PITTSBURGH - The American Civil Liberties Union of Pennsylvania has settled a lawsuit brought on behalf of Elijah Matheny, who was arrested and charged with a felony violation of Pennsylvania's Wiretap Act in 2009 for using his cell phone to record the detention and questioning of a friend by a police officer. Pursuant to the settlement, the former University of Pittsburgh police officer made no admission of liability, but agreed to settle Matheny's collective claims of damages and attorney's fees for an amount totaling $48,500. The Wiretap Act, which forbids audio recording without the consent of all parties involved, does not apply to people who audio record government officials in public settings, where they have no expectation of privacy.
"This settlement underscores the fact that one of the cornerstones of our constitutional democracy is the right to document the actions of our public officials," said Glen Downey, from the law firm Healey & Hornack, P.C., who is handling the case as an ACLU of Pennsylvania cooperating attorney.
"Allowing officers to criminally charge people for peaceably recording the officer's interaction with the public puts too much unfettered discretion in the hands of those very people who might well have reason to shield public eyes from their conduct," he continued.
In its August 2009 lawsuit, the ACLU alleged that the police officer violated Matheny's First and Fourth Amendment rights by retaliating against him for lawfully gathering information about police activities. The ACLU further charged that the district attorney's office had engaged in a pattern of erroneously advising law enforcement that audio taping police officers in public violates Pennsylvania's Wiretap Act.
"No one should spend a night in jail just for recording what public officials are doing," said Matheny.
Although Federal Magistrate Judge Cathy Bissoon dismissed the police officer from the case, ruling that it was unclear whether recording police officers in a public place is a crime under Pennsylvania law, an October 2010 Third Circuit decision in an unrelated case, Kelly v. Borough of Carlisle, reiterated that recording police officers in the public performance of their duties does not violate the law because the officers do not have a reasonable expectation of privacy. The ACLU expected the Third Circuit to reverse Judge Bissoon's decision based on the Kelly case.
"The right to record police is an important human-rights-protection tool, as the ongoing Twitter and YouTube postings from North Africa and the Middle East have shown, and it's an equally important police misconduct deterrent in the United States," said Witold Walczak, ACLU of Pennsylvania legal director.
Just last week the U.S. First Circuit Court of Appeals ruled in another ACLU lawsuit that people have a First Amendment right to record the police performing their duties in public. (See Glik v. Cunniffe, No. 10-1764.) In that case a man was arrested for videotaping the Boston police using questionable force during an arrest on Boston Common.
In September 2010, the ACLU dismissed Allegheny County and the District Attorney's Office in exchange for their agreement to issue a memo reiterating to district attorneys and local police chiefs that recording police officers performing their duties in public does not violate the Wiretap Act. Despite that clarification, Walczak noted that the Pittsburgh ACLU office continues to receive complaints about local police officers arresting people for recording police actions, which means more lawsuits are forthcoming.
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 law school.
The case is Matheny v. County of Allegheny, et. al.
- More information about the case, including a copy of the original complaint