ACLU Charges Arrest Is Part of A Pattern of Misapplying Wiretapping Statute To Punish People For Taping Police Activity
FOR IMMEDIATE RELEASE
August 13, 2009
PITTSBURGH - The American Civil Liberties Union of Pennsylvania filed a lawsuit today on behalf of a Pittsburgh man who was arrested by University of Pittsburgh police earlier this year for recording an interaction between police and one of his friends.
Elijah Matheny, a resident of the Hill District, was charged with violating the state wiretapping law, which forbids audio taping without the consent of all parties involved. According to the lawsuit, the Pennsylvania Supreme Court has ruled that the state's Wiretap Act does not apply to people who audiotape government officials in public settings, where they have no "expectation of privacy."
"The First Amendment guarantees people a right to record police officers' behavior in public places, and this right is vital to documenting and discouraging police misconduct," said Witold Walczak, ACLU-PA Legal Director and one of the lawyers representing Matheny.
On April 29, 2009, Matheny and his friend went to Oakland in search of items discarded by departing University of Pittsburgh students at the end of the semester. As the pair examined a dumpster outside Bouquet Gardens on Oakland Avenue, several University of Pittsburgh police approached and demanded identification. Matheny's friend gave her name but did not have any identification on her. When the police could find no record of her, they placed her in handcuffs until her identity could be verified.
In full view of police, Matheny took out his cell phone and began taping the incident. His cell phone records both audio and video. After Matheny's friend's identity was finally confirmed, police released her but arrested Matheny for violating Pennsylvania Wiretap Act. He was additionally charged with "possession of an instrument of crime" - his cell phone.
After being questioned about the arrest by another officer at the station, Pitt Police Officer Nicholas Mollo contacted the Allegheny County District Attorney's Office to confirm that Matheny could be charged with violation of the state wiretapping statute. Assistant District Attorney Chris Avetta, the DA staffing a special line to answer questions from law enforcement, agreed that Matheny had violated the statute and authorized the arrest.
In July, a judge dismissed all charges against Matheny.
"It is unacceptable for police officers and other public officials to silence and punish citizens who are peaceably documenting police officers' public duties," said Glen Downey, from the law firm Healey & Hornack, P.C., who is handling the case as an ACLU cooperating attorney.
"Unfortunately, many Pennsylvania law enforcement officers don't understand that the courts have said the state wiretapping law cannot be applied to punish people for recording police actions in public," continued Downey.
The lawsuit alleges University of Pittsburgh police violated Matheny's First and Fourth Amendment rights by retaliating against him for legitimately gathering information about police activities and confiscating his cell phone. It further charges that the district attorney's office has engaged in a pattern of erroneously advising law enforcement that audio taping police officers in public violates Pennsylvania's Wiretap Act.
Walczak noted the importance of this issue to the G20 Summit, which is coming to Pittsburgh in just over a month: "You can be sure demonstrators and bystanders alike will be using cell phones to record police activity at the G20, especially if there are any problems. Police have every right to arrest people if they destroy property or block passage, but police need to understand that they cannot arrest people simply for putting them on candid camera."
In addition to Walczak and Downey, Matheny is also represented by ACLU-PA staff attorney Sara Rose and Seth Kreimer, a professor at the University of Pennsylvania.
The case is Matheny v. County of Allegheny, et. al. More information about the case, including a copy of the complaint, can be found at: http://www.aclupa.org/matheny