In what is probably the most anger-inspiring display of stupidity I have seen in quite a while, a young man being bullied in the classroom wasn't getting support from the school. He'd had enough, and recorded the bullying on an iPad.
Presented with evidence that he was being physically threatened and emotionally attacked (in the classroom, in front of a teacher), the school did the only reasonable thing: they called the police, accusing the boy of violating wiretapping laws.
Let me repeat that: the school called the police . . . on the boy who was being bullied. They also forced him to erase the recording. (Luckily, his mom transcribed it first.)
So the story should have ended there: the police show up, laugh, and leave. Instead, the boy was arrested, charged, and convicted, not under the wiretapping laws, but for disorderly conduct, based on (presumably) having violated the wiretapping laws.
It was so stupid, legal commentators hesitated to believe the news media reports were accurate, until they read the source materials for themselves:
"Well, now I’ve read the police citation issued to the student, the police incident report and the transcript of the trial, and my hesitation is gone: The criminal conviction seems every bit as unfounded as the news report suggests."
Here's a breakdown from Eugene Volokh of the Volokh Conspiracy (full article linked):
"So according to the government here, essentially committing any other crime is also “disorderly conduct” — even if you don’t charge the person with the underlying crime — because “it is offensive to commit some form of a crime” and because committing a crime makes the underlying conduct lack a “legitimate purpose.” The judge (District Justice Maureen McGraw-Desmet) didn’t render a detailed opinion, but she did find the defendant guilty, so she must have accepted some such theory, since otherwise the elements of disorderly conduct would be absent.
"But that can’t be right. First, the disorderly conduct statute requires that the conduct be “physically offensive.” Even if committing a crime is “offensive” in some general sense, that doesn’t make the conduct in this case “physically offensive” for the purposes of the “disorderly conduct” statute.
"Second, the disorderly conduct statute requires lack of a legitimate purpose. Even if the recording was illegal, that wouldn’t mean that the act of recording lacked a legitimate purpose — only that it was carried out through illegal means.
"Third, and most important, as I discussed in detail in my earlier post, there likely was no underlying crime of illegal recording. Under Pennsylvania law, recording conversations is illegal only if the speakers have a reasonable expectation of privacy, and it’s hard to see how students talking in a classroom where everyone can hear them have a reasonable expectation of privacy. Here’s Lt. Kurta’s only response to the defense lawyer’s argument on this:
Q. Are you aware that for a recording to be a violation of the wiretap law that the individual that is recorded has to have a reasonable expectation of privacy in what they’re saying?
Q. And so you believe then that students in a classroom that are bullying my client had a reasonable expectation of privacy that that conversation would not be recorded? …
[A.] I believe that in Pennsylvania two-party consent is required, unless prior approval from the district attorney or attorney general is obtained. I don’t think that you are permitted to commit a crime to generate evidence of a crime that you’re alleging.
"So Lt. Kurta had no explanation of how the students could have had a reasonable expectation of privacy here — although he first agreed that such a reasonable expectation is required, he then just took the view that two-party consent is required, period. Again, the judge said nothing to explain her verdict, but presumably she must have taken the same view as well, since a finding of illegal recording has to be necessary to explain how the conduct might have been “physically offensive” and lacking in a “legitimate purpose.”"
Amazing. Shame on that teacher, that administrator, that police officer, and that judge.
Postscript: Apparently the charges are being "dropped." Not sure that's how it works after a conviction, but good news, too late. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/16/charges-will-be-dropped-in-disorderly-conduct-recording-of-bullies-case/
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