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PITTSBURGH - The American Civil Liberties Union of Pennsylvania filed a lawsuit today on behalf of a Fayette County man who was arrested earlier this year for using his cell phone to audio-record a police officer. The suit alleges that the Point Marion Police Department filed retaliatory charges against Gregory Rizer after he complained to the mayor about the officer, who confiscated his cell phone and detained him for recording the officer’s aggressive questioning of his disabled friend. The charge was withdrawn by the district attorney and the cell phone was returned – without the recording.

Rizer was charged with violating the state wiretapping law, which forbids audio recording without the consent of all parties involved. According to the lawsuit, the Pennsylvania Supreme Court has ruled that the state's Wiretap Act does not apply if the person being recorded does not have a reasonable "expectation of privacy."

”The explosion of technology that allows almost every citizen to document and record the interactions between police and civilians makes it incumbent that both the officers and those seeking to record them understand that officers cannot shield themselves from public scrutiny by invoking wiretap laws,” said Glen Downey, Healey & Hornack, P.C., counsel for Rizer and an ACLU cooperating attorney. “Police officers performing their official duties do not possess the requisite reasonable expectation of privacy necessary to be covered by the statute.”

On January 3, 2012, Rizer was at the home of a friend, Shannon Hughes, when Point Marion police officer Kevin Lukart arrived to question Hughes about the whereabouts of Mr. Hughes’ cousin. Rizer felt that Officer Lukart’s questioning was overly aggressive and was concerned for his friend, who is quadriplegic. Rizer took out his cell phone and began recording Officer Lukart’s questioning of Hughes.

When Officer Lukart realized he was being recorded, he seized the cell phone and placed it in his patrol car. When he finished questioning Hughes, Officer Lukart arrested Rizer, placed him in handcuffs and took him to the police station. At the station, Officer Lukart told Rizer that he would release him if Rizer wrote a statement admitting that he had recorded Lukart without his consent. Rizer complied with that request, and Officer Lukart placed the statement and Rizer’s cell phone in a police evidence bag before releasing him.

Two days later, Rizer complained to Point Marion Mayor Carl Ables about Officer Lukart’s conduct and showed him news articles about an investigation into an incident in which Officer Lukart hit a handcuffed suspect, which was caught on tape by a television news crew.

The next day, Officer Lukart and Point Marion Chief of Police Jay Stutler arrested Rizer at his home and charged him with violating the wiretap law. Rizer was taken to the Point Marion police department and then transported to the Fayette County Jail. After being detained for more than five hours, he was released on a $2500 bond.

The Fayette County District Attorney withdrew all criminal charges against Rizer on February 22. When Rizer went to the police department a month later to retrieve his phone, he discovered that the SIM card – the external storage drive for the phone that contained the recording he had made of Officer Lukart questioning his friend – was missing. “This case smacks of unconstitutional retaliation,” said Sara Rose, ACLU-PA staff attorney. “Not only did the police retaliate against Mr. Rizer for exercising his First Amendment right to record a police officer who he believed was inappropriately questioning his friend, but they filed a baseless charge against him after he complained to the mayor about police misconduct.” The lawsuit alleges that the actions of Officer Lukart and Point Marion officials violated Rizer’s First and Fourth Amendment rights by retaliating against him for legitimately gathering information about police activities and confiscating his cell phone. It further charges that Mayor Ables and Chief Stutler retaliated against Rizer for exercising his First Amendment right to report police misconduct when he was arrested following his complaints about Officer Lukart to Ables.

The case is Rizer v. Lukart, et al. More information about the case, including a copy of the complaint, can be found at: http://www.aclupa.org/legal/legaldocket/rizervlukart.htm