Backstage concert video doesn't violate Mich. wiretap law

Rap concert organizers did not violate a police official’s privacy when they recorded the officer’s backstage comments and included them in a DVD, the Michigan Supreme Court ruled last week.

However, the 6-1 decision in Bowens v. Ary, Inc. was a narrow one limited to the event in question and stopped short of holding that police officers have no reasonable expectation of privacy when performing their public duties.

The March 18 ruling came as the latest step in a 10-year legal battle between rapper Dr. Dre, whose real name is Andre Young, and several Detroit officials, including City Councilman Gary Brown, who was the city’s police commander at the time of the July 2000 incident.

In the exchange, Brown warned concert organizers that power would be turned off and they would be arrested if they showed an eight-minute video with sexual content and violence during the concert at Joe Louis Arena. The organizers were not receptive to Brown’s demand that the video not be aired and their interaction was antagonistic. The confrontation was recorded and later used in a behind-the-scenes track on a popular DVD highlighting the “Up In Smoke” national concert tour that also featured rap performers Eminem, Snoop Dogg and Ice Cube.

Brown sued Dr. Dre and the concert promoters, alleging that the recording violated the Michigan eavesdropping statute, which prohibits taping private conversations unless all parties to the conversation consent to the recording. Because Brown did not explicitly consent to the recording, the issue for the court was whether the conversation was a private one subject to the eavesdropping statute’s all-party consent requirement. Michigan courts define a private conversation as one in which a person reasonably expects to be free from casual or hostile intrusion or surveillance.

In reversing an intermediate appellate court judgment and holding that the exchange between Brown and the concert organizers was not private, the court rejected Dr. Dre’s argument that police have no reasonable expectation of privacy when doing their job. Rather, several factors specific to this incident compelled such a finding in this case, the court said.

Among those facts: The conversation was held during the hectic hours preceding a high-profile concert in the backstage area of a large arena to which more than 400 people, including local and national media, had passes; the room in which Brown confronted the organizers served as their operational headquarters, and its entrance was manned by security personnel affiliated with them; at least nine identified people and unidentified others were present in the room, and free to come and go from it and listen to the conversations in it as they pleased; and Brown was aware of the presence of multiple camera crews in the vicinity, including one cameraman who was visibly, openly and obviously filming in the room where the conversation occurred while Brown was there.

“Given these facts, plaintiffs could not have reasonably expected that their conversation with defendants would be free from casual or hostile intrusion or surveillance. To the contrary, the conversation strikes us as one that was uniquely defined by both casual and hostile intrusion, and surveillance,” the court said.

The Michigan ruling is among several recent legal challenges to citizen recordings of police conduct.

Last June, a federal judge in Boston denied several police officers’ motion to dismiss a civil lawsuit brought against them by a individual who alleged that the officers violated his civil rights when they arrested him for an alleged violation of Massachusetts’ wiretap statute. The man had visibly and openly used his cellular telephone to record the officers arresting a man on the Boston Common and allegedly using excessive force. In rejecting the officers’ argument that they were immune from liability because any First Amendment right that would bar arrest was not clearly established, the court in Glik v. Cunniffe stated that “in [this jurisdiction], this First Amendment right publicly to record the activities of police officers on public business is clearly established.” The officers have appealed that ruling to the U.S. Court of Appeals in Boston (1st Cir.).

Conversely, the U.S. Court of Appeals in Philadelphia (3rd Cir.) held in October in Kelly v. Carlisle that the right to videotape police officers during traffic stops is not clearly established and, thus, an officer was immune from liability for the plaintiff’s claim that his arrest under the Pennsylvania wiretapping statute violated his First Amendment rights.

However, a Maryland judge in September held that conversations between officers and offenders at traffic stops are not private. Thus, the court in Maryland v. Graber dismissed charges against a motorcyclist arrested under the state’s wiretap law for videotaping his interaction with two state troopers who pulled him over at an exit ramp on Interstate 95 and later posting the video on YouTube.

Most recently, a federal judge in Chicago ruled that, because the First Amendment does not guarantee a right to record police officers engaged in their public duties, the American Civil Liberties Union of Illinois cannot prevent the Cook County State’s attorney from enforcing Illinois’ eavesdropping law. The ACLU has appealed the ruling in ACLU v. Alvarez to the U.S. Court of Appeals in Chicago (7th Cir.)