Do police officers have a reasonable expectation of privacy while performing their duties in public? | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    Does a policeman have a reasonable expectation of privacy when performing duties in a public arena? That question is at the heart of a recent case in which two different police officers reportedly pulled Alan Jordan, the sheriff of Beaufort County. While there is a separate issue of whether the public has a right to know the details, including viewing the video of the stops of Jordan, there is an issue related to whether the officer has a reasonable expectation of privacy which would be sufficient to ban his being photographed/videoed while making a stop.

    Washington City officials contend that the videos its cars make of stops are confidential and refuse to release them to the public. We'll reserve further comment on the local issue because it is still pending.

    But it is instructive to note what has happened in other communities when these types of issues have come up. One such incident was at a recent political meeting that, while open to the public, had the politicians who were afraid of being embarrassed banning citizens from recording the town hall meeting. We understand no one was arrested so there will not likely be a court decision in that instance, but there have been numerous court cases across the country dealing with videos of police officers performing their duties.

    Click here to read an article dealing with several examples of these cases. As you will note, most of the cases go against officials who are trying to prevent photographing police officers doing their duty.

    There are several links on the page at the link above and reviewing them gives you a better understanding of what happened and what the subsequent legal issues are. We warn you that if you click on the link to the video of the arrest of Melvin Jones by officer Jeffrey Asher here, you will be exposed to some very foul language.

    But what is particularly interesting about the Asher case is that there is a law in Massachusetts (where the incident happened) that makes it a crime to secretly record someone. But as you read in these articles, the local district attorney has refused to prosecute Tyrisha Greene, a bystander who videoed the arrest/beating of Jones.

    Notwithstanding the law outlawing secret taping, the D.A. ruled last week (8-18-11) that "a reasonable expectation of privacy must exist before the law applies."

    When you stop and think about it, you realize that if a police officer had a reasonable expectation of privacy when performing his duty, or even simply being in public, then there are dozens of violators in most communities. That is, when an officer goes to a teller machine he is videoed. When he goes in Dunken Doughnuts he is videoed by security cameras. And the list goes on. Obviously, it is unreasonable and impractical to assume that a police officer, in public, cannot be videoed. Moreover, laws that would prevent "secret" recording would be violated by the police themselves in Washington because they record all stops.

    And we will also point out that in these articles above (and some links therein) it turns out that the officer (Asher) who was trying to prosecute the videographer (Greene) who filmed him allegedly beating Jones (the trial is in December) apparently had a record of arrestees who had "resisted" arrest and were battered.

    If you read the comments in some of the articles linked above you read several by people who contend that Asher was within his rights to beat Jones "because he ran." On that point we would point out that in North Carolina law enforcement officers do have the right to use reasonable force to remove the threat of imminent danger. But the case law is very clear that no more force than is necessary to remove the imminent danger is all that the law allows to be used legally.

    More later.