Another Marylander Arrested for Recording the Police

According to state officials, only on-duty cops have a privacy right in public spaces.

The city of Annapolis, Maryland recently received a Homeland Security grant for 20 new surveillance cameras in the downtown area. The city of Baltimore already has nearly 500. According to the watchdog site PhotoEnforced, the state of Maryland has at least 375 red light cameras and 80 speed cameras. Your government is watching you, Marylanders. But don't think for a second that it's going to tolerate you watching back.

On Saturday, Yvonne Nicole Shaw, 27, was arrested by sheriff's deputies in Lexington Park, Maryland. According to the Southern Maryland News, Shaw was cuffed and booked for recording deputies who had come to an apartment complex in response to a noise complaint. Sheriff's Cpl. Patrick Handy's report explained that Shaw was standing about 12 feet from him, and that Shaw "did admit to recording our encounter on her cell phone for the purpose of trying to show the police are harassing people."

Shaw's arrest comes amid continuing national debate over the arrest and prosecution of Anthony Graber, who was arrested in April for posting a video of a traffic stop to YouTube. Graber was pulled over on his motorcycle by Maryland State Trooper Joseph David Ulher, who drew his gun during the stop. Graber was wearing a camera on his helmet. Days later, police raided the home of Graber's parents. Graber was arrested, booked, and jailed. He has been charged with violating Maryland's wiretapping statute, a felony that carries up to five years in prison. He has also been charged with "Possession of an Interception Device," that device being his otherwise perfectly legal video camera.

In yet another video taken at the Preakness Stakes and posted to YouTube last May, a Maryland state trooper tells a video operator recording an arrest, "Do me a favor and turn that off. It's illegal to record anybody's voice or anything else in the state of Maryland."

This seems to be the position of most of the law enforcement community in Maryland. It also happens to be wrong.

There are constitutional arguments to be made in favor of an inherent right to record on-duty police. Shaw was trying to document harassment, which falls under the right to petition the government for a redress of grievances. In Graber's case, there's a strong due process argument. If your rights have been violated by a police officer, it's often your word against the cop's. Video or audio documentation of the encounter is probably your only hope of proving your case. There are also basic policy arguments in favor of securing such a right. We tend to behave better when we know we're being watched, an argument policy makers often employ when justifying the use of government surveillance cameras in public spaces.

These are all good arguments to challenge the laws in states like Illinois and Massachusetts, where courts and policymakers have made it illegal to record anyone in public without their permission. Both states have explicitly renounced the expectation of privacy provisions present in other wiretapping laws. The laws in both states are ridiculously sweeping, and there may soon be federal challenges to both.

But Maryland's law isn't nearly as broad. Like several other states, Maryland requires that you obtain consent from all parties to a conversation before you're permitted to record it. But like every other state except Illinois and Massachusetts, Maryland also requires that the offended party have a reasonable expectation of privacy with respect to the recorded conversation. So when Linda Tripp recorded her personal phone calls with Monica Lewinski, she violated state law. Lewinski had good reason to expect her personal calls to remain private. 

But state and federal courts across the country have determined that there is no reasonable expectation of privacy in public spaces. Anyone can snap your picture while you're out in public. And unless you're making obvious attempts to protect your privacy, anyone can also record what you say.

Here's how Maryland's statute makes the distinction between public and private in the definitions portion of the text:

"Oral communication" means any conversation or words spoken to or by any person in private conversation.

David Rocah, who is handling Anthony Graber's case for the Maryland ACLU elaborates: "To charge Graber with violating the law, you would have to conclude that a police officer on a public road, wearing a badge and a uniform, performing his official duty, pulling someone over, somehow has a right to privacy when it comes to the conversation he has with the motorist."

According to state law enforcement officials, including Harford County State's Attorney Joseph Casilly, who is prosecuting Graber, not only is a cop permitted to pull a gun on you for a misdemeanor traffic offense, but the officer's privacy rights prevent you from documenting the encounter. State Police spokesman Greg Shipley defended Graber's arrest to TV station WJZ, explaining, "We are enforcing the law, and we don't make any apologies for that."

But they aren't enforcing the law. They're enforcing a tortured, absurd interpretation of the law that no court to date has endorsed. No Maryland court—and from what I can tell no court in the country—has ruled that a police officer has a right to privacy in his on-duty interactions with the public. 

It actually gets more absurd. In 2000, Maryland Attorney General Joseph Curran, Jr. was asked to issue an opinion (PDF) on whether a plan by the Montgomery County Police Department to install recording devices on patrol officers would violate the wiretapping statute. To date, Curran's opinion has not been modified or changed.

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  • Almanian||

    I knew it was only a matter of time before the Balko nut kicking resumed.

    Thanks for the respite, Radley - it was great while it lasted!

  • ||

    die motherfucker.

  • ||

    Cops don't want their crimes (and general assholisness) recorded. No surpise there. That any elected official or court would back them up is outrageous.

    Keep up the good work Radley.

  • smartass sob||

    That any elected official or court would back them up is outrageous.

    Yes, but that isn't surprising either - they all stick together.

  • Citizen||

    you would have to conclude that a police officer on a public road, wearing a badge and a uniform, performing his official duty, pulling someone over, somehow has a right to privacy when it comes to the conversation he has with the motorist.

    Hmmm, it seems like the Supreme Court thinks that text messages sent by a police officer while on duty were not private, but Maryland thinks that actions taken in broad daylight on public streets are private? Interesting. The following link has some info:

    http://www.wired.com/threatlev.....g-privacy/

  • ||

    You misspelled "disgusting" there. "Interesting" only shares a few of the letters, jeez.

  • IceTrey||

    Ya but the cop in the Graber case was in civilian clothes and didn't have his badge showing......GUILTY!

  • ||

    That case is a little different. The cop was using police department OWNED equipment to send and receive messages. I don't think ANYONE should expect privacy on a device owned by their employer.

  • ||

    They don't have a leg to stand on legally. And they know it. They are just going to keep arresting people and let the courts throw the cases out. To me this has gone long past the point of being a civil rights violation. The law in this area is settled. The cops know it and are ignoring it. That should strip them of sovereign immunity and make them personally liable for making a false arrest and violating this woman's civil rights.

    Think of it this way. What if the cops decided that women wearing shorts in public was a crime. And then they started arresting any women they say in shorts. How is that any different than this situation? In both cases, the law is completely settled against the police but the police are arresting people anyway.

  • ||

    Most of us know that the law counts for next to nothing if it suites the powers that be. The law has no more power than those who enforce it grant it.

  • ||

    Okay, I did not type "grant it" at the end of that sentence. Don't know where it came from. Also, that first sentence sounds confusing, but you know what I mean.

  • ||

    Oh damn it all, forget what I thought I meant to say.

  • TANSTAAFL||

    Maybe if the ACLU wasn't too busy attacking Arizona they could be bringing help to this civil rights violation of citizens as well as the myriad violations that are being instituted by his Majesty Barack the Obama.

    (and I know that I shouldn't be surprised but it still just chafes my ass when even the watchdogs start becoming lackeys of a political party and allow the police state to grow)

  • TANSTAAFL||

    ...and before you jump all over me about AZ law, I don't like the police having expanded authority to harass citizens their either, but as much as I don't like what it entails, they are only trying to enforce federal law that is being ignored. Plus, even if it may be wrong what is happening to illegals, the ACLU and liberal civil liberties groups like them tend to focus on protecting non-citizens over actual legal citizens and residents.

  • ||

    We can only hope that the feds continue to not enforce more and more federal laws. Yes it is a pity that the ACLU concerns itself with mere humans when it really should focus it resources on the more important citizen humans.

  • TANSTAAFL||

    Why are they called the "AMERICAN Civil Liberties Union"? If they were named the Human CLU, or World CLU, i wouldn't have a problem. And why you are prancing through fantasy land where we are responsible for the situation of every country that that has become so corrupt and miserable that its citizens flee at astounding rates, why don't you ask yourself where these people will go if we do not stop our own country from becoming just like it.

    It is the same reason when they trained us in fire search and rescue to keep the oxygen mask around our own neck and do not hand it to the rescued, but rather give them a few breathes and then take it back. If you hand it over while still in smoke, many times they will panic and not give it back causing you to pass out and you both will probably die. It is not inhumane to prioritize your own survival before you try to help everyone else. Especially because many times you are of little help to anyone else if you cannot even get your own house in order, you DOUCHE.

  • ||

    I think immigrants, especially the illegal ones from south of the border, are a win/win for the USA.

    I keep my house in order with cheap labor from south of the border and I stock my house with cheap goods manufactured in third world countries. Many businesses in the USA couldn't function without a similar arrangement.

    I like it that way. You see, to live well we need an underclass both close to our homes as well as working abroad. I wear no rose colored glasses about that. Both groups, home and abroad, get the benefits of working for Americans and learning the American way.

    Enforcing arbitrary immigration laws would impose costs on all of us and make them worse off as well.

  • TANSTAAFL||

    Then open the borders and end the falsity of legal vs illegal immigration. Why maintain the fiction and then complain when a state plays joins in it and decides to play and enforce the rules you have created. Arbitrary is having laws and then only sometimes enforcing them.

    And business could function just fine if you opened the borders. Yeah, st first, people would complain about higher prices as businesses had to pay workers minimum wage, BUT THEN, we would be forced to acknowledge the foolishness of what minimum wage laws do to the economy and the people it is supposed to be helping. We would be forced to to abolish it or pay inflated prices for inflated labor.

    The worst thing for illegal immigrants is to continue the way we are going. AZ law forces the issue to a head. How good of a life are illegals living when they are paid less than citizens for the same work and basically live in the shadows. We have a ridiculous policy in place and the only way to showcase it is to enforce the ridiculous. Same deal with these states that still have laws on the books against cohabitation or premarital sex. I love it when some backwater sheriff tries to enforce it. It just forces everyone to confront it and then get rid of it. And if we confront it and refuse to change it, then at least it is out in the open and we can see who supports it and who doesn't.

  • ||

    I agree. Do you still think I'm a douche?

  • TANSTAAFL||

    Absolutely.

    Mostly for this, "Yes it is a pity that the ACLU concerns itself with mere humans when it really should focus it resources on the more important citizen humans."

    But also because you smell funny.

  • ||

    true. nevada, specifically, las vegas and it's mayor...oscar goodman...visit baltimore to get an arena built. he also speaks to all mayors of all cities in his quest to keep l.v. under constant surveillence. the arena will keep women as prisoners in isolation in the middle of the desert as they have been since 1971, while gays and illegal immigrants run rampant and will throw money in the casinos which is supposedly good for 'tourism". The arena is an excuse, not a reson, to get people drunk and then go to the casinos after any game.

  • jacob||

    David Rocah, who is handling Anthony Graber's case for the Maryland ACLU

    Maybe if people like yourself read the article we wouldn't have really stupid fucking posts like this.

    However, I agree that the ACLU needs to back off the AZ law. I'm actually in favor of it.

  • TANSTAAFL||

    I'm sorry, has the publicity for this case gotten 1/100 of a percent of the attention from the ACLU as the Immigration law has? No, it has not. 1 lawyer from MD does not compare to the huge mobilization they enacted for the AZ law. Especially since the immigration law is simply an argument over who should enforce a law that has been on the books for decades and this is a huge and recent trend that could quickly spread and become a fait accompli before the public has taken notice.

    And I like how you call me "really fucking stupid" and then support my assertion that ACLU's priorities are misplaced.

  • jacob||

    has the publicity for this case gotten 1/100 of a percent of the attention from the ACLU as the Immigration law has?

    I have no idea what the ACLU's attention is. The Maryland ACLU is helping this guy out - what exactly do you want?

    And I like how you call me "really fucking stupid"

    I didn't. I said your post was, and it is.

    then support my assertion that ACLU's priorities are misplaced.

    I support the AZ law. I have no preference either way about what the ACLU prioritizes or not. I (apparently unlike yourself) don't wait for others to help my causes then cry when they don't.

  • TANSTAAFL||

    I should be more surprised to learn that Butt Plugs can type, but I guess i am more astounded at the fact that they read Reason.com instead of the Huff post.

  • Dave||

    Free Lunch...give me a break, you don't care about the Arizona because it's brown people who will be harassed.

  • ||

    agree 100%. What it really shows is that the public, prosecutors, state representatives simply will not demand that the police obey the law themselves - or even obey common sense. The police in question should be FIRED (willful failure to follow the law). That would do more to protect rights than a billion legal pronouncements.
    The sad fact is that citizens simply have no skepticism toward government and police, despite example after example of poor conduct.
    We have met the enemy, and it is the apathetic citizens

  • Michael S. Langston||

    In double speak, this is considered the new transparency....

  • Public Servant||

    "According to... Harford County State's Attorney Joseph Casilly, who is prosecuting Graber, ...the officer's privacy rights prevent you from documenting the encounter."

    Casilly also hasn't worked a day in the private sector according to his biography:

    http://www.msa.md.gov/msa/mdma.....14104.html

    Could that possibly have anything to do with his apparent disconnect?

  • kinnath||

    Dallas, Texas (CNN) -- A man suspected of killing a police officer and another person Sunday night at a suburban Dallas, Texas, apartment complex was the son of the Dallas police chief, authorities said Monday.

    David Brown Jr., the son of Dallas Police Chief David Brown, was also killed during an exchange of gunfire with responding officers, Dallas County Sheriff Lupe Valdez said.

  • ||

    The officer in charge of the camera system is married to one of the officers involved in the beating.

    You don't say. Eh, probably just a coincidence, they happen all the time.

    I have to go puke now, thanks Radley.

  • ||

    """And unless you're making obvious attempts to protect your privacy, anyone can also record what you say.""

    Wouldn't that still be illegal? The problem is with recording audio, not video. Sure there may be cops that want to make you think you can't record video, but you legally can. Audio is a different story.

  • ||

    You may "legally can" record video, but that sure doesn't mean you will be allowed to.

  • ||

    If the cop charges you for legal behavior, it most likely will be tossed by the judge.

    I think we need a law. Authoritative interference of a lawful activity.

  • Color of law||

    You mean likethis one?

    Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

    Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

  • ||

    Problem with this law stuff, to actually have meaning a prosecutor has to file charges...
    ....draws circles in the dirt with shoe.....
    30 years later...not one case filed against police.

  • Poppin' Caps Lock||

    I think he's referring to classified stuff in part.

  • AlmightyJB||

    What's amazing is that there are still cops that go out on noise complaints. You Columbus about noise and they'll tell you to go *^&* yourself.

  • ||

    you're welcome America, I'm the gift that keeps on giving.

  • ||

    hey wait, so am I

  • ||

    I thought that was you, ya bastid!!!

  • ||

    Herpes, will you marry me?

  • ||

    And thus began the apocalypse, 9 months after the nuptials.

  • ||

    i object!

  • ||

    You aren't useful in this situations so stay out of it.

  • ||

    Actually, usually you inject although sometimes you ingest.

  • Oozing Pus||

    Both of you do know that I'm your illegitimate love child, don't you?

  • ||

    ? So how exactly does this state law (not shared by many other states) reflect the Patriot Act?

    People have this weird tendency to blame the Patriot Act for everything. (Of course, it wouldn't surprise me if the cops or prosecutors tried to cite it incorrectly either here.)

  • ||

    Son...

  • Barack Obama||

    I don't have a problem with this.

  • Bob Etheridge||

    Hey, remember me? I'm the Democratic politician who assaulted a college student for filming me. So, I'm all in favor of measures like this.

  • Cass Sunstein||

    This, I like!

  • Janet Napolitano||

    Way ahead of you, Cass.

  • Charlie Rangel||

    You guys forgot about still picture cameras. Those are interception devices too!

  • ||

    Dunkin' Donuts has video cams.
    Do they arrest Dunkin' Donuts for taping cops? A million other public places that cops go on duty have cameras. Should they all be turned off so as to not record cops?

  • St. V||

    Double D's is private!

  • hmm||

    So it is also illegal to have traffic cameras in this state? The state has to follow its own laws.

  • ||

    No, it does not, courtesy of its monopoly on the administration of justice.

    But, horrors, we would have choas without it!

  • cynical||

    If you had to deal with even one choa, I think you might understand why the state needs that monopoly.

  • The Libertarian Guy||

    We might even have arnachy!

  • Robert||

    This reminds me of how this weekend at our local US Census office, we separated inter-office mail envelopes to be shredded because they contained Census employees' names, which are personally identifiable info that we've collected. True, the US statute concerning privacy, read literally, would command that, but I don't think that was the interpret'n they intended in enacting it!

  • ||

    Baltimore City Cops are the worst! The county cops aren't much better. Our legislators in maryland are shitty too.

  • Bryant||

    You know the score, pal. You're not cop, you're little people!

  • ||

    Blade Runner, right?

  • ||

    The only way to be sure to win a confrontation with a cop is to shoot first and aim well.

  • ||

    ++1

  • ||

    Cops = Federal bailout of the donut industry.

  • Tracy0214||

    Just want to say what a great blog you got here! I’ve been around for quite a lot of time, but finally decided to show my appreciation of your work!

  • ||

    Not bad, but you're no Privacy Bot, that's for sure.

  • ||

    As a Marylander I can tell you we live in a Democratic Fascist state. All here is for the benefit of the one party in power and they like it that way. High taxes and no real opposition; Maryland is a Democrat's dream state.

  • ||

    Maryland has a decent libertarian party. You should join us. We mostly go to raves and hook kids to our propaganda by telling them we're against drug laws. So we're the COOL politicians. See? Then when we go to D.C. around our snooty intellectual friends, we sell out the same kids by bitching about high unemployment rates and the dead-ender welfare-state culture we live in.

  • ||

    In Pittsburgh they arrested a city councilman for the same "infraction".

  • ||

    Just want to point out that Tripp taped Lewinski on an *interstate* phone call, thereby making her immune to Maryland's law on the subject.

    Every Maryland phonebook has (or had when I lived there) a thorough explanation of this subject. Apparently, the Montgomery County prosecutor didn't have a phonebook and tried to get her indicted; it was merely a coincidence he was a Democrat.

  • ||

    So why don't Republicans--Orrin Hatch and John Cornyn, for example--make an issue of this?

    Never mind.

  • Deputy Reason||

    It has been my experience that far more videos exonerate wrongfully accused officers than expose officer misconduct. Only the ones which paint the police in negative light seem to make it into the media for extended periods of time. Contrary to popular belief most officers welcome video recording which is why many departments install dash cams in patrol cars and provide audio recording devices to foot patrol officers. People tend to behave a little better when they know their behavior is being recorded and this is most certainly in the officer’s best interest.

    It is also perfectly acceptable for citizens to video record officers while they are performing their duties. When some states or law enforcement agencies express resistance (or in Maryland’s case pass crazy laws) with regard to video recording it comes from valid concerns over the officers’ safety. The fact criminals learn and exploit weaknesses in officers’ tactics and then jeopardize officers in future incidents from video recording motivates all kinds of responses from the government. However the government’s responses should never infringe on the basic rights of any person. Clearly everyone has the right to video tape their own life.

  • Dave||

    You are totally right Deputy...a good cop wants the encounter to be recorded, because it is more likely to be excellent evidence or, like you say it will exonnerate him/her from false charges (which are incredibly common).

  • David||

    In addition to your wholly salient points Radley, can't an argument be made for implied consent in most of these cases? It would seem to me that being aware of the presence of recording equipment and continuing to speak would nullify any subsequent claim to privacy.

  • ||

    I was totally in the wrong. I didn't need video to back my claims up at all.

    Warning: The link below has screaming for the first five sections to make a political point

    http://www.youtube.com/watch?v=ZlXbUatPc-A

  • ||

    Whoops. I meant "seconds." And it's more like eight of those seconds.

  • ||

    After your article on the first MD case I sent an e-mail to the MD AG asking for him to write an opinion clarifying the law and making it clear it was NOT a violation of MD law to videotape a policeman in the performance of his duties. I received in response a link to AG Curran's opinion that the police themselves were not in violation of the law. I responded to this "non-response" by pointing out this opinion didn't answer the question and restating that I was urging the current AG to release a statement that followed the logic of AG Curran's statement and make clear that citizens could not be prosecuted for violating the wiretapping law for taping a policeman. The response from the AG's office was "Yes and that would be the statement".

    I fear we're not making any progress.

  • +HoM&M||

    ... Monica Lewinski...

    A paragraph.5 later:

    ... "Oral communication"...

    </snicker>

  • ||

    the taking of picture helps the public from being forced into submission, in other words "I am a cop and I'll do my duty as I see fit, even if it torture you" so as long as I have the law on my side I am protected from being "Recorded" we face the fact that there are "BAD" cops out and about and it makes it hard for the good ones; we must have some from of public trust as safety, recording where there may exist and or any possible threat to public interest, to safeguard our civil as constitutional rights, as we've seen with search seizure laws, and in some aspect right of speech are at threat as result of such. does law enforcement feel they are above the law as feel hide their very actions? everyone must be accountable, what of the many who have been wrongfully accused without due process as well as such evidence of recording or picture frames of such encounter. to give a shield to law enforcement will only bring more issues,again "what do you want to hide"?? your wrongful performance against the people who pay the salaries of these cops to protect??

  • ||

    The woman was not really human. She wasn't white.

  • ||

    I would love to create a fund drive for their defense fund?

    I would like to encourage more people to violate this law.

  • ||

    I just saw the trailer for the forthcoming Green Hornet movie where we see the Hornet's limo tear through an intersection, setting off the flash of a surveillance camera. Kato presses a button on the Black Beauty's dash, launching a small missile that demolishes the camera.

    I can't wait to see the audience reaction to that...

  • ||

    Recording police encounters with the public should be mandatory, not illegal.

  • buy ugg boots online||

    I had a misdemeanor d be for the 96 gun law now i will be forced to sell my bussines after 35 years auto salvage yard to abide the law .Because of shells and guns in alot of them in my possesion Clean Record Since.

  • LeRoy||

    Law enforcement agencies in the state of Maryland often record -both video and audio- traffic stops and arrests. One could use that recording by law enforcement to make a legal argument that the officer is giving up his right not to be recorded by the public the moment he records them AND himself. By hitting record on HIS recording equipment, he is stating it is okay to record me now. Right????

  • Scarpe Nike||

    is good

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