Gregory Rizer of Fayette County was arrested and his cell phone was confiscated by Point Marion police officer Kevin Lukart on January 3 after he recorded a question and answer session between Lukart and his friend while at home. The ACLU has now filed suit claiming police trampled upon Rizer's civil rights.
The day after Rizer complained to Point Marion Mayor Carl Ables about Lukhart's behavior he was arrested again by Police Chief Jay Stutler. He was charged with violating the state's wiretapping law. After being released on bail he collected his belongings from the jail and found the SIM card inside his cell phone was missing.
Sara Rose, a staff attorney for the Pennsylvania ACLU, said the state Supreme Court had previously ruled that the wiretap law does not apply in all situations.
"The police officer who's questioning the suspect in the suspect's own home does not have a reasonable expectation of privacy in that communication and therefore, the person being questioned, or anyone else who's a witness to that conversation, has a right to record it," Rose said.
The lawsuit alleges Rizer's First and Fourth Amendment rights were violated as a result of the actions of Lukart and Ables. It furthers asserts that Mayor Gables and Chief Stutler retaliated against him for exercising his right to report police misconduct when he was arrested the second time.
Rose said the ACLU hopes this suit will create a precedent for others who choose to express their First Amendment rights. "The ACLU has a strong interest in ensuring that the police understand the limits of the wiretap law, and also we are trying to get a court to affirmatively rule in the Third Circuit that there is a first amendment right to record police officers when they're performing their duties," Rose said.
The Fayette County District Attorney withdrew all criminal charges against Rizer on February 22.
