The other night, Pennsylvania-based photographer Jason Macchioni decided to visit a local overpass in Elizabethtown to take some photos for a time-lapse video he’s been putting together. As he was working, capturing images of the traffic rushing below him, he was stopped and beleaguered by Northwest Regional Police Officers Charles Tobias and Harry Cleland. Luckily for us, and Macchioni himself, he was able to capture footage, shown above, of nearly the entire confrontation
Upon review of the incident, it doesn’t take much to realize who was ultimately at fault. Aside from the fact that Tobias’s demand of asking for Macchioni’s identification suggests that he had reasonable suspicion to believe that Macchioni was committing a crime, something that is obviously wasn’t the case, allegations of “wiretapping” began to be thrown around in lieu of Macchioni’s documentation of the situation. Just to clear some things up pertaining to the wiretap laws in Pennsylvania, it is two-party-consent law that makes it a crime to intercept or record a conversation unless all parties of the conversation give consent. However, in Macchioni’s case, the law doesn’t cover conversations when the speakers do not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.” Because of this, a conversation in a public place can be recorded without consent. In addition to that, Macchioni was a player in the party, as well. He couldn’t have been charged with wiretapping. Perhaps Macchioni’s situation was a confrontation where police officers beat their chests and abused their power.
Since his irritating confrontation with Tobias and Cleland, Macchioni has enlisted the help of the American Civil Liberties Union (ACLU). Earlier this month, we covered an article concerning the rights of a photographer, established by the ACLU, which can be viewed here. It is a great tool for all of you visual creatives out there – you never know when you might get stopped by the cops for doing nothing wrong.
These two idiots were the ones committing the crime! I am a recently retired Lake County (Ca) Deputy Sheriff turned semi-pro photographer. Most states’ laws are similar. In California the laws for recording conversation are the same. In this case there was no expectation of privacy & thus the recording of voice & video would be legal (remember Rodney King?). In fact, it is common now to see people recording a law enforcement officer’s encounter with someone in public, likely hoping to strike it rich.
The officer has the right to ask for (request!) a person’s driver’s license anytime. They do not have the right to demand & intimidate someone in order to obtain it. Something to consider: there are laws in some states regulating roadside activities, which if there were, a police officer HAS the right to demand identification.
In this case, after he was harassed for recording the officers, Jason could believe himself “detained”, meaning that he was not free to leave OR just go about his business. That “detention” was unlawful under the US Constitution! In addition, Officer Cleland was citing racial slurs, at least a violation of their department’s policies, if not state law. If they don’t like being recorded, they need to get a different job. Based on their actions they should be forced to do so!
David,
You’re a cop! I have a question. If there is no crime being committed, then isn’t it sufficient for the individual being questioned to just supply the police with his or her name and not their license? If that’s true, I don’t see why the officer was on Macchioni’s behind about the damn license. From what I understand, there has to be reasonable suspicion for the officer to even request to see his identification… I wonder if PA has that law about roadside activity.
The footage and recordings serve as evidence for Macchioni. The guy seems somewhat knowledgable on the laws that pertain to HIM. He gave into the cops to avoid being arrested, but if he was arrested, I wonder if his footage would be admissible in court, and if so, what the judge would rule. There was definitely a lot of unconstitutionality going down.
I can only make a comment based on Cali law, but he doesn’t even need to give his name to the officers. He can just move away or ignore them. The reason for asking for picture identification, such as a drivers license, is two fold.
1. The officer can confirm that the name given him is the person’s real name, since it is a crime to give an officer a false name. In Cali, if it is just a made up name that doesn’t lead back to a real person it is a misdemeanor. If the name given is a real person, such as a brother, etc., it is a felony. The reason for the difference is that if someone is issued a citation or an arrest in another’s name, it can cause a mountain of problems for the person who’s name was given. They may have to hire a lawyer to prove it wasn’t really them.
2. If an officer has a photo ID, they can run a “wants & warrants” check on the person to see if there are any outstanding charges or a warrant of arrest issued for that person.
If arrested, I’m almost positive the film of the incident would be admissible as evidence in a state like Cali where there is no expectation of privacy in public. If you want to know more, click on the link below the article titled “Learning Your Rights As A Photographer . . .. It is a quick & easy to understand resource regarding a photographer’s rights, although there are a couple of minor mistakes in it.