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Taking video is legal, audio is illegal

I have heard that some states are considering laws that would make it illegal to film police making arrests or otherwise doing their duty. Assuming the person doing the filming is not interfering with an officer doing his duty, what is the opinion of the local law enforcement community on being filmed on the job. Are there any Oregon laws that restrict or allow such filming?

— Mark E., Medford

This is a hot topic in many states now, and some are going through the courts or legislative processes to answer this type of question. For purposes of this article, I'm assuming that when you're asking about "filming" police that it includes the audio portion as well as the video component.

Oregon has ORS 165.540, which is titled Obtaining Contents of Communications. It says, under part (c), a person may not: Obtain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained. This is directed to the audio portion of filming police or any private party.

There are no exemptions that allow for the audio taping of police, although there are many other exemptions listed. If it is strictly videotaping with no audio, then there is no issue, it's not illegal.

In the legal arena, just this month, on May 8, in Chicago, a federal appeals court blocked enforcement in cases where someone is recording a police officer at work. The Illinois law, enacted in 1961, made it a felony for someone to produce an audio recording of a conversation unless all parties agree. It set a maximum punishment of 15 years in prison if a law enforcement officer was recorded.

As you can see, Oregon's law states that all participants in the conversation have to be specifically informed that their conversation is being obtained. So it is similar to the language that Illinois used in its law.

In other recent cases, the District Court for the Eastern District of Pennsylvania held that there was a free speech right to film police officers in the performance of their duties.

In 2010, the Third Circuit Court found there was a broad right to videotape the police.

Our own district attorney's office had a case where it prosecuted someone for filming (and audio recording in the process) officers who had come to break up a party. In that instance, the person surreptitiously recorded what the officer was saying, and he was arrested and prosecuted for Obtaining the Contents of Communications.

Now, regarding your question on the opinion of local law enforcement about being filmed on the job, here's one person's (my) view. Other than making almost anyone a little self conscious, as long as the person doing the filming stays at a reasonable distance and doesn't interfere with the officers' duties or create a safety concern for the officer, person detained or another onlooker, then they can have at it.

However, if based on the totality of the circumstances, they refused to stay at a reasonable distance or through their actions created a safety concern, especially when given a lawful order, then I'd arrest them. It wouldn't be for illegally audio/video taping but would be another statute, which would be ORS 162.247, Interfering With a Peace Officer or Parole and Probation Officer. It says, "A person commits the crime of interfering with a peace officer or parole and probation officer if the person, knowing that another person is a peace officer or a parole and probation officer as defined in ORS 181.610:

"(a) Intentionally acts in a manner that prevents, or attempts to prevent, a peace officer or parole and probation officer from performing the lawful duties of the officer with regards to another person; or

"(b) Refuses to obey a lawful order by the peace officer or parole and probation officer."

My personal take on it is this: If a person is videotaping me legally, and I'm acting professionally, then I'm not worried about the person making the video. I do believe that it does in some measure make the police more accountable, and I'm all for having us as above board as possible.

I also asked for the view of our administration on this issue. They answered that with today's lack of trust in government, and with police being the face of government in the public safety area, that they expect deputies to be transparent and professional at all times while performing our duties, even if being videotaped. This administration respects all of our citizen's constitutional rights.

Dace Cochran is a patrol sergeant with the Jackson County Sheriff's Department. Have a question? Write to Mail Tribune Newsroom, P.O. Box 1108, Medford, OR 97501, or email cochradc@jacksoncounty.org.