Thursday, February 19, 2009

Unwantedly Watching the Willful Watchers

Testimony on HB312, "permitting a person to record a law enforcement officer in the course of such officer's official duties," in front of the NH House Criminal Justice Committee, 2/19/2009.

And for you RidleyReport fans, here's just Videographer Dave Ridley's testimony.

My collected thoughts from forum posts, etc.:

NH RSA 91-A:1-a,II ("Revised Statutes Annotated") says: "'Governmental proceedings' means the transaction of any functions affecting any or all citizens of the state by a public body."

And RSA 91-A:1-a,VI says: "'Public body' means ... (d) Any ... agency, or authority of any county, town, municipal corporation..." (a cop is an official representative thereof, and if the SPCA guy is operating under color of legal authority, perhaps even deputized...)

And RSA 91-A:2,I says: "a 'meeting' means the convening of a quorum of the membership of a public body, as defined in RSA 91-A:1-a, VI ... for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power." (a cop is a quorum of 1, authorized to act unilaterally upon the alleged matter at hand)

And RSA 91-A:2,II says: "Any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras, and videotape equipment, at such meetings." (particularly if said person is required to be there, one might imagine)

Obviously, especially given the current relative ambiguity, any cop is gonna do whatever he wants, regardless, and always considers intimidation a legitimate tool, whether backed up by facts or not, but it seems to me that he simply has no more authority to prohibit recording than does a legislator in a committee hearing, or a Selectman at a Board meeting. And a solid legal foundation is established by:

"I respectfully decline. You're an officer of a government authority; this is a government proceeding. RSA 91-A:2,II authorizes me to record it."

I'm confident that their invoking wiretap laws over these "governmental proceedings" is a fairly clear violation of RSA 91-A, and we shouldn't simply concede the legality. As Dave Ridley is fond of saying, I think this is a hill worth dying on, in general, but I don't believe that "death" can be the ultimate legal result of making the stand. 'Course, I didn't see how the NH Supreme Court could uphold the 4% ballot access threshold, especially after their reaction to those oral arguments, either, so...

That said, I'm not sure I'm ready yet to commit so fully to this hill, however, although I do/will push the limits. We're talking about a felony, remember. If you record a cop -- your voluntary employee -- they (claim they) can annul your guaranteed inalienable right to self defense. Permanently. And they have the guns to do it. Even, one would imagine, if HB312 (or its posterity) subsequently passes. FOR RECORDING A PUBLIC SERVANT. In performance of ostensibly legal official duties. In your name. A penalty, I would contend, that is an egregious violation of NH Constitution Part First, Articles 18 -- being a sure road to "extermination" -- & 33, oh-just-btw. That's a pretty violent death, both figuratively and literally. How does this happen? How do we allow this to stand and still consider ourselves masters of our servant government?

But again, I still contend that 91-A (not to mention Part First, Art. 8) is a fairly clear exception to the wiretapping statute, RSA 570-A, with respect to government proceedings. House hearings, e.g., are recordable because the whole state can't be in the hearing room. Likewise, police proceedings must be recordable because the whole state can't make it to the traffic stop. To quote Part First, Article 8, "the public’s right of access to governmental proceedings and records shall not be unreasonably restricted." Without a reasonable and articulable exception (and the law enforcement testimony near the end of the hearing hardly rises to that standard), the presumption must be for openness.

Besides, "what do they have to hide"...?

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