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Filming police officer not invasion of privacy

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Filming police officer not invasion of privacy

  • The U.S. Court of Appeals ruled that the state of Washington’s Privacy Act does not prohibit filming a police officer, allowing a civil rights lawsuit against the officer to advance.

Nov. 5, 2004 — A police chief in his patrol car talking to dispatchers did not have a reasonable expectation of privacy and may be sued by a man arrested for filming him, a three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) has ruled. The full court declined to rehear the case last week.

On Jan. 28, 2000, Anthony Johnson filmed Byron Nelson, then-police chief of Sequim, Wash., as he talked with dispatchers from his patrol car. Nelson, who has since retired, was looking for a missing juvenile at a public skateboard park where Johnson was filming friends.

After twice telling Johnson that it was illegal to record conversations without consent, Nelson and another officer physically struggled with Johnson, seized the camera and arrested him. Johnson spent three days in jail.

Johnson was charged with violating the Washington Privacy Act, which bars intercepting or recording a private conversation without the consent of all participants. The trial court dismissed the charges after finding that Nelson had no expectation of privacy because he parked his patrol car with the windows rolled down in a public place.

Johnson sued Nelson, the city, and others in U.S. District Court in Tacoma for violating his First Amendment rights and Fourth Amendment prohibitions against unreasonable search and seizure. The district court dismissed the suit, but the Court of Appeals reversed after Johnson appealed.

“It is undisputed that Johnson recorded Chief Nelson while he was on duty performing an official function in a public place,” Judge Kim M. Wardlaw wrote for the 2-1 majority. “Johnson did not violate the Privacy Act when he recorded this official, public activity.”

Wardlaw also held that Nelson had no reasonable expectation of privacy because he knowingly exposed his conversation to the public.

“If Chief Nelson had wished to keep the radio communications from the public, he should have rolled up the driver’s window, and refrained from rolling down a second window, where Johnson was standing next to the car with his video camera pointed inside,” Wardlaw wrote.

“[T]here is no reasonable expectation of privacy in communications over police dispatch radio in any event because those communications are knowingly exposed to the public by virtue of their transmission,” she added, noting that widely available scanners made the transmission available to the general public.

Judge Ronald M. Gould dissented, arguing that the question of whether the state Privacy Act applied should be sent to the Washington State Supreme Court.

The full court of appeals declined to rehear the case Oct. 25, allowing Johnson’s civil rights lawsuit to go forward.

(Johnson v. Hawe; Media Counsel: R. Stuart Phillips, Phillips Law Group, Poulsbo, Wash.) GP

© 2004 The Reporters Committee for Freedom of the Press

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