Watching the Detectives

A nebulous "right" to videotape on-duty cops isn't enough. The right needs to be enforced.

George Orwell famously said, "If you want a vision of the future, imagine a boot stamping on a human face—forever." He may still be right. But in today's age of smart phones, Flip cams, and iPod cameras, there's a pretty good chance someone's going to capture that boot and the face it's smashing and post both to YouTube for all the world to see. Two recent incidents in Maryland illustrate the power of this new and increasingly democratized technology—and highlight just how important it is that the law protect the people who use technology to hold government agents accountable.

The first incident made national news. Last March, after the University of Maryland men's basketball team beat Duke, students spilled out into College Park to celebrate. That brought out the riot police. In footage captured by several students with their iPhones, Maryland student Jack McKenna dances down the street with dozens of other students, then stops when he sees two cops on horseback. Unprovoked by McKenna, three riot cops then enter the picture, throw McKenna up against a wall, and begin beating him with their batons. According to attorney Christopher Griffiths—who is representing McKenna and another student, Benjamin Donat—both suffered concussions, contusions, and cuts from the beatings.

McKenna was charged with disorderly conduct, a charge that as of last week was still pending but now seems certain to be dropped. Prince George's County has since suspended four police officers, the three captured on tape beating McKenna and the sergeant who supervised them. But were it not for those iPhone videos, it would have been McKenna's word (and possibly those of whatever celebrating student witnesses he could round up) against the word of three of Maryland's finest. Or at least three. It seems likely that a number of other cops would have come forward to lie on behalf of those who beat McKenna.

If that sounds harsh, consider this: After the iPhone video of McKenna's beating emerged, investigators subpoenaed 60 hours of surveillance video from the College Park campus police. The only video police couldn't manage to locate was the one from the camera aimed squarely at the area where McKenna was beaten. Funny how that works. Campus police claimed that a "technical error" with that particular camera caused it to record over the footage of the beating. As public pressure mounted, police later found what they claimed was a recording of the lost video. But two minutes of that video were missing. Coincidentally, those two minutes happened to depict key portions of McKenna's beating. The kicker? The head of the campus video surveillance system, Lt. Joanne Ardovini, is married to one of the cops named in McKenna's complaint. (Washington D.C.'s ABC News affiliate, WJLA, a station with a history of deferring to police spokesmen without bothering to verify the accuracy of their statements, quaintly referred to this as "a bizarre coincidence.")

At about the same time McKenna's case was making the rounds on the cable news networks, another Marylander was illegally raided, arrested, and jailed. This time for videotaping a cop. On April 13th, Maryland State Trooper Joseph David Ulher pulled over Anthony Graber for driving his motorcycle 80 mph in a 65 mph speed zone. Graber happens to have a video camera mounted to his helmet. As depicted in the video that Graber later posted to the Internet, Uhler, in street clothes, cuts Graber off and emerges from his car with his gun drawn. It takes Uhler several seconds to identify himself as a police officer. You can decide for yourself if Uhler's actions were justified (Graber was apparently popping wheelies, and, according to Uhler, was driving in excess of 100 mph). But what happened next ought to get Uhler and a number of other police officers fired.

According to an interview Graber gave to photography activist Carlos Miller days after posting the video of his encounter with Trooper Uhler to the web, six officers from the Maryland State Police raided Graber's parents' home at 6:45 in the morning on April 14. Graber and his family were held for 90 minutes while the cops rummaged through their belongings. Graber was then charged with felony eavesdropping and spent 26 hours in jail. As an "official" told WJLA of Graber, "He had been recording this trooper audibly without his consent." The report from WJLA added, "That kind of recording is against the law in Maryland."

In fact, under Maryland law what Graber did isn't actually a crime. For a recording to be illegal, one of the parties being recorded must have a reasonable expectation of privacy. A cop, acting as a cop, with his gun drawn, while standing alongside a public roadway, has no such expectation. On April 15th, Graber was released and the charges against him were dropped. As he told Miller, "The judge who released me looked at the paperwork and said she didn't see where I violated the wiretapping law."

Graber was harassed, intimidated, illegally arrested, and jailed for an act that clearly wasn't illegal. According to Graber, the name of the judge who signed off on the raid of his parents' home doesn't appear on the warrant. As Graber told Miller, "They told me they don't want you to know who the judge is because of privacy." If true, that statement is so absurd it's mind numbing. A judge issued an illegal warrant for police to invade the private residence and rummage through the private belongings of a man who broke no laws, and we aren't permitted to know the judge's name in order to protect the judge's privacy?

That judge needs to be held accountable, as do the cops who violated Graber's civil rights. In a just world all of them would be fired, and Graber and his parents would be compensated. It isn't enough that the charges against Graber were dropped. He was still punished for a crime he didn't commit, and his punishment serves as a deterrent for future would-be documentarians of government abuse. If the authorities are allowed to intimidate people who legally videotape public officials while those officials are on the job—and that would certainly include government agents illegally raiding, arresting, and jailing citizens—then the right to videotape public officials doesn't really exist.

Put another way, if the harassment of Anthony Graber is allowed to stand without consequences, the next time the cops beat the hell out of someone like Jack McKenna, those around him may think twice about hitting the record button on their iPhones.

Radley Balko is a senior editor at Reason magazine.