield Police Capt. Harry Kastrinakis has allowed this charge in full knowledge that it would deter citizens from recording officers in public – a result that would radically reduce the ability to hold police accountable. There is no indication in this case that there was police abuse, which makes it a good case to try to curtail the rights of citizens generally.
What is curious is that this effort is continuing by the prosecutors despite the earlier case from Boston in 2011 where an attorney was found to have been unlawfully arrested for videotaping police in public. Of course, that was done openly rather than surreptitiously. However, the taping still captured statements made to a citizen in a public setting. As noted above, we continue to see the abuse of citizens who are detained or arrested for filming police in public. (For prior columns, click here and here). Despite consistent rulings upholding the right of citizens to film police in public, these abuses continue.
These cases show a continuing hostility by both prosecutors and police to this technology and the often determinative evidence that it produces in cases that were once dismissed as mere conflicts between the accounts of police and a citizen. Massachusetts continues (with Illinois) to be one of the most hostile states for citizens in using this protected right. This case represents a worrisome factual twist on the surreptitious surveillance that can raise yet another avenue for arrests.
Source: MassLive