Recording the Police in Oregon ? Legal or Not? |

As more and more people are carrying cell phones, and more of those phones have cameras with video recording capabilities, there have been more and more recordings made of people in socially compromising positions popping up all over the internet. The way that this technology may be used and how it relates to law enforcement is still being worked out in the legal system. One only has to think back to the late Rodney King (and the riots that ensued after the case) to see how videotaping police as they conduct their official duties can have serious ramifications.

Several cases in recent years have dealt with these issues, and if one thing is clear, it is the fact that the police do not want to be recorded and are using Oregon?s anti-eavesdropping statutes to seize people?s cell phones. In a case from 2008, Hao Xeng Vang saw a friend being detained by police when leaving a Beaverton bowling alley, and began recording the incident. After about 10 minutes, police arrested Vang and confiscated his cell phone. His cell phone was not returned until almost two months later, and the recording of the incident had been deleted.? Ultimately, city prosecutors did not pursue charges against Vang because, according to prosecutors, the poor quality of the audio in the recording may have not constituted a legal violation.

In another case, Joshua Scholssberg was engaged in a campaign to lobby the owner of Roseburg Forest Products ? also chairman of the board of Umpqua Bank -? to stop allegedly damaging environmental practices. In 2009, Scholssberg and another volunteer set up a table in front of the bank in order to hand out leaflets. The Eugene Police Department responded to a complaint about the leafleting, which resulted in an encounter between Schlossberg and Eugene Police Sergeant Bill Solesbee. According to an opinion filed on a motion for summary judgment in the case:

?As Solesbee approached him, plaintiff took out his digital camera and told Solesbee twice that he was recording their conversation. Plaintiff turned the camera on record and held it between his chest and navel. Solesbee recalls hearing plaintiff tell him something as he exited the Bank. Solesbee thought plaintiff might have asked whether he could record Solesbee. During Solesbee?s deposition he testified that he ?didn?t really pay attention? to what plaintiff was saying as he approached and heard plaintiff say, ?`can I? or `I?m going to? or something about recording me.? (#58 at 20 (p.79:8-13)). . .

The interaction ended when Solesbee saw plaintiff?s camera near his waist and asked if plaintiff was taping him. When plaintiff said he was-and that he had told Solesbee that twice, Solesbee replied that plaintiff had only asked if he could tape the interaction. Then, Solesbee grabbed plaintiff?s camera, twisted his arm behind his back and took him to the ground. Solesbee pushed plaintiff?s head into the sidewalk and placed his knee on plaintiff?s neck. Solesbee did not tell plaintiff he was under arrest until after he took him to the ground.?

A link to the full opinion can be found here.

The court ultimately concluded that the search and seizure of Scholssberg?s phone was in violation of the 4th Amendment, and left the issue as to whether his arrest was lawful (and any potential damages) to a jury.

The controlling statutes are confusing; ORS 165.540 prohibits a person from obtaining the whole or any part of a conversation by means of a device if not all participants in the conversation are specifically informed that their communication is being obtained. ORS 165.543 requires if you intercept a communication, there needs to be consent from at least one party to the communication. The functional difference is that, generally speaking, 165.540 will apply if the person recording is a party to the communication, while 165.543 will apply if a 3^rd party is intercepting a communication. For their party, the city?s attorneys have taken the position that most police-citizen encounters are recordable, and an individual holding a camera in plain view is specifically informing a person that the communication within the meaning of 165.543. A link to the internal memo to the police can be found here.

If you are accused of illegally recording police activity, or plan to engage in the type of political or protest activity that may result in a police encounter, call one of our experienced Portland Criminal Defense Attorneys today at (504)-352-9360. Edward Kroll is an experienced trial attorney. Thanks to his background as a former prosecutor, he understands the criminal law system and your options. Due to this experience, he is your best option when facing any level of criminal charge.

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