Videotaping of Sequim Chief at Issue in Case By Kathy George, Seattle Post-Intelligencer
The police chief of Sequim did not take kindly to the young man who filmed him as he sat in his patrol car at the town’s skateboard park.
The chief warned Anthony Johnson to point his video camera elsewhere, then wrestled the camera away and put Johnson in jail for recording communication without permission, court records say.
Now, the city may have to pay damages to Johnson for that January 2000 arrest, and police throughout the Western states will be affected by a ruling on Johnson’s lawsuit claiming that police have no right to privacy in performing their public duties.
A 9th Circuit U.S. Court of Appeals panel last week reinstated Johnson’s suit, which had been thrown out by a federal magistrate in Tacoma, and issued a ruling that expanded the public’s ability to record the words and actions of police officers.
“It shows they are not going to allow police to operate under a veil of secrecy. That’s especially important given the increased police presence in America today,” said R. Stuart Phillips, the Poulsbo attorney representing Johnson.
Meanwhile, a similar case also handled by Phillips will be argued before the U.S. Supreme Court Monday.
The hot issue in that suit, brought by a Bremerton man who was arrested for videotaping a state trooper during a traffic stop, is whether he could be arrested for illegal recording although the real cause for arrest was for an unrelated crime. The state attorney general will defend the State Patrol in the case.
In the Sequim case, the 9th Circuit panel said the arrest violated Johnson’s civil rights because the police chief “could not have had any reasonable expectation of privacy” sitting in a police car at a public park, with the window rolled down, talking to a police radio dispatcher.
One dissenting judge said the ruling could restrain what police say to emergency dispatchers.
And Sequim City Manager Bill Elliott said the ruling has wiped out the privacy that police in Washington had counted on.
“I totally disagree with it. The ramifications of it are pretty severe,” said Elliott.
Others were less alarmed. Seattle Police Officers Guild President Kevin Haistings said most officers already think they can be filmed all the time, and any photographer who gets in the way of an officer’s work can be arrested for obstructing an arrest.
John Strait, who teaches criminal procedure at Seattle University Law School, said: “Officers are public servants. What they’re engaged in is, in fact, the public business.”
The ruling is the latest in a series of 9th Circuit Court opinions narrowing the application of Washington’s Privacy Act to police.
That law generally makes it illegal to record a private conversation without permission from everyone involved. The question is when an officer talks in “private.”
Last year, the court granted a new trial to the Bremerton man, Jerome Alford, agreeing that he was wrongly arrested for videotaping the trooper. The court said Alford’s traffic stop was not private, even though it was on a dark and deserted highway with no witnesses.
The U.S. Supreme Court will not re-examine that privacy issue, but agreed to review whether the troopers should be immune from suit because they thought they could have arrested him for different, unrelated conduct.
In the Sequim case, former Chief Byron Nelson, who is now retired, arrested Johnson for trying to record a call that he was about to make to a police radio dispatcher about a runaway child.
That wasn’t private, either, the court found, partly because members of the public routinely use police radio scanners to listen to dispatch activities.
Nelson also didn’t act as if he expected privacy because he left the car windows open when he saw Johnson videotaping him, the court said.
Judge Ronald Gould dissented, saying the majority opinion went too far in denying privacy to the chief, even though he was not making an arrest and was sitting in an empty parking lot.
“Our holding has the potential to limit the use of police communications with dispatch,” he said.
But Haistings said he doubts the ruling would affect anyone’s job.
“It’s not uncommon after the Rodney King thing” for officers to be filmed, he said, referring to the infamous 1991 beating of a black man by Los Angeles police captured on film by a witness.
“None of us like being videotaped, but I think most officers assume somebody’s always rolling tape somewhere,” Haistings said.