Asked and Answered . . .


Joseph Richotte on the issue of recording police

By Steve Thorpe
Legal News

When an unarmed black man was shot and killed by a police officer in South Carolina recently, it was video shot by a bystander that showed the police account of the encounter was untrue. The officer was eventually charged with murder. More and more citizens are recording video and audio of police officers, but the laws regarding such recordings, in Michigan and elsewhere, can be confusing. Joseph Richotte is based in Butzel Long’s Bloomfield Hills office and practices in the areas of white collar criminal defense, civil regulatory enforcement, corporate investigations, news media defense, and professional discipline matters for lawyers and judges. Richotte also represents media organizations in First Amendment cases, defamation actions, and open-government issues, such as Freedom of Information Act and Open Meetings Act matters.

Thorpe: Can you give us a quick overview of Michigan’s laws on recording police?

Michigan doesn’t have a law specifically addressing the recording of police officers. Our eavesdropping statute, however, applies whenever someone uses a device of any kind to overhear, record, amplify, or transmit all or part of a private conversation of another. Eavesdropping is a two-year felony offense. Importantly, however, the statute doesn’t apply to a person who is part of the conversation, which makes Michigan a “one-party consent” state and means it is perfectly permissible for you to record a conversation in which you are a participant. But, it is unlawful to record a private conversation if you are not a participant in that conversation. As you might guess, the big question is: “When is a conversation private?”

Thorpe: How does state law define “private” and “private place?”

Although the eavesdropping statute does not define the phrase “private conversation,” it does define the phrase “private place,” which is a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance. In People v. Stone, the Michigan Supreme Court used the definition of “private place” to define a private conversation as one in which a person reasonably expects to be safe from such intrusions or surveillance. Since the Court has tied the definition of private conversation to the definition of a private place, it is important to note that a private place does not include a place to which the public or a substantial group of the public has access. Under this standard, I would think it fairly difficult to argue that a police officer speaking with anyone while performing his duties on public streets, parks, or anywhere else that the public has a lawful right to be present, is having a private conversation in a “private place.”

 Thorpe: Michigan has both a wiretapping statute and an eavesdropping statute. How do those laws differ in their approach to privacy?

The eavesdropping statute is focused more on protecting private conversations from being recorded, while the wiretapping statute is focused more on protecting the facilities by which information is stored or transmitted. In contrast to the eavesdropping statute, the wiretapping statute makes it a two-year felony to willfully and maliciously tap, or otherwise make an unauthorized connection to, any electronic medium of communication, including the Internet, a computer, computer network, or telephone.

 Thorpe: How does the Glik v. Cunniffe decision in the U.S. Court of Appeals affect recording?

The Glik decision recognized that there is a First Amendment right to record police officers carrying out their duties in public. Glik is from the First Circuit, but it may open the door for a similar decision from other Circuits. 

Thorpe: What key points should a citizen keep in mind if they do record police?

There are some practical considerations citizens should keep in mind.

First, police officers are generally authorized to control the scene of an arrest or a traffic stop. If they think you are too close and may interfere or otherwise jeopardize the security or integrity of the scene, they can order you to move away to a reasonable distance.

Second, officers generally will not debate with you. You may have a right to be present and film, but they still have a badge, a gun, and handcuffs. If you refuse to comply with any order—even if the officer is plain wrong—you likely will be arrested and you may even be charged with a crime. Although you would probably have a strong defense, that is a costly course to take, both in terms of the time it will take dealing with the court system and the associated financial costs.

If you think an officer has acted improperly, the better course of action is to get the officer’s name and badge number and make a record of everything that was said. Your camera may do
that for you. But if not, write it all down and contact a lawyer.

 Thorpe: How do you see laws on this subject evolving in an era when nearly every citizen carries a video and recording device in their phone?

At its core, recording the police creates an inherent tension between the public’s need for transparency and our officers’ need to perform their policing function without obstruction. Recent high-profile events, such as the South Carolina case you mentioned, have highlighted the importance of transparency and how recordings of officers can be conducted without interfering with the policing function. Eventually, we will see cases where recordings do impact that function. Legislatures and the courts will have to address the intersection of these competing interests and define the boundaries for such recordings.