Recording Michigan police in public: the eavesdropping act only reaches private places

Michigan's eavesdropping provisions are sections 539a through 539i of the Michigan Penal Code, added by 1966 PA 319 and effective March 10, 1967. The offence in MCL 750.539c is willfully using any device to eavesdrop on a private conversation without the consent of all parties, punishable as a felony by up to two years in a state prison or a fine of up to $2,000, or both. Two definitional limits in section 539a do the work. Eavesdropping is confined to the private discourse of others, and a private place is defined so that it does not include a place to which the public or substantial group of the public has access. Recording an officer performing a public duty on a public street satisfies neither element.

The Michigan appellate courts have added a second limit that is why Michigan is generally listed as a one party consent state. Since Sullivan v Gray, 117 Mich App 476 (1982), the Court of Appeals has read the phrase the private discourse of others in MCL 750.539a(2) as excluding a participant, so a person who is party to a conversation may record it without the other party's consent. The Michigan Supreme Court has never resolved the point, and the statutory text in MCL 750.539c still says without the consent of all parties thereto, so anyone recording a conversation they are not part of should treat the all party language as live. If you are the person being stopped or spoken to, you are a participant.

The exemption structure runs one way. MCL 750.539g(a) provides that sections 539a to 539f do not prohibit eavesdropping or surveillance not otherwise prohibited by law by a peace officer of this state or of the federal government, or the officer's agent, while in the performance of the officer's duties. There is no matching exemption for a member of the public recording the same encounter. The other listed exemptions cover communications common carrier employees, public utility recording of service and complaint calls, and Department of Corrections monitoring of prisoner telephones under MCL 791.270.

A separate offence covers cameras rather than microphones. MCL 750.539d makes it a felony punishable by up to two years and $2,000 to install, place or use a device for observing, recording, transmitting, photographing or eavesdropping in any private place without the consent of the persons entitled to privacy there, rising to five years and $5,000 for a repeat offence or for distributing the resulting recording. Again the trigger is a private place, so the section does not reach filming in public. Using or divulging information you know was unlawfully obtained is itself a two year felony under MCL 750.539e.

Michigan also gives you a route to the officer's own footage. The Law Enforcement Body-Worn Camera Privacy Act, 2017 PA 85, effective January 8, 2018, exempts body camera recordings made in a private place from the Freedom of Information Act under MCL 780.313(2), but MCL 780.314 then lets the subject of such a recording, a person whose property was seized or damaged, a parent or legal guardian of a minor subject, or the person's attorney request a copy anyway. Recordings made in public are not covered by that exemption at all and are ordinary FOIA records. Retention is set by MCL 780.316: at least 30 days for an evidentiary recording, until completion of any ongoing investigation or proceeding, and at least three years where the recording is relevant to a formal complaint against an officer or agency. An agency may charge a fee under MCL 780.317, calculated under section 4 of the FOIA, MCL 15.234.

There is no Michigan charge for recording police in public as such. 539a, which a roadside stop is not, and the maximum on conviction is two years or $2,000. 539e adds a two year felony for using or divulging what was obtained. 539h entitles any party to an eavesdropped conversation to an injunction against further eavesdropping, all actual damages against the eavesdropper, and punitive damages as determined by the court or jury. 479, resisting or obstructing, because subsection (8)(a) defines obstruct to include a knowing failure to comply with a lawful command.

That is a felony punishable by up to two years and $2,000, rising to four years for a bodily injury requiring medical attention, ten years for serious impairment of a body function, and twenty years where the officer dies. Keeping distance and complying with an order to move back, while continuing to record, keeps the encounter outside section 479.