Right to record: It's yours, people
Right to know lives: Good news for NH public
New Hampshire Judge Drops Wiretapping Charge Against Man Who Recorded Cop
Oh, and Weare PD are live 24/7.
Needless to say, I've been waiting to publish this post for quite some time. So finally, here's what happened. This is what would have come out at the trial that Weare PD inexplicably insisted on pursuing. At taxpayer expense. Even following the 1st Circuit Court's 'Glik' ruling. My arraignment can be seen here. Hearing on defense motions, which (eventually) precipitated this bench ruling, here.
On the date in question, Saturday, July 10th, 2010, several dozen individuals gathered for a rally at Palmer's (now Boondocks) Tavern in Weare, NH, to support a friendly small business that was -- along with its customers -- the ongoing target of Weare PD harassment and intimidation, and to object to general department thuggishness (further details regarding which can be found here). (Goes to state of mind, your honor.) There were multiple and ongoing reports that the department was singling out patrons simply for leaving the parking lot. That they were constantly prowling back and forth in front of the business on Rt 114. That they would park themselves in lots north and south of the Tavern, and stop anyone seen leaving the lot, often on the pretext that the driver had "touched the white line" (AKA the "fog line", on the shoulder of the road). Some detainees reported they'd been told to "stay away from the Tavern" in the future. One activist had already reported being physically threatened by Weare PD while under arrest at the station -- and related "official" recordings had gone mysteriously and conveniently missing. Even the Board of Selectmen had told them to knock it off, reportedly. A Select Board, it must be noted, that may well come to regret its "hands off" approach to dealing with its unaccountable "attack dogs."
I do not trust them. I fear them. Certainly, I suspect that a feeling of foreboding, of trepidation -- not of comfort or security -- is a virtually universal response to any cruiser pulling in behind a traveler on the public road, but for anyone paying attention, Weare has become special. And as Jefferson said, "when the people fear the government, there is tyranny." This was the state of things in Weare in July of 2010. As events unfolded this particular night, for my own self-preservation, I felt a strong rational need to "produce proofs that may be beneficial," and to hold "officers of government ... at all times accountable," as are my explicit Constitutional rights.
Approaching midnight, there were, to my knowledge, only 2 of our party left at the Tavern. There had been reports of several traffic stops related to merely leaving the gathering already. Given the foregoing, we concluded that it was in the interest of our own safety and peace of mind to leave together, to try to slip out of the battle zone using the buddy system. We would head north, and part ways at the intersection of 149 and 77.
As fate would have it, Keith (he can out himself in the comments, if he chooses) pulled onto Rt 114 first. I followed. As I pulled out, I observed headlights coming around the bend heading south toward us. I immediately thought, "aw, shit" -- just as, I have every confidence, the officer thought, "got one!" As the vehicle passed by me, I verified that it was, indeed, a prowl car. In the rearview mirror, I then observed it, now probably still less than 100 yards behind me, make a u-turn in Palmer's driveway -- a u-turn that I suspect the officer would have pulled me over for, had I made it.
I was resigned right then that the die was cast. There was nothing I could have done from that point on to avoid being pulled over. I had been seen leaving Palmer's Tavern (an observation that Keith had mercifully just barely avoided), and the officer had his orders. I was now nothing more than prey. All I could do was not provide a conveniently legitimate reason for the inevitable stop. He quickly pulled in behind me -- needfully exceeding the speed limit to do so -- and the hunt was on. I learned later from Keith that he was also well aware of the officer's presence at this point. Both of us, needless to say, were in heightened driving awareness mode, and certainly well aware of the department's favored "touched the white line" gambit.
The prowl car followed us up Rt 114. Then followed us on a left across Short St. Then followed us on another left south on Rt 77. Approximately 2 miles, in all, in point of fact, before finally turning on the lights some distance down. Once stopped, I called porc411 to alert as to my condition and location. Meanwhile, Keith turned around, and briefly stopped alongside me, asking if I'd like him to video record this forced and empirically unwarranted inconvenience. I responded that I thought that would be lovely. He told me later that he then pulled off the road, got out of his vehicle, and informed the officer that he'd be recording. He said the officer had acknowledged that, so before he'd even approached my vehicle, the officer had already been given an explicit reminder that he had absolutely no expectation of privacy.
Particularly knowing full well that I'd succeeded in providing no legitimate excuse to interrupt my evening, and thus rendering this an entirely extra-legal stop by an entirely extra-legal officer, when he returned to my vehicle, I chose to continue to exercise my NH Constitution Part 1st Article 15 right to produce my own evidence, and so called porc411 again. As I compose this, I still have a perfect recollection of the conversation, even now, a year and a half later, precisely because of that decision. Imagine that. One might expect the state would appreciate that, too, considering Weare PD's repeated inability to produce their own recorded evidence...
The officer -- at this point revealed to be one Brandon Montplaisir -- asked me if I could hang up my phone. I asked if I was required to by law. He said he was just asking so we could have a "conversation." I replied that that wasn't what I'd asked him. He responded that if I was recording, I needed his permission. I helpfully informed him that the RSA required an "expectation of privacy" first (see "Oral communication," 570-A:1, II), and that being in a public space, he had no such expectation, a glaring initial hurdle to invoke their cherished 'wiretapping' statute. He insisted he just wanted to have a private conversation, but he'd "let it be." That, for some reason, was also the end of our "conversation." Now, what it was that he'd wanted to say that he nevertheless didn't want the taxpayers -- his employers -- to hear, well, you'd have to ask him about that -- indeed, I'd encourage it, since I'd really like to know, my own self. But I was and am absolutely confident it had something to do with... staying away from the Tavern.
True to reported form, the officer informed me that all he was claiming in order to justify inconveniencing me this evening was that I had "touched the white line" while he'd stalked me. Touched it twice, in fact. Twice in 2 miles. And around 2 corners, to be precise. An assertion, needless to say, that didn't surprise me, but that I strongly contest, then and now. Which also leaves curiously open the question of what prompted that questionable u-turn to begin with. What was it that attracted his obsessive attention in the first place? Brandon? Any comment...?
Having not done even what he weakly claimed, the officer was on nothing but a "fishing expedition" from the very start, prompted exclusively by my observed place of origin, and he could not legally justify detaining me. He was acting unlawfully. I knew it. He knew it. Indeed, his objective had been to violate my rights. And particularly given their recent history, I felt in fear of my welfare and my liberty. Per Article 8 and RSA 91-A, public servants are "at all times accountable," records of their proceedings accessible (and again, Weare PD's own records somehow keep going missing). Additionally, there's no expectation of privacy, as required by RSA 570-A, on a public road, regardless. And the "proof" that I produced became (officially, prosecution) evidence "that (nevertheless) may be beneficial," as guaranteed by Article 15.
When all was said and done, Weare PD had to admit -- even at the scene -- that I was successful: after following me for 2 miles, taking 2 turns to do it, and detaining me for a quarter-hour, I had provided them no legitimate reason -- no reasonable suspicion -- to detain me that night. None. No truthful reason at all, in fact, other than my observed place of origin: a tavern regarding which the Goffstown District Court has heard testimony that Weare PD had threatened to shut down over the owner's refusal to perjure himself in support of the department's preferred narrative. If it weren't a government agency, surely the Justice Department would be looking into RICO charges, wouldn't ya think...?
And, just perhaps, the only reason I wasn't warned to "stay away from the Tavern" before finally being turned loose was because I was "producing proofs" per Article 15, and holding officers accountable per Article 8 and RSA 91-A.
And for all my trouble, Weare PD wished to threaten my Article 18 ('Penalties to be Proportioned') and Article 33 ('Excessive Punishments Prohibited') rights by, at minimum, harassing me through the expensive (both to me and to the rest of Weare's taxpayers, but not, it should be noted, to Weare PD -- at least not yet...) court system, and potentially abrogating, among other things, my ostensibly unalienable 2nd Amendment right to self-defense via a willfully invalid felony charge, by making the argument, apparently, that EVEN I wasn't aware I was recording. For protecting my rights against my aggressive government by exhibiting the temerity to insist on holding it accountable for its actions. Actions it would prefer that you, its employers, don't learn about, by claiming that you have no RIGHT to learn about them. Back in line, citizen. Or else. These here are SECRET police.
Anyway, what followed was an arraignment, where immediately upon the bang of the gavel, Weare's persec- er..., I mean prosecutor conceded felony charges were laughable. Two trial dates came and went, the second postponed for rescheduling by the court following a hearing on defense motions (to suppress, and for acquittal). Three months of ostensibly learned yet interminable judicial ruminating, while other courts like the directly relevant 1st Circuit made it clear that recording public servants is a protected 1st Amendment right, and already established law.
Finally, we come to this. Motion granted. Weare PD, you lose. Again. Do ya feel the heat yet? Oh, you will. You will...
As Judge Tenney so succinctly put it:
What would you have done, citizen? What would you have wanted to do? What would you rationally expect you have a RIGHT to do in an ostensibly free society, in a non-police state, under a SERVANT government? What, indeed, supports the profound arrogance that imbues these public servants with the ludicrous presumption that they're ACCOUNTABLE to that public only on THEIR terms? What activities that even THEY consider questionable, evidently (or else why waste so much of your money covering it up?), is Weare PD trying to be able to continue to hide from its employers? To continue to obligate its employers to unknowingly fund?
Secondly, RSA 570-A:2 I, does not criminalize activities described in the undisputed facts above because public officials, carrying out official duties in public places, have no reasonable expectation of privacy. Therefore, words they utter do not constitute "oral communication" as defined in RSA 570-A:1 II. ...
'Glik' leaves no doubt that engaging in an audio recording of a police officer in the course of his official duties in a public place is protected speech under the First Amendment. ...
The fact that Officer Montplaisir may have been unwilling or unhappy being recorded does not make a lawful exercise of the defendant's First Amendment rights a crime.
The police work for the People. It's time they remembered that. Police, you're all "officers of government ... at all times accountable" TO that public. If you want to be a private citizen, you gotta take off the badge, and relinquish the special privileges that have been granted with it BY THE PEOPLE (yet even then accept the fact that public spaces afford no expectation of privacy, regardless).
And if you didn't enjoy the privilege of hunting me down on a vendetta and detaining me on the side of the road against my will on that summer night, then the issue of recording you never would have come up in the first place, now would it? Face it: you brought this all on yourself. Take some responsibility.
On the job means on the record. Deal with it or get off the job, employee. That's how accountable servant government works. If that's not how it's working, then it's simply not an accountable servant government. Right?
You good with all this, Mr. Citizen and Ms Taxpayer? Are you to be their next prey? What has just this particular farce already cost you (already)? Are you willing to continue to fund this sort of (increasingly typical) police department abuse, from both the standpoint of your civil liberties and fiscal accountability? Will I see you at Town Meeting next February? I believe there's a department budget -- for a department with way too much time on its hands -- that can use substantial trimming...