Blog Post Written by: Pete Castleberry, Oregon Criminal Defense Lawyer
Why don’t Oregon police officers want to be recorded on video by civilians? Several recent events would suggest that police do not want to be recorded, and are struggling to find a way to deal with it.
Schlossberg v. Solesbee
Last week, a jury in Eugene’s U.S. District Court determined that police sergeant Bill Solesbee arrested Josh Schlossberg without probable cause, used excessive force and seized Schlosberg’s video camera without a warrant.
Schlossberg had been handing out leaflets when Solesbee appeared and told him he had to move along. Schlossberg told Solesbee that his lawyer had advised him that he was engaged in a lawful activity. Solesbee then went into a building and shortly returned at which point Schlossberg took out a video camera and informed Solesbee that he was recording their conversation. Solesbee accused Schlossberg of blocking pedestrian traffic, and then asked if Schlossberg was taping him.
Solesbee and Schlossberg then argued over whether Schlossberg had notified him that he was recording the conversation. Sergeant Solesbee demanded the camera be given to him saying that it was evidence.
According to Schlossberg’s attorney, Solesbee then charged at Schlossberg, grabbed for his camera and threw Schlossberg to the ground. Solesbee seized the camera and arrested Schlossberg. Schlossberg was charged with resisting arrest and Intercepting Communications. Prosecutors eventually dismissed the charges.
Hao Xeng Vang v. City of Beaverton and Jason Buelt
In 2008, Hao Xeng Vang noticed a friend being detained by Beaverton Police outside of a bowling alley. Vang believed the detention was unjustified and began recording the events using his cell phone. His phone was unconcealed and he stated aloud, “I have it on camera.” As another one of his friends was subsequently arrested, he continued to record and narrated the events on his cell phone. After ten minutes of recording, officer Buelt arrested Vang and seized his cell phone. Vang was sent to Washington County Jail on charges of Interception of Communications.
Vang was released from Washington County Jail the following day, however his cell phone was not returned to him at that time. Almost two months later, Vang’s cell phone was finally returned with the audio and video files from the night of his arrest deleted. Officer Buelt deleted the files a week before the cell phone’s return.
What does Oregon law say about recording/videotaping the police?
Most situations will be governed by two separate, but related laws.
If you record a conversation that you have with a police officer, ORS 165.540 will most likely apply. This law prohibits a person from obtaining the whole or any part of a conversation by means of any device if not all participants in the conversation are specifically informed that their communication is being obtained. Oregon courts have taken the “specifically informed” requirement to mean an “unequivocal warning that the conversation is being ‘obtained.’” Having a video camera in an officer’s face with the record light blinking will NOT be sufficient. Thus, you must actually tell the officer that you are recording the conversation. Violation of this law is a Class A misdemeanor.
It is important to point out that ORS 165.540 carves out an exception allowing people to record conversations during press conferences, public speeches, public or semi-public meetings, rallies, and sporting events. This exception allows people to video tape or record rallies or marches like the Occupy Portland movement. But remember, most one-on-one interactions with a police officer typically will not fall within this exception.
If you, like Mr. Vang mentioned above, are not a participant to the conversation that is being recorded, ORS 165.543 “Interception of Communications” will most likely apply. This law differs from ORS 165.540 in that it specifically requires that the person recording or “intercepting” a conversation or communication, not be a party to the conversation. It also differs in that you may record the communication only so long as some parties to the communication have given prior consent. Violation of this law is a Class A misdemeanor.
The chart below may help in distinguishing the two laws.
ORS 165.540 – Obtaining whole or part of communication ORS 165.543 – Interception of Communication Are you a party to the conversation? YES NO Rules for compliance “specifically inform” officer or other party/parties that you are recording the communication Get prior consent of at least one of the parties being recorded Penalty for violation Class A Misdemeanor Class A Misdemeanor
ORS 165.540 – Obtaining whole or part of communication ORS 165.543 – Interception of Communication
Are you a party to the conversation? YES NO
Rules for compliance “specifically inform” officer or other party/parties that you are recording the communication Get prior consent of at least one of the parties being recorded
Penalty for violation Class A Misdemeanor Class A Misdemeanor
Knowing when you can record a conversation with a police officer without opening yourself up to criminal liability can be difficult to determine. Both laws outlined above are very similar but have distinct requirements to be in compliance. The Schlossberg v. Solesbee case summarized above illustrates the confusing application of the laws. Schlossberg was charged with unlawful Interception of Communication but was a party to the communication he recorded. Unlawful Interception of Communication does not apply to Schlossberg’s situation. The law which governed Schlossberg’s interaction with officer Solesbee should be ORS 165.540 Obtaining Whole or Part of Communication.
If a Eugene prosecutor does not know what law applies to a situation involving someone recording their conversation with a police officer, it seems safe to assume that non-lawyers might also have a hard time knowing which law applies.
New law on the way?
In an attempt to clarify this confusing area of the law, House Bill 2993 was proposed in the Oregon 2011 session. If signed into law, Bill 2993 would essentially allow people to record conversations of any public official or law enforcement officer acting in their official capacity. This would do away with any requirements of specifically informing officers that they are being recorded or getting prior consent of one or more of the parties involved in the communication.
House Bill 2993 is still a ways off from becoming law if ever. Currently, it is best to consult with an attorney if you believe you may find yourself in a situation involving the need to record a conversation with a police officer.