(Page 2 of 2)
Curran determined that because protocol for the plan required officers to inform motorists they were being recorded, it did not violate the statute. But Curran was also asked to determine what would happen if an officer inadvertently recorded someone without informing him first. Curran again said the officer would not have violated the statute. But a footnote added the following:
It is also notable that many encounters between uniformed police officers and citizens could hardly be characterized as “private conversations.” For example, any driver pulled over by a uniformed officer in a traffic stop is acutely aware that his or her statements are being made to a police officer and, indeed, that they may be repeated as evidence in a courtroom. It is difficult to characterize such a conversation as “private.”
This is common sense. No one expects what they say to a cop during a traffic stop to be private. But consider how this affects the way Maryland cops and prosecutors are interpreting the law: When a cop pulls you over or detains you for questioning, he—the public servant with the badge and the gun—retains a right to privacy for the entire encounter. You don't.
A cynic might note the curious timing of these arrests. They've come shortly after Maryland law enforcement officials were nationally embarrassed by the videotaped beating of Jack McKenna. McKenna, a student at the University of Maryland, was given an unprovoked beating by police during student celebrations after a basketball game last February. McKenna would probably still be facing criminal charges and the cops who beat him would likely still be on the beat were it not for several cell phone videos that captured his beating. According to the way prosecutors like Casilly view the law, if any of those videos also captured audio of the beating, the person who hit record is guilty of a felony.
The McKenna case provides a pretty obvious argument in favor of more citizen monitoring of on-duty police. The police not only beat the kid, they then lied about it in official police reports. The security camera footage of McKenna's beating, which is controlled by University of Maryland Campus Police, mysteriously disappeared. The officer in charge of the camera system is married to one of the officers involved in the beating. It took the cell phone videos to preserve some semblance of justice.
St. Mary's County State's Attorney Richard D. Fritz will decide whether or not to bring felony charges against Yvonne Nicole Shaw. To his credit, he seems reluctant. "If I'm convinced this was a public encounter that just happened to be recorded, I probably will not proceed with the prosecution," Fritz told the South Maryland News. "The facts will probably bear out that it was not a private one-on-one conversation."
That's good to hear, but really it isn't enough. Shaw was illegally arrested; her property was illegally confiscated. Merely dropping the charges against her doesn't change that, and still leaves Maryland police with the license to arrest and intimidate Marylanders attempting to hold them accountable in the future.
Maryland Attorney General Doug Gansler could put an end to this nonsense by stating explicitly that Marylanders who record on-duty cops are exercising their rights, not committing felonies. He could also make it clear that so long as a videographer doesn't physically interfere with an arrest or a police action, police are not permitted to confiscate or destory recording equipment.
If Gansler can't bring himself to vouch for his constituents' basic and self-apparent right to keep government officials accountable, the Maryland legislature should do it for him.
Radley Balko is a senior editor at Reason magazine.