Bogus Wiretap Charges Brought Against Man Who Recorded Cops Costs NH Taxpayers $275,000

One of those things I thought would have gone out of vogue is apparently still in style in New Hampshire. The number of bullshit wiretap prosecutions brought against people recording cops has dropped precipitously over the past half-decade as courts have found use of wiretap statutes in this fashion unconstitutional, but over in the Live Free or Die state, the statute lives freely and dies even harder.

Back in 2015, prosecutors brought wiretapping charges against Alfredo Valentin. Valentin had returned home one day to find a SWAT team in the middle of a no-knock raid. Apparently, Valentin's roommate was also a heroin dealer. Valentin had been called home by a neighbor who noticed his dog wandering the street, apparently set free (and still alive!) by the SWAT team's home-breaching efforts. Valentin chose to record the officers as they proceeded with the raid despite officers telling him (wrongly) that he couldn't.

This became a wiretapping charge because the cops couldn't handle a citizen ignoring a direct order. They claimed Valentin "hid" the phone by placing it down by his leg while he kept recording. Apparently, the officers could still see the phone, so claims of it being a "secret" recording were per se moronic. But this was what the flimsy, highly-questionable charges rested on: a supposedly surreptitious recording officers in attendance knew was happening.

The charges were tossed and Valentin sued. Now, with the ACLU's help, Valentin has obtained a settlement (but not an admission of wrongdoing) from the government.

The settlement, which was reached in late September, was announced Wednesday by the ACLU-New Hampshire.

Lehmann said Valentin received about two-thirds of the settlement, and he will use it to get his life back together. He was arrested in March 2015. The previous year, Free State activists from New Hampshire prevailed when the U.S. First Circuit Court of Appeals ruled that any person has a First Amendment right to video or audio-record police officers engaged in official duties in public places.

Gilles Bissonnette, the ACLU-NH's legal director and co-counsel, said the settlement recognizes that recordings of police are a critical check on police power.

"The police need to understand that individuals who are recording their work without interference have a constitutional right to do so, and it is not cause for their arrest," Bissonnette said.

The First Amendment right exists with or without a police officer giving consent to the recording, the ACLU said.

The $275,000 settlement will hopefully help Valentin piece back together a life law enforcement officers vindictively destroyed. Following his arrest, Valentin lost his job of eleven years and has spent the past two years trying -- and failing -- to restart his career. Having a felony arrest on his record doesn't help, even if charges were ultimately dropped.

New Hampshire's wiretapping statute still stands. The state requires two-party consent for recordings. But, as has been pointed out by courts previously, the state's statute does not apply to recording public servants like police officers performing their duties in public. The state's Attorney General made this explicitly clear in the wake of the First Circuit Appeals Court's Glik decision. A memo [PDF] clarifying the right to record police was sent to law enforcement agencies in 2012, so the officers here -- and the prosecutor who chose to continue pressing charges -- had no excuse for their actions. In the process, they cost an innocent person his job and derailed his life for the better part of two years. And in the end, they'll have the bill covered by New Hampshire taxpayers and a signed agreement saying they did nothing wrong.