SPRINGFIELD – Charging the amateur videographer who captured the alleged police beating of Melvin Jones lll during a 2009 traffic stop with illegal wiretapping sets a dangerous precedent, local activists say.



"I think it would be dangerous if this person were to be charged with a crime," said the Rev. Talbert W. Swan, Springfield branch president of the NAACP. "It would say to the public that we don't have the right to hold law enforcement accountable for their actions."



"When you start charging people who have videotaped police wrongfulness, it borders on, in my opinion, an attempt to silence people," Rep. Benjamin Swan, D-Springfield, said.



From so-called voluntaryists recently celebrating a court victory in Greenfield, to prominent cases in Boston and elsewhere across the nation, the question of whether citizens hold a First Amendment right to video law enforcement personnel doing their jobs has been increasingly in the spotlight.



It comes to a head here in Springfield with the filing of an application for a criminal complaint, made by one of the four police officers disciplined for the incident. Michael Sedergren, claims it was illegal for Tyrisha Greene, who captured the incident on her camera, to videotape him without his consent.



Greene recorded a 20-minute video that included Jones, who is black, being struck repeatedly by a white officer with a flashlight while a group of other white officers stood by without intervening. Sedergren was suspended for 45 days in connection with the incident. Patrolman Jeffrey M. Asher was eventually fired for his role in the alleged beating.



"She obviously thought that she was doing the right thing, that she was not breaking the law," said Greene's lawyer, Daniel D. Kelly, said.

Related links



A similar issue is playing out in Boston where the U.S. Court of Appeals is hearing a case involving the arrest of a passerby who held up his cell phone and openly recorded Boston police officers who were using force to arrest another person on the Boston Common.



Simon Glik, an attorney, was arrested by Boston police in October 2007 and charged with illegal wiretapping and disturbing the peace.



According to the National Law Journal, police charged Glik with violating the Massachusetts Wiretap Act, which prohibits secret audio recordings by "unlawfully intercepting oral communications," aiding in the escape of a prisoner and disturbing the peace.



Talbert Swan said he believes it's a stretch to apply that act in such cases. "I don't believe the spirit of the law that prohibits audiotaping (without the subject's knowledge) carries over to videotaping," he said.



Ann Lambert, a lawyer for the American Civil Liberties Union's Boston office, said the law is designed to combat secret audiotaping of conversations, not amateur videographers, which are rampant. "Just the fact that you're unaware of it doesn't make it illegal," Lambert said. "It doesn't sound like there was anything secret about it at all."



Rapidly-expanding technology is pushing the boundaries in such First Amendment cases, Kelly said. "In all areas of the law, technology is out-pacing the law. I think this is the perfect example of this," he said.

The Massachusetts Supreme Court upheld the state's wiretapping law in 2001 in a case involving an Abington traffic stop. Michael J. Hyde was stopped in October 1998 while driving a Porsche with a loud exhaust system and an unlit rear registration plate. The stop lasted around 20 minutes, during which time Hyde recorded audio of his interaction with the officers.

A week later, Hyde -- who hadn't been issued a citation and wasn't charged with a crime in connection with the stop -- went to the Abington police station to file a complaint about his treatment. He offered his audio recording of the encounter as evidence that he hadn't been confrontational during the stop, as several officers had maintained. He was subsequently charged and convicted on four counts of wiretapping.

Hyde appealed, but the state Supreme Court upheld his conviction. In its decision, the court wrote "We conclude that the Legislature intended G.L. c. 272, § 99, strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge."

In Hyde's case, the court ruled, the sticking point was that he hadn't informed the officers he was using a recording device: "The problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight," the court wrote.

While Hyde's case offers an example of an individual recording audio only, many more recent cases involve the defendant recording video.

Applause filled a courtroom in Greenfield last month after a District Court jury acquitted a pair of New Hampshire men accused of illegally videotaping at the Franklin County House of Correction last summer.

When Pete Eyre and Adam Mueller went to the jail last summer to bail out a friend who had been arrested on drug charges, they brought a video camera, hoping to record the process.



Although the men asked a corrections officer for, and initially received, permission to shoot video, another officer subsequently denied their request. When the pair continued recording, they were arrested by Greenfield police.



Eyre and Mueller stood trial last month to face wiretapping and resisting arrest charges. It took the jury about two hours to acquit them.



A show-cause hearing for Greene's case, during which a clerk-magistrate will vet the alleged evidence against her, is set for Aug. 17 in Chicopee District Court.



Benjamin Swan said legislation, at the state or federal level, may be required, to further address just how citizens can use video when they see wrongdoing by law enforcement personnel and others.



Talbert Swan said police departments nationwide use video with audio to capture their interactions with the public. "There are television shows based on it," he said, adding that any police department that is properly doing its job should "have no concern whether the public is holding a video camera or not."



District Attorney Mark G. Mastroianni this year charged patrolman Derek V. Cook with illegal wiretapping in connection with taping a station-house fight after which he was charged with assaulting two superiors. Cook pleaded guilty to assault and battery of a police officer, and, in a plea-bargained agreement, the wiretapping charge was dropped last month.

