Is It Legal To Tape Telephone Calls?

How to Avoid Getting Arrested For Making Illegal Recordings in CT

It’s tempting. Say you have a suspicion that your spouse is hiding something from you, your roommate is stealing or an employee is disclosing confidential company information to a competitor? Can you set up a system to record their phone calls? As an attorney practicing criminal law I often get calls from clients and other lawyers asking if it is legal in Connecticut to record phone calls. The answer is: sometimes.

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In Connecticut a person is guilty of the crime of Eavesdropping when they illegally record telephone calls, a class D Felony. That makes it a rather serious crime, punishable by a maximum of five years in prison. So, when is taping a crime? It is illegal in CT to record telephone calls without the permission of at least one of the people making or receiving the call. So, it is not illegal under CT law to record a call the person making the recording if they are a party to the call. Simple? Hardly. There are many other factors to consider. Although it may not be a state crime, whenever recording any telephone call, the person making the call must either record a warning that the call is being taped, or, have an automatic beep every 15 seconds. If the recorder does not take those precautions when recording calls they are subject to civil liability—a possible civil lawsuit.

Now it’s simple? Not yet. One of the most complicated aspects of figuring out if taping is legal is figuring out what law governs the taping. People call each other and receive calls from all over the country and with cell phones it’s difficult to know in which state either the caller or the person on the receiving end is physically located. They may move from one state to another even during the duration of one recorded call. These facts affect figuring out which state law applies and state laws vary from state to state. If both parties to a call are from Connecticut, it’s probably the CT Eavesdropping law discussed above that applies. There is another sticking point here. Under Federal law, a person is also committing a Federal crime when they record a call if they do not have the permission of one of the parties to the call. This federal crime has the same five year maximum prison term that the state law has—scary stuff.

So, to be clear, it is illegal to set up a device that automatically records calls of two other people.

What about recording conversations had between face to face people? Recording or electronically listening to conversations of other people is also illegal Eavesdropping.  A device will typically be illegal if is set up to record automatically whenever somebody enters a room and starts speaking, since it is likely to record conversations of people who have not given their consent.

Videotaping or photography

It is illegal in Connecticut to videotape or take still photographs of another person without their knowledge and permission, whenever the subject of the filming has a “reasonable” belief that they have a right to be private—not photographed– in that location. People have different opinions about what should be private, but places like bathrooms, showers and fitting rooms are private places where video or still photography is not allowed. When filming in other, public places, videotaping or photography is usually legal.

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This law differs from the CT Eavesdropping law in that a person cannot legally videotape or photograph another person by being one of the people in the picture or recording. One other note of caution about filming: if a person films a naked child they could subject themselves to very serious child pornography criminal charges.

All of these rules are different for police who have obtained a legal “wiretap” permit or a search warrant from a judge that allows them to listen to or tape conversations. If you ever get a letter informing you that your calls have been monitored, recorded or “intercepted” by state, local or federal law enforcement it very important to immediately contact an attorney.

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One more thing: any recording made that is illegally will not be allowed into evidence in court, regardless of how important the evidence is.

If you have any question about whether taping of a call or a conversation is legal always consult an attorney.

The Deadly Trend of American Indian Disenrollment

Four people are dead and two critically injured after a recent shooting spree in the tribal headquarters of the Cedarville Rancheria, a small American Indian tribe in Northern California. It all happened, police say, during a meeting at the Alturas headquarters where tribal leaders were discussing the banishment of Cherie Lash Rhoades—who has been arrested for the violent acts—and her son. Frustrations are boiling over in tribal membership disputes, reaching epidemic proportions, and this was only the most recent sign.

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Cherie Lash Rhoades. Photo courtesy of Modoc County Sheriff’s Dept.

In the case of most American Indian tribes, historically the tribes have had the power to determine tribal membership. For centuries tribes “banished” people as punishment for serious offenses. In recent years, however, a trend has been evident with tribes canceling membership, or “disenrolling” tribal members due to claims of inferior membership qualification.

While the most recent trend evidences most cases arising in California, the practice is not exclusive to California and there are cases throughout the United States. Recent mass disenrollments are spreading along the West Coast to Washington and Oregon as well. Although there is no way to know exactly how many Indians have been disenrolled, the numbers are substantial. One activist group says at least 5,000 tribal members were disenrolled in California alone between 2000 and 2008.

One such mass disenrollment is now being waged by the Nooksack Indian tribe of Northwest Washington State. The Nooksacks are a federally recognized Indian tribe with more than 1,800 enrolled members.  About 550 live on a Reservation of nearly 3,000 acres.

For 75 years Sonia Lomeli has lived with the belief that she is a Nooksack In dian.Born in 1938, Lomeli has fond childhood memories of participating in Nooksack spiritual traditions. Along with her family she visited Nooksack smokehouses on and off the reservation. The smokehouse, also called a longhouse by Indian tribes in the Pacific Northwest, is a spiritual place of rebirth. She recalls cooking in the sacred Noooksack “burning” events that honored her Nooksack ancestors.

Lomeli’s mother, Elizabeth James, known to her family as “Libby,” was a well-known artisan, a basketmaker, and believed to be the very last Nooksack basket maker.

Lomelli formally enrolled in the Tribe in 1980’s about 30 years ago, when the Tribe approved her application. If the current Tribal Chairman, Robert Kelly has his way Lomeli and more than three hundred of her relatives will be terminated, or “disenrolled” from the Tribe. On February 14 Lomeli received from the Tribe an ominous “notice of intent to Disenroll.” The notice informed her that she could attend a meeting of the Tribal council where termination of her tribal membership would be on the agenda. The Council later voted to terminate her tribal status along with 305 of her relatives.

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Sonia Lomeli. Photo courtesy of King Broadcasting.

Motivation for the disenrollment trend nationally is hotly debated. Some experts, such as University of Minnesota Professor David Wilkins, have pointed to internal personal squabbles or political factional differences as a source of the trend. Others like authors Kathryn R. Rand and Stephen A. Light point to the enrichment of tribes from casino gambling. Tribal governments universally deny that greed or power is motivating disenrollment, declaring that they are upholding membership rules established in valid internal constitutions. As proof, they say they are removing people with tangential connections to the tribe, who joined primarily for benefits and in some instances monthly checks financed by the casino profits.

At the heart of the Nooksack conflict is the contention of Kelly, backed by a majority of the Council, that Lomeli’s grandmother, Annie George, was not a legitimate Nooksack Indian. George lived from 1895 to 1949.  The Tribe claims that if Annie George was not a full-blooded Nooksack none of her 306 descendants can now claim tribal membership. Lomeli disagrees, as does her family’s attorney Gabe Galanda of Seattle’s Galanda Broadman. Galanda says Lomeli is ½ Indian and ¼ Nooksack, fulfilling Tribal requirements.

“My grandmother was an honorable woman,” says Lomeli.  “She wouldn’t lie.”

The consequences of disenrollment can be substantial. For Lomeli it is literally a matter of life or death. She suffers from diabetes and goes three times a week for kidney dialysis. Also living with her is her 54-year-old daughter, Angelita. Angelita is disabled, walks with a walker and cannot speak. She has ovarian cancer and Lomeli is her care provider. She takes her for radiation and chemotherapy.

Angelita is also being disenrolled. If the disenrollment is allowed Lomeli and her daughter will lose their tribal health benefits, the house they own on the Reservation in Deming, Washington of 23 years and will be forced to move off the reservation they have no idea where they will go. Elderly, ill and frail, Lomeli is beyond despair.

“If I have to leave,” says Lomeli, “I might as well die.”

Lomeli and her relatives have filed a number of lawsuits in the Nooksack Tribal Court in Deming and in federal court. So far they have been unsuccessful. The case in Tribal court is now on appeal. Federal case law, particularly the 1976 United States Supreme Court case of Santa Clara Pueblo v. Martinez make victory an uphill battle for the 306 Nooksacks now facing tribal disenrollment. The Tribe knows they have the upper hand.

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Casino gambling payouts to Nooksack tribal members have been minimal, so, observers say casino revenues are not fueling the attempted purge. Something else is happening here. Some believe it is a version of “ethnic cleansing,’ since Annie George’s three daughters whose descendants are being disenrolled all married Filipino migrant workers during the depression.  Still others believe it is an effort to rid the reservation of Indians who did not grow up on the Reservation. They left for education and jobs.

“There were no jobs on the Reservation when I was growing up,” said Lomeli, who worked in the StarKist tuna cannery in San Pedro, California and other places.  She returned in the1980’s when her elderly mother asked her to return to take care of her. She returned, bought a house from the Tribe, formally enrolled, and never left.

Others believe tribal politics play a role in the attempted purge. Lomeli’s family members hold official positions with the Tribe and are the targets of disenrollment. Her niece, Michelle Roberts 49, is an elected member of the eight person Tribal Council. Roberts was, for six years, employed as the Human Resources Manager for the tribally owned Nooksack River Casino. On August 21 without notice or warning she was fired from her job and escorted by a police officer out of the building.

“I asked them why I was being fired,” says Roberts. “They said it was, ‘at will,’” or in other words, because they could. The same day she received the pink slip she also received a notice like the one her aunt Sonia received, informing her that she was about to be thrown out of the Tribe.

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Michelle Roberts

Roberts’ cousin, Rudy St. Germain, is an Officer of the Tribe, the Tribal Secretary. He and all of his children are being denied tribal membership. Both Roberts and St. Germain have been removed from all Tribal Council meetings where the subject has been debated and voted on.  This summer the Tribe fired St. Germain from his job as a Tribal landscaper.

Galanda believes that the federal law, the Indian Civil Rights Act and the Tribe’s own Constitution guarantees the Nooksack 306 constitutional rights that have been violated and he’s hoping to convince the courts that he’s right. Neither Galanda nor his clients are giving up.

Meanwhile on March 15 the Tribe held Tribal Council elections. Two Council candidates who are disenrollment opponents won seats, defeating two disenrollment supporters. “As a result of the election, the disenrollment is now on hold,” he said.  “What is clear is that the Council and its Chairman lack a mandate for mass disenrollment,” said Galanda.

Neither Roberts or St. Germain are surprised that disenrollment has become violent in northern California, In fact, after U.S. Interior Secretary Sally Jewell and Assistant Secretary of Indian Affairs Kevin Washburn ignored a petition signed by 900 Washington Indians requesting federal intercession, Roberts and St. Germain and Rudy wrote them in December, 2013, foreshadowing the type of violence now apparent in the Cedarville shooting:

“What will it take for you to honor your trust responsibility?  The threatened unconstitutional taking of Indian-owned homes?  Further educational discrimination against Indian children?  Tribal elders’ loss of health care or their resulting death?  Violence amongst our people?  We hope not.” 

The letter, too, was ignored.

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Michelle Roberts (second from right) with her relatives.

Lomeli doesn’t think she is being overly demanding. “I just want to be treated fairly and be respected,” she says, “and for my ancestors to be respected.” Lomeli’s request is a simple one: “Let us live the rest of our lives here. I’m at the end of my trail.”

As difficult it is to be an American Indian living on a reservation today, tribal heritage and identity is something they will not forfeit voluntarily. As witnessed recently on the Cedarville Rancheria, left with no remedy, disenfranchised Indians are taking matters into their own hands and the consequences can be deadly.

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Note: Sonia Lomeli passed away March 25, 2014, 10 days after the tribal elections.

Jim Diamond has authored a chapter  on Disenrollment in the Thompson-Reuters book, Best Practices for Defending Tribal Membership Cases: Leading Lawyers on Navigating Tribal Membership Enrollment Issues . He is a practicing attorney and is admitted to practice in 2 tribal courts. Jim’s full bio is here.

2014 Nooksack Tribal Council Election

On March 15, 2014 a very important vote took place on the Deming, Washington Reservation of The Nooksack Indian Tribe. Read Jim’s updated article  about the Elections of the Tribal Council and the Deadly Trend of American Indian Disenrollment here.

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Big Media: Stop Making Rampage Shooters Famous

It’s inevitable. There will be another rampage shooting in the coming months. Sadly, they have become regular occurrences.

When it happens the event will become a major media event. CNN will go live to the scene of murder and mayhem, repeating over and over whatever tidbits of information they have about the tragedy. When the truth about the shooter (or shooters) and their motives are eventually revealed, there’s a good chance that CNN, the rest of the mass media and the public themselves will have moved on to the next Big Story, never learning the truth.

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Jillian Soto uses a phone to get information about her sister, Victoria Soto, a teacher killed at the Sandy Hook elementary school in Newtown, CT. (Jessica Hill/AP).

Is there anything the media can do to make these tragedies less likely to occur? I think there is.

Whether it happens in a school, a factory, a shopping mall or a courthouse it will happen again. Many people have many theories about why they have become so prevalent. After analysis of a generation of school shootings  (one category of rampage shootings) Katherine Newman in her 2004 book, Rampage, identifies five factors are common to these tragedies:

  1. The shooter’s perception of themselves as extremely marginal in the social world that matters to them;
  2. The shooter suffers from psychological problem that magnify the impact of their marginality;
  3. Cultural scripts lead them to an attack and the attack resolves a dilemma the script poses;
  4. A failure of surveillance or warning signs to identify the troubled shooter and a failure of peers to report the shooter;
  5. The availability of guns.

If Newman is right about the factors that rampage shootings have in common, and I believe she is, there are many things we can do to make these tragedies less likely to happen. That’s not the point I want to make today.

Rampage shootings are not typically spontaneous. They are planned for many months, sometimes even years in advance. One of the things that has become apparent is that rampage shooters study the mass killings that precede their spree. They obsess with the coverage.

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The CT State Police hold a news conference after the Newtown school tragedy.

Journalists will bristle with this suggestion, but I would like to suggest that when the next rampage shooting occurs, the media stop repeating the shooter’s name over and over again. Rampage shooters are often suicidal, but it is the fame that they want more than death. If death were all they wanted they would commit suicide and not murder as many innocent students or co-workers as they could.

I’m not suggesting that we keep the name of the shooters a secret, but editors and news producers should exercise self-restraint to use the name just once and then stop repeating it ever again. A search for the name of a rampage killer will always turn up the name, but making them famous only encourages copycats.

The First Amendment would make difficult legislating this policy, but there is a precedent for the media voluntarily adopting this new policy. The media has self regulated itself to never publish the name of rape victims. There is a good public policy rationale for that: the humiliation of media coverage re-victimizes the rape victim. Laws that prevent media revealing the names of juvenile offenders are common as well.

Dylan Klebold, Eric Harris, Jared Lee Loughner, James Holmes and Adam Lanza are household names. They shouldn’t be. They are far more famous than their victims. How many people can name the people Loughner murdered in Tucson?

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United States District Court Judge John M. Roll was murdered in Tucson by Jared Loughner.

We don’t need to know the names of rampage shooters. If we stopped publicizing their names they would be less likely to want to go down in a fiery blaze. Maybe, just maybe we might save some innocent lives. And how much harm would it cause just to give this a try?

I guarantee this initiative is easier to accomplish than curing mental illness, ending bullying in schools or passing comprehensive gun control. Let’s give it a try.

Madison Avenue Insights: American Indian Gaming

August 1, 2013        I was interviewed recently by Ron Urbach about  the impact of American Indian Gaming and casinos. Ron is the Chairman of Davis & Gilbert, one of the pre-eminent advertising law firms. He writes a very popular advertising/marketing industry blog called Madison Avenue insights. You can read the interview here: MADISON AVENUE INSIGHTS.

Cannibalism And Mental Illness On Trial In Bridgeport

There is a criminal jury trial going on in Bridgeport, Connecticut that is getting some national–even international—attention because the bizarre and gruesome nature of the allegations. Whenever you mention cannibalism you’re going to get people’s attention.

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Tyree Lincoln Smith, left, with his lawyer Joseph Bruckmann appearing at his trial in Bridgeport Superior Court. Photo, BK Angeletti courtesy of The CT Post.

America loves criminal jury trials. Trials are, in theory, a search for the truth. We love “who done it” capers. Mystery novels are popular. They account for about a third of all books sold. The adversarial process—the contest—is appealing to Americans and an interesting criminal trial is like sitting down to figure out a good puzzle.

Americans love sensational trials featuring celebrities or notorious crimes. Racial conflict always demands a mass audience, like the Florida murder trial now being conducted of George Zimmerman for the murder of Trayvon Martin.  The Los Angeles police officers put on trial in 1992 for the assault of Rodney King is another example of a trial with very serious racial conflict. The riots that followed the acquittals resulted in more than 50 deaths. The O.J. Simpson murder trial featured race and celebrity, a formula for a media attention on a grand scale.

Americans have always been captivated by capital punishment as well. Public hangings were popular spectacles throughout American history. The recent Jody Arias capital murder case in Phoenix is a modern-day example.

Hard to believe stories where Americans can picture themselves in the same predicament also capture the imagination of Americans, like Amanda Knox. Knox was the 21-year-old American exchange student tried for a murder in Italy; she was the image of middle America’s college age daughter. I have two of them myself.

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Amanda Knox at her trial in Italy. Photo, Elaine Thompson courtesy of AP.

The publicity can make it difficult to get a fair trial, as potential jurors form opinions about guilt or innocence before they have heard actual evidence or been told by the judge what law should be used to decide the case.

Much of a real criminal trial is boring to watch if you’re not a participant and it’s not your life at stake. Hearings on what evidence may be introduced may be routine and lengthy.

The trial going on in Superior Court in Bridgeport, Connecticut this week that has gained media attention is the trial of Tyree Lincoln Smith. Smith is the 35-year-old man charged with the Bridgeport murder of Angel Gonzalez. Gonzalez is described as homeless—a poor defenseless soul.

The gruesome fact of what Smith allegedly did to Gonzalez is why people are following this trial. The Bridgeport police claim that Smith killed Gonzalez with an axe. They say he mutilated Gonzalez’ head, removed an eyeball and part of his brain, put both in a bag and walked to a cemetery of all places, Lakeview Cemetery. At the cemetery police say that Gonzalez ate the eyeball and brain matter, and compared the taste of the eyeball to an oyster. Cannibalism, sadly, sells newspapers.

The lawyers in the case are two very capable Connecticut criminal lawyers. Smith is represented by Joseph Bruckmann, the chief Public Defender for Bridgeport. John Smirga, the chief prosecutor for Bridgeport is prosecuting the case. Bruckmann has claimed Connecticut’s version of the insanity defense, (“lack of capacity due to mental disease or defect”) and the trial is being heard by a three-judge panel.

The judges are John Kavanewsky, John Blawie and Maria Kahn. I have had appeared as an attorney in many criminal cases before both Kavenewsky and Blawie. Kavenewsky’s career started in California as a prosecutor. He is a no nonsense judge well known for presiding over the 2002 trial of Kennedy nephew Michael Skakel for the murder of Martha Moxley. Blawie, an extremely bright and thorough jurist is a former white-collar crime prosecutor and SEC lawyer. Maria Kahn is a highly regarded judge who is a former Assistant United State’s Attorney and was recently considered for a vacancy on the federal bench.

The Smith trial, with talented litigators and jurists and grizzly allegations of cannibalism has all of the trappings to end up a screenplay. Will Smith be found “not guilty due to a “lack of mental capacity” caused by mental illness and sent to a State prison hospital?  Did he have the capacity “to appreciate the wrongfulness of his conduct?”

What is most frightening is the daily reminder that there are seemingly mentally ill people in this country like Tyree Smith, the Jared Loughners, Adam Lanzas and so many others walking the streets, going about their daily lives untreated and in dire need of mental health treatment.

Gun control is an important public policy priority. More important, though, is  figuring out why there are so many people willing to commit senseless crimes who either do not value human life, prefer to die themselves, lack a conscience or are so mentally ill that they cannot stop themselves from killing. Can you think of anything more important and worthy of our attention? I can’t.

FIFA World Cup Soccer Is The Opposite of USA Pro-Sports–Returning to Yankee Stadium

I’m probably late to this party, but World Cup soccer is a treat. The over commercialization of big-time American sports sent this former Mets season ticket holder into a major retreat from pro-sports. FIFA soccer at Yankee Stadium, on the other hand, is totally enjoyable.

We decided to attend last week’s Spain vs. Ireland soccer match last week at Yankee Stadium and it was a hoot.

Travelling to the match was shockingly easy and unusually pleasurable for New York rail travel. We took the metro-north train from Connecticut right to the brand new Yankee Stadium commuter shuttle station. It was clean, cheap and on time. Since we were going to watch the Spanish team play I was reminded of the time I attempted to take the train in Spain. Unable to understand the announcements I leaped onto the wrong train, leaving my partner Marian behind on the platform, gesticulating with her hands a signal I thought meant, “get off at the first station.” Wrong. I jumped off the train at the first station, ending up on a lonely dusty platform in a Spanish village I never heard of and unable to communicate with anyone. The trip to Yankee Stadium was much more simple.

The Spain team plays with raw agility and athleticism. It is hard to understand how they can pass the ball with that kind of surgical precision. They dominated playing time and it didn’t seem like Ireland had much of a chance, but the match was close until the last minutes. It kept my rapt attention the entire match, and it moves quickly.

FIFA soccer is literally the opposite of American pro-sports.  The players, with only three exceptions, have to play the entire game. It’s not like the NBA with constant substitutions, or the NFL with complete offense/defense team changes and ever so “special” teams. There’s no ultra specialization like MLB baseball with a different pitcher for every imaginable match-up: like the left-handed pitcher who comes in the game in the 8th inning to throw only one batter. The FIFA players the coach puts in the game are the ones he runs with, with only three substitutions allowed per game.

Unlike American pro sports, there are no TV time outs every few minutes. The clock just runs. It took some getting used to not to have a bathroom break or just enough time to run over for a hot dog. With no time outs for food breaks to we hurriedly bought the food closest to our seats: chicken and pastrami Panini’s, the new yuppy classification for grilled meat and cheese sandwiches. I was hoping to make it a complete cultural event and enjoy Spanish tapas or an Irish stew. I would have compromised for a hot dog with mustard and kraut.

WIth my son at the match

WIth my son at the match

American pro sports are one-third-rock concert, one-third commercials/promotions and one-third sports game. There was no screaming scoreboard at Yankee Stadium FIFA, just the occasional polite PA announcement, and very timely instant replays on the big screen. We were spared the annoying foam finger souvenir hawkers and didn’t have to duck to avoid cheap tee shirts launched from surface-to-air missiles.

I had some trepidation about going to Yankee Stadium. The last time I was there was for the 2000 Subway World Series when angry Yankee fans leered “child abuse” taunts at me for raising a Met fan. So I expected the soccer fans to be rowdy. They weren’t at all. The Ireland fans took their defeat in good fun.

This soccer match was probably not typical since it was very early in the competition, and not in Europe. I bet this same match played in Brazil at the World Cup finals would not be as civilized. It helped that “last call” for beer was called at 9:30 pm, to the surprise of many fans. The heavy Irish accents and the Spanish spoken in the stands added to the entertainment.

I’m the first to rant when the stress of modern life overwhelms experiences. FIFA soccer at Yankee Stadium is the rare exception; an unspoiled, no frills athletic competition. I’m sold.