Recording Minnesota police: one-party consent and no buffer-zone law

Minnesota's wiretap law is chapter 626A, and the answer to the recording question sits in its exemptions rather than in any right-to-record statute. Section 626A.02, subdivision 1 makes it an offence to intentionally intercept a wire, electronic or oral communication. Subdivision 2, paragraph (d) then removes from that prohibition any interception by "a person not acting under color of law" who is a party to the communication or who has one party's prior consent. The one carve-out from the carve-out is purpose: the exemption does not apply where the communication is intercepted "for the purpose of committing any criminal or tortious act." Recording your own traffic stop to document it is not such a purpose. Paragraph (c) grants the mirror-image exemption to officers themselves.

The definitions do more work than the exemption in a street setting. Section 626A.01, subdivision 4 defines "oral communication" as an utterance made "by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." An officer giving commands on a public shoulder of a Minnesota highway, or speaking in front of a crowd, is not exhibiting that expectation, so the recording is not an interception of an oral communication at all and chapter 626A never engages. Silent video is outside the chapter for a different reason: the statute lists only wire, electronic and oral communications, and subdivision 14 excludes wire and oral communications from the "electronic communication" definition.

The penalties on the other side of the line are severe, which is why the exemption matters. Section 626A.02, subdivision 4, paragraph (a) sets the general punishment for an unlawful interception at a fine of not more than $20,000 or imprisonment of not more than five years, or both. Section 626A.13 adds a private civil action: subdivision 2 allows equitable relief, damages and a reasonable attorney's fee and litigation costs, and subdivision 3, paragraph (b) fixes damages at the greater of three times actual damages plus the violator's profits, or statutory damages of the greater of $100 a day for each day of violation or $10,000.

The realistic legal risk while filming in Minnesota is not the wiretap act but section 609.50, obstructing legal process. Subdivision 1, clause (2) reaches whoever intentionally "obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties." Subdivision 2 grades it in three tiers: five years and $10,000 where the person knew or had reason to know the act created a risk of death, substantial bodily harm or serious property damage, or caused it; 364 days and $3,000 where the act was accompanied by force or violence or the threat of it; and 90 days and $1,000 in all other cases. Minnesota has passed nothing resembling the recent buffer-zone statutes in other states. A search of the whole of chapter 609 returns no offence framed around standing within a set number of feet of a peace officer.

The companion privacy offence confirms the geography. Section 609.746, subdivision 1 makes surreptitious observation or recording a gross misdemeanor, but every branch of it is anchored to a place: entering another's property and using a device through the window or aperture of a house or place of dwelling, or peering into the sleeping room of a hotel as defined in section 327.70, subdivision 3, a tanning booth, or another place where a reasonable person would expect privacy and expose intimate parts. A public arrest is not on that list.

Minnesota also gives residents unusually direct access to the police recording of their own encounter. Section 13.825, subdivision 4, paragraph (a) defines a body-camera data subject to include "any other individual or entity, including any other peace officer, regardless of whether the officer is or can be identified by the recording, whose image or voice is documented in the data." Paragraph (b) gives that subject access, with other non-consenting individuals redacted, and states that the identity and activities of an on-duty officer engaged in an investigation or response may not be redacted unless the officer's identity is protected under section 13.82, subdivision 17, clause (a). Subdivision 2 makes footage of a firearm discharge or a use of force causing substantial bodily harm public outright, and makes any recording public if a subject asks for it. Where a person dies from a use of force, paragraph (b) gives the next of kin five days to inspect, and paragraph (d) requires the agency to release the footage within 14 days unless the chief writes down why an ongoing investigation forbids it. Retention under subdivision 3 runs 90 days as a floor, one year for a firearm discharge, a substantial-bodily-harm use of force or any incident drawing a formal complaint, and indefinitely for deadly force, and a data subject may ask in writing for up to 180 additional days.

Two administrative rules back this up. Section 626.8473 forbids any Minnesota agency from using body cameras without first taking public comment and adopting a written policy that must be posted on the agency's website, and it requires the camera to be worn at or above the mid-line of the waist. Section 626.9517, subdivision 3 goes further for the agencies that took the state's racial-profiling-study camera grants: the chief must give the driver of a stopped vehicle a copy of the dashboard recording of that stop on request, at the driver's expense, if the recording has not yet been reused.

02, subdivision 2, paragraph (d) exempts them. 13 for the greater of treble damages or statutory damages of $100 a day or $10,000, with attorney's fees. 50, subdivision 1, clause (2), where the penalty depends on which of the three tiers in subdivision 2 applies: 90 days and $1,000 for ordinary interference, 364 days and $3,000 where force, violence or a threat of either accompanied the act, and five years and $10,000 where a risk of death, substantial bodily harm or serious property damage was created. 825, subdivision 2, paragraph (g), which requires the judge to examine the disputed data in camera.