Monitoring and the
Law
Jorge Rodriguez
jorgerodriguez@monitoringtimes.com
Kentucky Scanner
Law: Use It and Lose It
In a few weeks on May 1st, the 130th
running of the Kentucky Derby will take place at Churchill Downs – Home of the
Kentucky Derby near Louisville. Some of the visitors to this event, and
certainly much of the media covering it, bring scanners to the event, but many
may be unaware of Kentucky’s new anti-scanner law. Racing enthusiasts who visit
the new Kentucky Speedway in Sparta about 40 miles southwest of Cincinnati, are
even more likely to bring scanners – a common fan accessory in motorsports.
These visitors, too, will be unaware of the law revised by the Kentucky
legislature in 2000, the same year the Speedway opened.
According to Mark Bajek, motorsports enthusiast
and contributor to The Paddock (http://motorsports.thepaddock.com),
a web site that caters to the motorsports fan and includes information on race
scanning, visitors to Kentucky should be aware that “…officers are duly sworn to
confiscate and destroy the radio on the spot.” The Paddock in fact warns
its readers, "[b]efore taking your scanner to a race, be sure you are familiar
with the laws of the state you are visiting regarding the use of radio
scanners.”
The actual text of the law in Kentucky that
makes it illegal to possess a police scanner can be found at
432.570
entitled
Restrictions on possession or use of radio capable of sending or receiving
police messages. It states that:
“(1) It shall be unlawful for any
person except a member of a police department or police force or an official
with written authorization from the head of a department which regularly
maintains a police radio system authorized or licensed by the Federal
Communications Commission, to have in his or her possession, or in an automobile
or other vehicle, or to equip or install in or on any automobile or other
vehicle, any mobile radio set or apparatus capable of either receiving or
transmitting radio or other messages or signals within the wave length or
channel now or which may hereafter be allocated by the Federal Communications
Commission, or its successor, for the purpose of police radios, or which may in
any way intercept or interfere with the transmission of radio messages by any
police or other peace officers.”
The law
goes on to prohibit police scanners in certain vehicles. “It shall be unlawful
for any car, automobile, or other vehicle other than one publicly owned and
entitled to an official license plate issued by the state issuing a license for
the car, to have, or be equipped with the sets or apparatus even though the car
is owned by an officer. This section shall not apply to any automobile or
vehicle owned or operated by a member of a sheriff's department authorized by
the fiscal court to operate a radio communications system that is licensed by
the Federal Communications Commission or other federal agency having the
authority to license same.”
Probation
and parole officers are excluded since, "[n]othing in this section shall
preclude a probation and parole officer employed by the Department of
Corrections from carrying on his person or in a private vehicle while conducting
his official duties an authorized, state-issued portable radio apparatus capable
of transmitting or receiving signals.”
Kentucky Penalties
Section 2
for the law states its penalties and provides that any person found guilty of
violating any of the provisions of this section shall be guilty of a
misdemeanor, and, upon conviction, shall be punished by a fine of between fifty
dollars ($50) and five hundred dollars ($500), and / or imprisonment up to
twelve (12) months.
Kentucky
authorities are authorized by the law to seize and ultimately destroy the police
radio or scanner at issue, since the law provides that it shall be the duty of
any and all peace officers to seize and hold for evidence any and all equipment
used in violation of the provisions of this section, and, upon conviction of the
person having, equipping or using such equipment, it shall be the duty of the
trial court to order such equipment or apparatus destroyed, forfeited, or
escheated to the Commonwealth of Kentucky.
Therefore,
Mark Bajek's advice to motorsport entusiasts is accurate, since the law
provides without much explanation that police scanners and radios “may
be ordered destroyed, forfeited, or escheated as above provided without a
conviction of the person charged with violating this section"
(emphasis added).
Other Exemptions
The
anti-scanner law in Kentucky has many of the usual exceptions seen in other
state’s laws, including licensed ham radio operators. “Nothing contained in this
section shall prohibit the possession of a radio by: (a) An individual who is a
retailer or wholesaler and in the ordinary course of his business offers such
radios for sale or resale; (b) A commercial or educational radio or television
station, licensed by the Federal Communications Commission, at its place of
business; or (c) An individual who possesses such a radio, provided it is
capable of receiving radio transmissions only and is not capable of sending or
transmitting radio messages, at his place of residence; licensed commercial auto
towing trucks; newspaper reporters and photographers; emergency management
agency personnel authorized in writing by the director of the division of
emergency management (for state personnel) or chief executive of the city or
county (for their respective personnel); a person holding a valid license issued
by the Federal Communications Commission in the amateur radio service; peace
officers authorized in writing by the head of their law enforcement agency,
Commonwealth's attorneys and their assistants, county attorneys and their
assistants.”
And then
the Kentucky law adds what should have been the law here all along and what
seemingly sticks out like a sore thumb in this part of the statute – “except
that it shall be unlawful to use such radio to facilitate any criminal activity
or to avoid apprehension by law enforcement officers.” And again the law reminds
folks that a "[v]iolation of this section shall, in addition to any other
penalty prescribed by law, result in a forfeiture to the local law enforcement
agency of such radio.” Kentucky really wants to take away those illegal radios.
Legal
Afterthoughts
Realizing
that they exempted most of the legal and legitimate users of police scanners,
but neglected to protect their own, the law winds up with further exclusions for
law enforcement agency chiefs, fire department chiefs, ambulance service
directors, and paid or volunteer members of a fire department and paid or
volunteer members of a public ambulance service licensed in Kentucky who have
been given permission in writing by the chief of the fire department. These
persons may possess a radio capable of receiving on a frequency allocated to a
police department or law enforcement agency, whether the radio is in a vehicle
or not.
The law concludes with what
may, perhaps, be a loophole for all. The secretary of the Finance and
Administration Cabinet is allowed to exempt the possession and use of any radio
communication equipment that he finds the general public and other non-police
persons may need for the proper operation of the NOAA weather radio system (see
http://www.nws.noaa.gov/nwr/).
Whether
such an order has been issued remains undetermined as we go to press, but,
curiously, the exemption does not seem to require the equipment to be of the
alert or alarm type that can be activated by a remote NOAA signal in times of
weather emergency. Therefore, if such an order is issued, simply having the
various 162.400 to 162.550 MHz frequencies in a scanner may possibly qualify it
to be used for this NOAA radio exemption.
Disclaimer: Information in this column is
provided for its news and educational content only. Nothing here should be
construed as giving specific legal advice. Persons desiring legal advice about
their specific situation should consult an attorney licensed in their
jurisdiction. |
