Had a sit-down with the Chief of Lansdale Police

[Brillfan]

if it's a weekend count me in as well - whether I'll come carrying depends entirely on how quickly Lehigh gets my LTCF application through the system

You won't need it if you OC.

[P7hk9]

You won't need it if you OC.

He will unless he plans to walk.

I'm up for an OC meet & eat in Lansdale. It'll give me an excuse to stop dieting!

[Emptymag]

I read the OP. (and the next few posts)
I'm not reading the rest. I've read this thread a hundred times over the last few years.

Police:
"Just do what we ask, and everything will be OK"

PAFOA's Newest OC Convert:
"I wasn't arrested/He was polite/I wasn't really sure what the law says about it/I think it went well"


Rinse. Repeat.




Good luck with all of this, I guess.

[Brillfan]

He will unless he plans to walk.

I'm up for an OC meet & eat in Lansdale. It'll give me an excuse to stop dieting!

I don't want to go OT too far, but isn't there a way he can legally transport his weapon without a LTCF?

[ViperGTS19801]

I read the OP. (and the next few posts)
I'm not reading the rest. I've read this thread a hundred times over the last few years.

Police:
"Just do what we ask, and everything will be OK"

PAFOA's Newest OC Convert:
"I wasn't arrested/He was polite/I wasn't really sure what the law says about it/I think it went well"

Rinse. Repeat.

Good luck with all of this, I guess.

Your interpretation is incorrect, my friend.

By no means do I think "it went well." In fact, I am very offended that the chief of police proceeded to tell me that the law doesn't matter to them and that they'll enforce their opinions as they see fit. The problem is, there's just about nothing else I can do when talking to him or anyone else within this department, since they will not listen to a citizen who, in their eyes, knows nothing about the law. They just tune us out, because, after all, they're the cops, so they know everything!

I will be doing a bit of phone-time to find a restaurant here that will host us for a meet-and-greet, and I will be scheduling it for mid-April. More details to be posted soon, and yes, I will be OCing there.

[P7hk9]

I don't want to go OT too far, but isn't there a way he can legally transport his weapon without a LTCF?

http://reference.pafoa.org/statutes/...out-a-license/

I don't think so. Not unless he has a valid out-of-state license. I didn't see PAFOA meet & eat on the exception list.

[LittleRedToyota]

here is the ammo you need to revisit the chief of police and set him straight...

He asked me if I was carrying at the time (looks like he read the report that the officers made yesterday, lol) and he had me secure my weapon in a locker.

unless the police station is in a court or detention facility, they can't actually make you disarm to go into the station. i'd probably not press that one, though, as it is impossible to cite the non-existence of that authority...only to challenge them to cite where they get that authority. they won't be able to do that, but you have other issues which are provable slam dunks for you, so i would focus on those.

After securing it, he and I went back to Chief McDyre's office. The entire encounter was nothing but friendly and professional, and I felt as though they bore no ill-will towards me given what had happened the day prior.

that's good to hear. however, he is still very misinformed and, apparently, still planning on violating the law and people's rights...even if unknowingly. he should be set straight...politely.

The chief told me that the officer who stopped me was upset over the fact that I was trying to record him while it's an illegal act. Based on the information I gathered here, I informed him that I was under the impression that it's not illegal, and cited the "expectation of interception" clause. The chief asked to see the case law that specifically states that.

Now that I am back in front of my computer, I am a bit concerned, as I am unable to find in Title 18 SS5103 anything that specifically mentions the legality or illegality of a citizen recording the oral communications of himself and an officer in public. Will someone please point out to me where this clause is? I'd greatly appreciate it. Perhaps it is not expressly stated, but can only be ruled as such through legal interperetation - I don't know, since IANAL.

Anyway, the Chief said that since we're in a two-party consent state, if one party states they do not wish to be recorded, then you must stop recording.

first, the actual statutes with relevant parts bolded:

http://law.onecle.com/pennsylvania/c...7.003.000.html

§ 5703. Interception, disclosure or use of wire, electronic or oral communications.

Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:

(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;

(2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or

(3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.

if someone did not bother to look up the statute's definition of "oral communication", they would probably make the mistake the chief has made. but, one cannot actually ignore the statute's definition of "oral communication" as the prohibition is only applicable to if that specific definition applies. that definition is:

http://law.onecle.com/pennsylvania/c...7.002.000.html

[b]§ 5702. Definitions. As used in this chapter, the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otherwise:

...

"Oral communication." Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. The term does not include any electronic communication.

inserting this definition into the statute, it is clear that words uttered by someone who knows they are being recorded are not "oral communications" that are protected by the statute...as that person cannot possibly have a reasonable expectation of non-interception given that they know their utterances are being intercepted.

(note that, although the common term is that PA is a "two party consent" state, the law does not actually require consent...only that the person does not have a reasonable expectation of non-interception.)

relevant case law comes from:

Commonwealth v. McIvor, 670 A.2d 697 (Pa. Super. Ct. 1996), petition for appeal denied, 692 A.2d 564 (Pa. 1997).

Generally, where there is an expectation of privacy there is also an expectation of non-interception. Such is not always the case, however. For instance,. . . if one is speaking with the town gossip at a public swimming pool under circumstances insuring that the gossip is not wearing a body wire, one's expectation of non-interception is very high, but the expectation of privacy is very low. Thus, an expectation of privacy does not always carry a concomitant expectation of non-interception, and vice versa. For purposes of violation of the Wiretap Act, while we consider the expectation of privacy as a factor, it cannot be the determining factor in our analysis.

notice there is nothing about consent...only expectation of non-interception.

some other relevant cases are commonwealth v. bender, commonwelath v. henlen, etc.

see here as well:

http://www.aclupa.org/pressroom/aclu...ehalfofpit.htm

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

provide this information to the chief and politely suggest he share the info with the lansdale solicitor and get his opinion before one of his officers actually arrests someone for audio recording him and costs lansdale some money and puts a black mark on his police force.

it's not like there is even any real question about the issue. in PA, if the other person knows they are being recorded, the recording is legal. period. end of story.

After we discussed the issue at length, I essentially came to the conclusion that, if I ever feel as though I need to record an interaction with the police, I need to keep the recorder concealed and not make the officer aware that he is being recorded.

do NOT do that. in that case, the officer may have a reasonable expectation of non-interception and, thus, you may actually be committing a felony. i know others say you can secretly record police because they have no expectation of privacy (as opposed to an expectation of non-interception), but i'm not so sure that is so cut-and-dry (since in some cases, at least, like McIvor, the courts differentiate between the two concepts).

The Chief and the Sergeant explained to me that when a citizen calls to complain about activity that they are concerned may lead to or indicates illegal or suspicious behavior, they have an obligation to investigate that report.

investigating is fine. detaining without RAS, though, is not. see below.

Chief: "We're waiting for an opinion from the DA on this as to what raises it to the level of reasonable suspicion, it's going to become a huge issue. Do you have a concealed weapons permit?"

the PA supreme court ruled in commonwealth v. hawkins that an anonymous man with a gun (MWAG) call plus seeing someone fitting that description does not constitute RAS even if the person does need an LTCF to be legally carrying in the situation. thus, a MWAG call plus them showing up and finding someone peacefully open carrying on foot outside of philly would also clearly not, in and of itself, be RAS. (there may, however, be some other factor in the "totality of the circumstances"--which the OCer may not know about--that would give rise to RAS.)

from: http://reference.pafoa.org/caselaw/P...lth-v-hawkins/

The Commonwealth takes the radical position that police have a duty to stop and frisk when they receive information from any source that a suspect has a gun. Since it is not illegal to carry a licensed gun in Pennsylvania [footnote] it is difficult to see where this shocking idea originates, notwithstanding the Commonwealth's fanciful and histrionic references to maniacs who may spray schoolyards with gunfire and assassins of public figures who may otherwise go undetected. Even if the Constitution of Pennsylvania would permit such invasive police activity as the Commonwealth proposes -- which it does not -- such activity seems more likely to endanger than to protect the public. Unnecessary police intervention, by definition, produces the possibility of conflict where none need exist.

Contrary to the Commonwealth's view, the public will receive its full measure of protection by police who act within the restraints imposed on them by Art. I, § 8 of the Constitution of Pennsylvania and this court's relevant caselaw. Upon receiving unverified information that a certain person is engaged in illegal activity, the police may always observe the suspect and conduct their own investigation. If police surveillance produces a reasonable suspicion of criminal conduct, the suspect may, of course, be briefly stopped and questioned (the Terry investigative stop), and, if the officer has reasonable fear for his safety, police may pat down the suspect's outer garments for weapons.

[footnote]In all parts of Pennsylvania, persons who are licensed may carry concealed firearms. 18 Pa.C.S. § 6108. Except in Philadelphia, firearms may be carried openly without a license. See Ortiz v. Commonwealth, ___ Pa. ___, ___, 681 A.2d 152, 155 (1996) (only in Philadelphia must a person obtain a license for carrying a firearm whether it is unconcealed or concealed; in other parts of the Commonwealth, unconcealed firearms do not require a license).

the MPOETC training guide excerpt others have posted also addresses this issue quite nicely. i won't bother reposting that.

In addition, the Sergeant told me that if someone makes a panicked phone call to the police saying they saw an angry-looking man with a gun and they also saw him thumbing the weapon and looking like he was going to shoot someone, that they would not only want to question the MWAG, but they would also be guaranteed to detain him until they felt comfortable that he was not a threat because it's a "raised level of concern", even if the call from that citizen was inaccurate.

as long as they had a reason to suspect the tip was accurate (if it was anonymous, they do not according to commonwealth v. hawkins), that would probably fly.

hope this helps. please do go back to the chief and explain this stuff to him. give him printed copies of the relevant parts (you can print this post and show it to him if you like) and then suggest he pass it on to lansdale solicitor and get his opinion...before any of his officers make a mistake and end up costing lansdale money.

[tntblaster]

Why is it that cops can have on dash cams that record audio/video, and a private citizen cannot simply record audio? It's a public space.

[Brillfan]

http://reference.pafoa.org/statutes/...out-a-license/

I didn't see PAFOA meet & eat on the exception list.

Sorry I asked.

[LittleRedToyota]

Why is it that cops can have on dash cams that record audio/video, and a private citizen cannot simply record audio? It's a public space.

the laws for recording audio are much more restrictive than the laws for recording video. if the dash cam only video tapes, and does not record audio, there is no problem at all.

if the dash cam also records audio, there is a specific exception in the statute for that, but the officer/trooper is supposed to inform you that you are being audio recorded at the earliest safe time (like immediately for a typical traffic stop).