A citizen’s legal right to get a police officer fired for illegal surreptitious recording?

Pennsylvania law makes it a felony to record people’s conversations without permission, whether by wiretapping or eavesdropping or likely even sending in someone wearing a wire. It has various exceptions for law enforcement, if the proper conditions are met. But if a police officer records conversations without qualifying for one of the exceptions, he’s committing a crime.

But the twist is with the remedy. Two of the remedies are not uncommon: the officer could be prosecuted, though that requires a prosecutor to decide to do so, and he can also be sued for damages. But the third remedy is, to my knowledge, quite unusual: The person whose conversations were illegally intercepted can sue to get the police officer fired, and the court must grant this remedy if it finds that the officer intentionally violated the law. Here is the statute, 18 Pa. Consol. Stats. § 5726 (paragraph break added):

Any [person who was a party to the intercepted communication] shall have the right to bring an action in Commonwealth Court against any investigative or law enforcement officer, public official or public employee seeking the officer’s, official’s or employee’s removal from office or employment on the grounds that the officer, official or employee has intentionally violated the provisions of this chapter.

If the court shall conclude that such officer, official or employee has in fact intentionally violated the provisions of this chapter, the court shall order the dismissal or removal from office of said officer, official or employee.

A quick Westlaw search reveals that the remedy had been invoked in at least several recent cases, and in some of them the courts let the case go forward, rather than throwing it out as a matter of law on summary judgment. I don’t know, though, what actually happened in these cases — whether there was a jury verdict, a monetary settlement to get the case dropped, or a settlement under which the officer was indeed fired.

If anyone knows more about how this remedy has played out in practice, I’d love to hear about it. And of course it would be interesting to discuss the policy arguments for and against this sort of remedy.

I also couldn’t find any law review articles that discuss the issue; I think it would be ripe for a student law review note, especially if the note is framed around the remedy, and asks whether the remedy should be adopted throughout the country, rather than if the note is cast as “here is a Pennsylvania statute that I’ll discuss just in the context of this one state.”

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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Eugene Volokh · April 14, 2014