Darryl Simmons, a sergeant with the Southeast Pennsylvania Transportation Authority police department, has maintained that he shot Joe McNair because he thought he “was reaching for a gun,” according to the Philadelphia Daily News.
But McNair had no weapon.
In the profanity-laced recording, McNair can be heard asking Simmons several times: “You jealous of me, man?” and Simmons saying “All I want you to do is keep your dogs down.” The two men exchange more profanities before five shots are heard.
Then, before Simmons calls medics or police, he can be heard calling his wife: “Hey. I just shot and killed this b—-. I said, ‘I just shot this b—-.’ Yeah, come down to the bottom of the hill. Call 9-1-1.”
McNair had made a phone call prior to the argument, which ended up in the recipient’s voice mailbox, enabling it to record the argument and the shooting. The incident occurred September 17th, 2008 in Montgomery County, Pennsylvania.
Although Simmons has not been charged in the shooting, the newly revealed audio raises new questions.
However, Simmons’ lawyer states that it should not be introduced as evidence because it may have violated the state’s illegal wire-tapping law.
Pennsylvania has a “two-party consent” law meaning it is “a crime to intercept or record a telephone call or conversation unless all parties to the conversation consent,” according to the Citizen Media Law Project.
However, the law does not cover instances where there is no expectation of privacy between the two parties.
The law does not cover oral communications when the speakers do not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.” See 18 Pa. Cons. Stat. § 5702 (link is to the entire code, choose Title 18, Part II, Article F, Chapter 57, Subchapter A, and then the specific provision). Therefore, you may be able to record in-person conversations occurring in a public place without consent. However, you should always get the consent of all parties before recording any conversation that common sense tells you is private.
The incident occurred on a public street after both men had stepped out of their cars.