Wiretap Law Camera Seizure Will Cost Cop

(CN) - A Pennsylvania police officer is liable for seizing a video camera that a motorist was using to covertly record a traffic stop, but immunity shields the cop as to the subsequent arrest, a federal judge ruled.

Officer David Rogers of the Carlisle Borough Police Department arrested Brian Kelly in 2007 on charges that Kelly violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act in trying to record Rogers during a traffic stop.

Kelly subsequently claimed that Rogers had committed violations of the First and Fourth Amendments, but a federal judge initially found that Rogers had qualified immunity because his arrest relied on the advice of an assistant district attorney..

In 2010, the 3rd Circuit vacated summary judgment "insofar as it granted qualified immunity to Officer Rogers on Kelly's Fourth Amendment claims" and remanded the case for further hearings.

Kelly thereafter voluntarily dismissed all except Fourth Amendment claims, and both parties agreed that the ensuing trial would focus solely on whether immunity shielded Rogers.

The jury found that Rogers had reasonably believed Kelly tried to covertly videotape their interaction, that Rogers sought legal advice from the assistant district attorney about the existence of probable cause to arrest Kelly, and that the attorney told him probable cause did indeed exist. Though Rogers had failed to tell counsel that his police vehicle was also recording the stop, the jury also found that he did not omit that fact "deliberately or recklessly."

Reviewing the jury's findings, Chief U.S. District Judge Yvette Kane decided that Rogers was still entitled to qualified immunity regarding his arrest of Brian Kelly.

"The facts, both undisputed and those found by the jury, establish that defendant, a 'motor carrier traffic enforcement specialist' encountered plaintiff during a routine traffic stop," Kane wrote. "With only a limited familiarity with the Wiretap Act, gained from his training, defendant believed that plaintiff violated the act by recording the traffic stop. Defendant knew from training that he was obliged to inform motorists if he recorded a stop, so he believed the duty was reciprocal under the act."

Kane concluded that "the facts of this case show that defendant acted precisely as one would hope that a police officer would act when confronted with a violation of statue with which he could not reasonably be expected to be familiar."

"The court cannot find that any purpose would be served by holding defendant liable for his conduct in effectuating the arrest," the decision states.

Rogers cannot claim immunity, however, as to the seized camera, because he took custody of the equipment before calling the lawyer to legitimize that action.

"Because the Third Circuit has determined that, as a matter of law, the facts did not support a violation of the Wiretap Act the court cannot find that defendant Rogers had a reasonable basis to seize the camera, even though he contended that he had done so to ensure that plaintiff did not erase evidence of the purported crime," Kane wrote. "Accordingly, the court is constrained to enter judgment as a matter of law in favor of plaintiff."

Rogers was granted qualified immunity for holding the camera after calling the assistant DA.

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