Maryland Judge Tosses the Felony Wiretapping Charges Against Anthony Graber

Graber is the Maryland motorcyclist who had his home raided, was arrested, jailed, and charged with two felonies for recording his traffic stop and posting it to the Internet.

Here's Harford County, Maryland Circuit Court Judge Emory A Pitt Jr.:

"Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation."

This is great news, and it's an encouragingly direct repudiation of Harford County DA Joseph Casilly.

But let's also note the double standard, here. This is a question of whether Maryland law prohibits the audio recording of police in public spaces. If Anthony Graber had been wrong on the law, what harm would he have caused? He would have violated the privacy of an on-duty government official acting in his official capacity along a public highway. Yes, could make a pretty good case that Trooper David Uhler suffered no real harm at all.

Contrast that with the harm Casilly and the police department's ignorance of the law inflicted on Graber. Graber and his parents were wrongly raided, based on a warrant obtained through an incorrect interpretation of the law. Graber was wrongly incarcerated overnight, then had to endure the stress and expense of felony charges hanging over him for several months.

Moreover, if Pitts had ruled the other way, Graber would have violated an ambiguous law, broadly interpreted in a way that most everyone else in the state (and for that matter the country), including the attorney general, believed to be incorrect. That is, he would have had no reason to believe that what he was doing was illegal.

Now you could perhaps argue that Casilly and the police department violated Maryland law unknowingly. But given their positions, that their responsibility as public officials is to enforce Maryland law, and that there isn't a single court case that interpreted the Maryland statute in the way they did to justify their pursuit of Graber, I find it far more persuasive that they either knew they were breaking the law, that they were willfully ignorant of the law, or that they were pretty severely negligent in their duties.

Now consider the consequences under each scenario:

Had Graber unknowingly violated state law in a manner that caused very little actual harm to anyone else, he at the very least would have had felony record. He could have gone to prison for several years.

Instead, we have public officials who violated the law, who should have known they were violating the law, and who caused significant harm to someone else in the process.

So what will be their punishment?