Bloggers File Motion To Dismiss Felony Wiretapping Charges

For those unfamiliar with our story, CopBlock.org contributors Pete Eyre and myself stand accused of resisting arrest, trespassing, and felony wiretapping for an incident that occurred this past July. (Pete has also been charged with VIN manipulation and unlawful possession of ammunition.) These lame, trumped-up charges are not only a burden on our lives, they’re a complete and utter joke, and if you live in (or near) Greenfield, MA then you’re among those footing the bill for all of this nonsense.

Courts across the country have ruled that wiretapping laws do not apply to public servants in the same way they do private citizens. The Supreme Court ruled in United States v. U.S. Dist. Court for E. Dist. of Mich.Courts that, “incidents relating to public employment are frequently found not to be private. Additionally, public employees do not enjoy First Amendment protection in words spoken as part of public employment.” Meaning that regardless of the language of wiretapping laws, it still doesn’t apply to public officials who are conducting their duties in public, while being paid with public (i.e. tax) money.

As if the national precedent weren’t enough, time and again, judges presiding over courts within the so-called ‘Commonwealth of Massachusetts’ have dismissed these kinds of bogus charges, brought by police and district attorneys who’d rather not have their activities recorded and consequently subject to public scrutiny. Emily Peyton (while in Greenfiled, MA), Simon Glik, Jon Surmacz and Michael Hyde have all been charged with felony wiretapping, yet everyone but Hyde had their charges dropped. The ostensible reason for Hyde’s disparate treatment is the fact that all of the others were recording “in plain sight” – Hyde had his recorder inside his jacket. With the exception of Commonwealth v. Hyde (who should have gotten off as well, IMO), all of these MA courts have ruled that “knowledge of police officers through ‘plain view’ recording is enough to satisfy all-party consent requirements” in wiretapping cases. Meaning that if the police can clearly see your recording device, it doesn’t matter if they explicitly consent or not, they can’t infringe on your right to gather information on public officials.

As if you need yet another reason to see how silly it is to charge people with violating this ridiculous law, I have one more. It’s called the “expectation of privacy,” and it doesn’t matter if you’re a cop, the mayor, or just a regular Joe. Expectation of privacy covers public spaces and the amount of privacy you can expect in these areas. Most would agree that the gas station doesn’t need your permission to film you getting their gas. Why is that? Because you don’t have any reason to believe your actions are private in such space. The same goes for when you visit the bank. You don’t need to be told you’re on video, you should assume it, whether or not you see cameras or signs informing you of their presence. Indeed, the same principle should, and legally does, apply to the police. If you decide to film them, or say, a stalker, parked outside your house, neither party can have you charged with wiretapping, because they’re both in public and therefore have no expectation of privacy, regardless of their reason for being there.

So, taking these three points into consideration, I drafted a motion (below), hoping the court would apply basic logic and dismiss all the charges. If you’d like to express your thoughts to Greenfield’s judiciary, feel free to write the district attorney or clerk of courts.

Clerk of Courts – Magistrates Office 425 Main St Greenfield, MA 01301

OR

DA’s Office: Jeffery Bengtson 13 Conway St. Greenfield, MA 01301

Motion To Dismiss Case Numbers: 104BR1141 – 104BR1142

Copies of this motion have been sent, via certified US mail, to the Greenfield (MA) district attorneys office and Greenfield (MA) clerk of courts.

Adam M. Mueller and Pete Eyre (referred to as ‘the victims’) are requesting a motion to dismiss the charge – felony Unlawful wiretap – 272.99-F-O – due to facts listed below.  “The victims” will be in court on March 14th, 2011 to present this motion to the district court judge.The presentation of this motion starts with defining felony Wiretapping.

  • Wiretapping is defined as:  willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.
  • *Note* The term interception” means 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; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

It’s “the victims” understanding, backed by statements given in discovery and previous rulings/cases throughout Massachusetts, that the wiretapping law of Massachusetts is intended to prevent, or deter, individuals from recording one another in secret, without the consent of all parties involved. Further more, the wiretapping law is not relevant to public officials who are conducting their ‘public’ duties (see attached documents). The Constitution of the United States clarifies this with the first amendment, asserting one’s right to freedom of the press, but one could also argue that individuals have no expectation of privacy while in public space/buildings, especially public employees.

Therefore, since there is no law against “openly recording” anybody in public spaces (including jail lobbies) or recordings where all parties present are aware (see officer reports) of such recording the charges should be dismissed (see attachments).

Not only were “the victims” openly recording the events but they had lengthy discussions with several Franklin Co Sheriffs and Todd M. Dodge of the Greenfield Police Department about the recording. Which means all parties involved knew they were being recorded and voluntarily remained within the radius of “the victims” recording equipment (cameras).

“The victims” are asking the court to view the security footage, provided by the District Attorney’s Office, from the jail on July 1st, 2010. The recording doesn’t show the whole incident but it does prove that “the victims” we’re NOT SECRETLY recording on July 1st, 2010 at the Franklin Co Jail. Due to such clear and undeniable evidence “the victims” ask that the felony wiretapping charges (MA statute 272.99-F-O) be dismissed and a letter of apology be issued to “the victims.”

Attachments:

Tagged Statements within Glik Motion: (*NOTE – 1.1 is a reference to our notes and won’t be seen on the link above*)

  • 1.1 – Argued successfully, via Commonwealth v. Hyde, that the wiretapping law of Massachusetts’s is intended for ‘secretive and intentional’ recordings.’
  • 1.2 – States that “there is no indication that the defendant’s actions and words were ‘secret’ or otherwise known as defining Plain Sight. This also applies to “the victims” case today.
  • 1.3 – Further rulings and case law about plain view and interception, as defined by MA law.
  • 1.4 – Argues police discomfort, which is all that took place on July 1st, 2010, does not make a lawful exercise of a First Amendment right a crime.

Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers

by Lisa A. Skehill (Attachment B)

Tagged Statements: (*NOTE* – I’ve changed the points to reflect the footnotes to the above link. Example 22 & 23 are footnotes to the above link)

  • 22 & 23 – Preventing Oversight for Police Misconduct and Plain Sight
  • 26 – MA v. Wright, stating most cameras are equipped with both video and audio.
  • 28 – Glik Dismissal – openly recording
  • 31 – Hyde Ruling – no violation of wiretapping can exist if device is held in ‘plain view’
  • 34 – Police Incentive – police will claim they don’t know about recording opposed to disciplinary actions
  • 48 – Glik and First Amendment – Discomfort vs First Amendment right
  • 83 & 84 – Do officers have equal privacy rights?
  • 88, 89 & 90 – Two Prong Approach – Katz v. United States ,objective and subjective reasonableness
  • 91 & 92 – Privacy of Public officials – public officials have a lower standard of privacy
  • 126 & 128 – Benefits to Recording Police – invaluable to both citizens and officer, also provides clarity
  • 152 – Smith v. City of Cummings – recognizes the right of private citizens to record public officials on public property, like jails.
  • 153 – Filming maters of public interest – wiretapping does not apply to matters of public officials
  • 160 – Jean v. MA State Police – right to publish matters of public concern, such as police misconduct, outweighs any privacy rights of police officers
  • 172 – More Government Privacy – touches again on expectation of privacy of public officials
  • 183 – Hyde v. MA – Public Right to Record and Gather information
  • 196 – Right to Record – being of great importance to society as a means of accountability
  • 203 – True Purpose of Wiretapping – cites facts about true intention of law, as well as highlighting its reverse nature today. Wiretapping is becoming the shield and the sword today
  • 228 – Hidden Gem – Hyde decision states, “if Hyde had held his tape recorder in plain view, he would have been free from prosecution”
  • 230 – MA v. Glik – clarifies once an “officer realizes they’re being recorded, it appears consent is no longer required”
  • 237 – Nullify Wiretapping – Plain sight ultimately nullifies the anti-wiretapping
Officer Reports

Reports were provided by the state and are within the case file

Statements from law enforcement reports proving all parties had knowledge of recording:

  • Franklin Co Sheriff (FCS) Christopher Newbrough states, “The two makes were holding what appeared to be hand held camcorders and they appeared to be filming our conversation.”
  • FCS Brian Schindler stated, “Both individuals were holding camcorders with the viewers open as if they were recording.”
  • FCS Jordan Lehtomaki stated, “On 7-01-10 at 1800 hrs Officer Newbrough informed me that there were two male subjects with video cameras in the lobby reception here to bail Paul, Richard.”
  • FCS Leslie Troczynski said, “I noticed that both men were holding video cameras in their hands.”

All quotes and statements below are from Todd M Dodge’s report (ref 10-693-AR)

Dodge Reports found here – scroll down to Reports -Dodge 1, 2, 3 & 4

  • “Dispatcher Sinclair indicated that two males are reportedly wearing ‘Cop Block’ T-shits and are audio and video recording the events inside the lobby of the Sheriff’s Dept.”
  • “Capt. Schindler stated that his staff observed that they both were carrying audio/video recorders..”
  • “I observed that they (‘the victims’) were both carrying audio/video cameras..”
  • “Both stated backing away from me while still recording our interaction.”
  • “I observed that one of the males was also wearing a small recording device around his neck attached to a metal type necklace.”
  • “I explained to them that if they continued to refuse the Capt.’s requests that they would be placed under arrest for trespassing.”

*Note: In order to view the security video a DVD player and TV will need to be in court.*

(Authors Note: After completing this post I was notified that our motion will be heard on Tue, March 17th, 2010 at 9:00 am)

EPN

Ademo Freeman

was born and raised in Wisconsin, traveled the country in a RV dubbed “MARV” and is an advocate of a voluntary society, where force is replaced with voluntary interactions. He’s partaken in projects such as, Motorhome Diaries, Liberty on Tour, Free Keene, Free Talk Live and is the Founder of CopBlock.org.
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  • Jenn

    Go kick some ass.

  • I hope everything works out for you guys. I have to admit I’m nervous. Do us all a favor and trounce them.

  • Al E.

    When a person is charged by police, and all charges later dropped, it renders the officers decision to arrest and charge as being “outside” their “covered” position as a law officer. It appears that these officers should be sued as private citizens since their actions were not in accordance with their assigned responsibilities. Therefore, it would be the same as a “private citizen” detaining someone for something that didn’t actually happen. We as private citizens, having detained someone, and that perceived charge later being rendered incorrect, would leave us open to being sued for our incorrect and unlawful actions.

    For now, police officers appear to be immune to repercussions of false arrest, and the same goes for prosecutors for the false charges. If the individuals that abuse their sworn duty are not subject to repercussions, they will undoubtedly continue this abuse.

    Police officers are afraid of having their actions recorded because they don’t know their jobs well enough. They don’t know whether they are operating within the bounds set by law, and they don’t want to be caught violating these bounds. When you operate within the bounds of law, being video taped and recorded only proves that you were performing your job in accordance with prescribed procedures and laws.

    Maybe we need to raise the bar when we hire police officers. Perhaps a high school education and a 3-9 month training course at a police academy are not enough. Our police departments are not weeding out hot heads and power hungry individuals. I have no problem paying for better educated, intellectually capable, proficient officers, capable of meeting and maintaining a physical standard. These officers represent us, and that reflects on our communities, in both appearance and behavior. Arrests should be made with reluctance and as a last resort.

    My interest in this stems from being a photographer, and my responsibility of learning the laws as they pertain to my activities. As I have this responsibility, to a greater degree, so do those individuals that serve the community.

  • Fedupwithmorons

    In a law suit against law enforcement, you sue the city or county, the chief or sheriff, the officers. The officers can be sued punitively which generally means it comes out of their personal pockets. Also, a Monell claim can be filed for the agency’s failure to train their people.

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