If only that were the extent... (There's a video down below somewhere. Trust me...)
OK, so let's review some of the more pertinent NH laws, principles and Constitutional provisions that we've previously discussed regarding the right to record your servants, on the job in your name, on your dime, in public.
- RSA 91-A, the "right to know" statute, is a fairly clear exception to the "wiretapping" statute, authorizing the recording of all "government proceedings" not specifically exempted. (Unless, of course, the cops don't really work for the government...)
- RSA 570-A, the "wiretapping" statute, requires an expectation of privacy before a charge of "wiretapping" -- whatever the definition -- is valid.
Radley Balko's been doing yeoman's work, as usual, reporting on this issue at theagitator.com and Reason.com. He and Carlos Miller were on NPR's "Talk of the Nation" for a half-hour segment in July, 2010, to discuss it. He reports that there are, IIRC, only 3 states that outright ban recording without consent. The others (including NH) that don't expressly authorize the recording of cops still stipulate a general "expectation of privacy."
But along with the court rulings, there's also the idea that as an adversarial encounter -- as one that by design and intent can quickly put your liberty unilaterally in jeopardy, on the whim of your servant who, it simply can't be ignored, will get the benefit of the doubt before the state's magistrate -- the cops themselves would have no problem whatsoever using the exchange -- and their video evidence -- in open court, so even they understand it's not a private, privileged conversation with any expectations of being such. If the citizen's side of it isn't protected, how can the servant's? And this still barely touches on the unique nature and necessary -- and existing -- safeguards of the citizen/servant relationship, which brings us to "the Big Guns."
NH Constitution Part First, Article 8, 'Accountability of Magistrates and Officers; Public’s Right to Know,' stipulates that
All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.So just as your "representatives" in the legislature can't escape your supervision -- or that of your camera-wielding proxy, like yours truly -- while they're crafting rules to control your life, so law enforcement must be required to be accountable to the public while it's imposing those rules. With guns. If'n ya don't wanna be accountable to your employers, get another job, buster.
But most recently, in a "D'oh! Why didn't that occur to me before?!" moment, NH attorney and fellow activist Paula Werme pointed me (again -- I really need to keep up better with my reading...) to perhaps the most relevant reference yet: Article 15, 'Right of Accused,' which states in part,
"Every subject shall have a right to produce all proofs that may be favorable to himself"Now, ya can't very well "produce" proof in court if you've been capriciously and prejudicially prohibited from "producing" it on the street, now can ya? Can you say "mistrial?" Can you say "civil rights violation?"
So really, whoever is unfortunate enough to have attracted the predatory attentions of the state's enforcement arm has the Constitutional right to authorize the recording, for their defense, of video evidence of the encounter -- "proofs that may be favorable to himself" -- and to demand it at trial. And it's so important that it's even ensconced in "NH's Top 15," no less.
This seems to me, too, to be related to the issue of willful "destruction of evidence" that manifests with the return of a camera minus the potentially nettlesome interaction footage. Seems in that context, the cops would be compelled to produce the camera at trial, too. Oh, that's right: it never gets to trial, does it...? Even the press is getting tired of this.
Anyway, following are attorney Seth Hipple and client Carla Gericke as guests on a tv show your humble chronicler works on, Capitol Access, out of Concord, NH, recorded on 10/28/2010. Carla was caught up in what a dispassionate observer would be hard-pressed to describe as anything but thuggery at a traffic stop in Weare back in March. You'll notice in the show that relying on law enforcement's video for "proofs that may be favorable" isn't exactly what one could characterize as a reliable strategy to achieve justice. No, it's not just an urban legend.
Your humble chronicler, too, found himself in a substantially similar "recording" situation with Weare PD just a few months later, only markedly and mercifully minus the thuggery -- despite being the orchestrated effect of other intentional and premeditated thuggery -- so even they seemed to be already well aware they grossly overstepped. My own stop was connected to yet another bit of controversy in which the same department finds itself (still) mired, related to its contemptible dealings with a small and mighty friendly business in town, Palmer's Tavern (tell co-owner George and barkeep Donna I sent ya -- I recommend a seasonal draft and a BBQ chicken pizza or a Burger Special). And regarding which controversy, rumor has it the Board of Selectmen had to step in and issue a "cease and desist," or maybe closer to a "restraining order" on the cops, so perhaps the broader message still needs to sink in. Needless to say, we still have some work to do...
UPDATE: More Radley Balko here, from the January 2011 'Reason' magazine.