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“It’s absurd,” says David Rocah, who represented Graber for the Maryland chapter of the American Civil Liberties Union (ACLU). “No court in the country has found that police officers have privacy rights in a situation like that.” Rocah points to a 2000 opinion by then–Maryland Attorney General Joseph Curran Jr. about the installation of dashboard cameras in police cruisers. In a footnote, the opinion declared that motorists who are pulled over obviously have no expectation of privacy; what they say during that stop can be used against them in court. “They’re arguing that when a police officer pulls you over in Maryland, the officer has a privacy expectation, but the motorist doesn’t,” Rocah says. “That’s just ridiculous.”
Harford County State’s Attorney Joseph Cassilly, who brought the charges against Graber, disagrees. “Those opinions are just the attorney general paying some lawyers to tell him what he already thinks,” Cassilly says. “I don’t have to agree with it.…The officer having his gun drawn or being on a public roadway has nothing to do with it. Neither does the fact that what Mr. Graber said during the stop could be used in court. That’s not the test. The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear.”
Cassilly maintains that the Graber case is substantially different from the McKenna incident in College Park. “In College Park you had lots of people around,” he says. “You had people screaming and shouting. The officers in that case had no reason to think the situation was private.”
In the ensuing weeks two more incidents involving citizens recording police made news in Maryland. In one, an officer making an arrest in the infield during the Preakness Stakes* horse race warned a cell phone camera operator recording the arrest, “It’s illegal to record anybody’s voice or anything else in the state of Maryland.” But he didn’t arrest the camera operator. Two months later, another woman in Maryland was arrested for recording police who had responded to a noise complaint at her apartment complex, but prosecutors declined to press charges.
Given the range of legal interpretations in these incidents that occurred within a few months of each other, it’s difficult to see how a Maryland resident who witnesses what he believes to be police misconduct could possibly know if recording it is a felony that could send him to prison. “I don’t have any hard and fast rule I can give you,” Cassilly says. “It depends on the circumstances, and if the officer in those circumstances had good reason to think he wouldn’t be recorded. Should a domestic violence victim have a camera shoved in her face and have her privacy violated because someone is following a police officer around with a camera? What if he’s collecting information from witnesses at a crime scene? I’m saying that not everything a police officer does on the job should be for public consumption.”
“That’s ridiculous,” Rocah replies. “Police officers have always retained the ability to secure a crime scene or to talk to witnesses privately. This is about the right to record their public actions in a way that doesn’t interfere.”
In general, Cassilly says, police actions in front of large crowds probably can be recorded without breaking the law, but privacy claims are stronger when few people are around. But this standard undermines the use of citizen video as a check against police misconduct. Police actions in front of large crowds will naturally have a lot of witnesses, a fact that not only deters misconduct but makes video evidence less important. But what if a police officer is harassing or intimidating someone when there aren’t many witnesses, such as during a traffic stop or on an empty street at night? Would it be a felony to record the interaction? “I’m not going to respond to any hypothetical scenarios,” Cassilly says. “It just depends on the circumstances.”
In July, after I spoke with Cassilly, the Maryland Attorney General’s Office responded to a state legislator’s inquiry by issuing an opinion that said “it’s unlikely that most interactions with police could be considered private, as some law enforcement agencies have interpreted the state’s wiretapping act.” But that opinion was only advisory, and Cassilly announced in a subsequent radio interview he had no intention of abiding by it.
Ignorance of the Law Is No Defense
University of Pennsylvania law professor Seth Kreimer, author of a 2010 paper in the Pennsylvania Law Review about the right to record, says such legal vagueness is a problem. Citing decisions by three federal appeals courts, Kreimer says the First Amendment includes the right to record public events. “The First Amendment doesn’t allow for unbridled discretion” by police, he says, “and it’s particularly concerned with clear rules when free speech rights are at stake. Even if there is a privacy interest here, people have to know when they’re going to be subject to prosecution.”
The ambiguity may be of dubious constitutionality, but it’s common. In Massachusetts, the only all-party-consent state aside from Illinois that does not have an expectation-of-privacy provision in its wiretapping law, the Supreme Judicial Court in 2001 upheld the conviction of a man who surreptitiously recorded police officers during a traffic stop. The court ruled that the wiretapping law granted no exception for citizens recording police officers.
The state’s lower courts have interpreted that ruling as applying only to covert recordings of police: People get convicted of secretly recording police, while charges against people who record police openly have generally been thrown out. But arrests and threats of arrest continue under both scenarios. In January 2010, the The Boston Globe reported that it was becoming increasingly common for Massachusetts police to threaten or arrest even people who record them openly. State Attorney General Martha Coakley told the paper her office took no position on the arrests, or on the distinction between open and secretive recording.
Oregon and New Hampshire are also all-party-consent states. As in Maryland, their wiretapping statutes say the offended party must have a reasonable expectation that the conversation was private. Also as in Maryland, police in both states still have arrested people for recording cops. In July, the city of Beaverton, Oregon, paid a $19,000 settlement to a man wrongly arrested for recording officers as they arrested his friend outside of a bowling alley. But even after the settlement, Beaverton Police Chief Geoff Spalding told a local newspaper that taping police without their consent is a “technical violation” of Oregon law. Spalding conceded that the odds of future arrests were “pretty low,” but he wouldn’t rule them out.
In 2006 Michael Gannon of Nashua, New Hampshire, was arrested for recording police in his own home, despite having a warning posted that the premises were monitored by a surveillance camera. And last July, 20-year-old Adam H. Whitman of Portsmouth, New Hampshire, was arrested for recording cops who had raided a party where they suspected underage drinking. Both Gannon and Whitman were initially charged with felonies. Charges against both were later dropped.
Even in states where the law is clear, it can still be misstated and misapplied. The Pennsylvania Supreme Court ruled in 1989 that the state’s wiretapping statute does not apply to on-duty police officers and other public officials because they have no expectation of privacy. That decision was bolstered in 2005, when a federal judge in Pennsylvania ruled that police had illegally arrested Allen Robinson on the charge of harassing police officers after he videotaped traffic stops from a nearby field. While the case did not rely on wiretapping laws (Robinson was too far away to pick up audio), the judge said there was “no justification for the actions of defendants in violating Robinson’s right to free speech.”