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.

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  1. They only beat us out of love.

    1. Right. The love of beating people.

  2. great song by Elvis Costello.
    I always carry my mp3 player with me, it is capable of covertly recording audio. I carry it with me not only to be able to listen to music, but to be able to record the police. if they stop me I can hit record easily and say that I do not consent to a search. if they search me anyways I have evidence that they illegally searched me and hopefully would be able to use it as evidence in court.

    1. Thank you Mr Cha. We appreciate your candor and will be paying you a visit shortly.

  3. I don’t think you should be able to record the police doing their jobs.
    I mean, when an officer is beating the spleen out of a minority on the street, he has to keep focus. The last thing he needs is to be bludgeoning someone and wondering if his fly is unzipped. It’s a hard fucking job.

    1. Indeed. Besides, all of the make up and stylists would cost taxpayers a ton.

      1. That’s only a big cost if you’re doing a drug raid and shooting dogs.

  4. What astonishes me about the Graber case is that in a media market which includes media Bigfoots like the Washington Post and the Baltimore Sun, there has been almost zero media coverage. In fact, apart from a local television station I do believe that Reason is the first real media outlet to cover the abuses against Graber.

    1. Please feel free to pretend I didn’t overuse the M-word there. My kingdom for an “edit” button.

      1. The post has covered it. Front page, shortly after it happened. Since then they’ve had some stuff in the metro section (local new very rarely makes the front). Granted, overly cop-sympathetic (I don’t remember seeing anything about the harassment of the recorder, which is an extra outrage).

        Well I’m commenting, I always find it a bit ironic when Libertarians want to use Orwell to make political points (seems a democratic-socialist would be held in less esteem), but quite appropriate here.

        1. Right, because one of the world’s most famous and prescient critics of totalitarianism has no ideas libertarians should find worth citing…

        2. I always wonder whether toilet flows run counterclockwise in the southern hemisphere.

          Where in Orwell’s writings do you find support for the sort of conduct described in this article?

      2. is fun

  5. In this day and age, why isn’t every single LEO interaction recorded and automatically uploaded remotely automatically. From a saftey standpoint you would think they would want to have the surveylance capability to tune in to any and every interaction.

    1. Because they’re utterly corrupt and will fight tooth and nail any way to monitor them?

    2. Me thinks these LEOs foisted themselves upon their own surveylances.

  6. Thanks for the gut punch Radley.

    I’m not even certain that any judge signed the warrant.

    1. I’m positive it was signed by a judge. I’m also reasonably positive said judge didn’t bother to read the warrant or take any other steps to make sure it was actually justified.

      1. +1. I used to be a public defender and was in the courthouse all the time. If a judge recognized a cop, the judge would just hurriedly swear the cop in, take the warrant, and sign it without reading it.

        1. It’s not exactly surprising — judges risk a lot more professionally by denying a warrant than by signing off on the most odious shit that’s ever been smeared on a piece of paper.

          1. Why is that?

          2. How so?

            Honestly curious.

            1. I’d guess that it’s because a judge who fails to approve a weak warrant, and the person goes on to committ some crime which would have, assumedly, been prevented by their arrest, faces far harsher criticism than if they approve a weak warrant and then a person is arrested unjustifiably. The former means the judge is seen as “weak on crime” while the latter is seen as “an unfortunate mistake”.

              Just my wildly uneducated guess though.

    2. “That judge needs to be held accountable, as do the cops who violated Graber’s civil rights”
      Ha, Ha, Ha..Ow!!!! I hurt myself laughing. When has any judge, whether sleeping at death penalty trials, believing preposterous bite mark evidence, or zillions of other examples, ever distinguished themselves for intelligence, courage, or common sense?
      Talk about a thin blue line – the flowing black robe line is even worse!
      There is not even the pretense of ANY review, oversight, or consequences for the most absurd decisions.

  7. How much will Graber collect from the state for spending 26 hours in jail?

    I put the over/under at $50,000.

    SORRY, Maryland taxpayers. KA-CHING!

    1. It ought to come out of the cops’ retirement pension

      1. and he should be able to kick those cops in the nannies at least once

  8. Any Reason geeks out there who want to whip up an Android app for recording video and/or audio and automagically uploading to a server or sending a self-addressed email with the file attached or some shit? I’da been downloadin that bitch.

    1. Rhayader google for qik.

      1. Baddest of ass. Thanks guys.

  9. iPhone, iPhone, iPhone. Reason writers are such a bunch of Apple fanboys!

    1. Someday when you also have mountains of disposable income and no way to possibly spend it all, then you too will become an Apple fanboy.

    2. Yeah you’d think the non-stop corporate paternalism might turn a few of them off. Apparently not though.

  10. “A nebulous ‘right’ to __________ isn’t enough. The right needs to be enforced.”

    Heresy! Positive rights don’t exist! Government can only take rights away, not enhance them. I don’t see anywhere in the constitushun about video tapes and cops.

    1. “A nebulous ‘right’ to __________ isn’t enough. We need to hold accountable the militaristic dickheads who seek to violate that right.”

      How’s that?

    2. Goes all the way back to English Common Law – something along the lines of “even a cat may look upon a queen.”

  11. Now, for those of you who say I’m always a devil’s advocate, let the record show that I am in total agreement with Mr. Balko on these issues. It is very important that we keep the police in check.

    1. Running his hand through his graying black hair, Smith exhaled forcefully and contemplated the proper course of action. He decided to ask his crew to meet with him on the bridge; there he would advise them that while he would continue to explore all options to get them out of this mess, the situation was looking grim. If boarded, he would tell them, he planned to flip the so-called “suicide switch” which would within seconds fill the cabin with Xulyrt gas. This would kill the crew instantly and with any luck take a couple of the Mildren bastards with them.

      1. [gasp] Not Xulyrt gas!

        1. If you breathe it,you start saying ecky-ecky-ecky-p’kang-zoop!-boing, I think.

          1. Nee!

            1. Hand that over – that’s an offensive weapon that is!

  12. The Camera is the New Gun.
    Join us on Facebook:

  13. The Camera is the new Gun. Join Carlos Miller and many others on facebook at the new group devoted to see this change.

  14. Nothing screams out for a drawn weapon more than a geared-up motorcyclist at a complete stop with both hands on the grips. Thank Sgt. Friday the brave officer thought so quickly!

    So, I guess I should be glad that when I got popped for 90 in a 60 on the mighty Ninja last summer, the cop didn’t drop me right there with his [whatever handgun the OH State Troopers use].

    Before I was just kind of anxious about deer – now I have to fear those who are here to serve and protect me? Oh, NOES!!


    1. You know that could have easily been read by the rider as a life threatening situation. I can’t say that i wouldn’t have pulled my weapon as he was stepping out. Would he have the right to shoot me then? Fucking cops


    OK, that needs to be a sitcom catch phrase.

  16. Now, for those of you who say I’m always a devil’s advocate

    Who’s saying that? Who on earth has ever accused you of getting within shouting distance of a point?

  17. >quaintly referred to this as “a bizarre coincidence.”)

    Ah yes, the old “coincidence theory” strikes again. 😉

    1. …if it hadn’t been for those meddling kids!

  18. Another great article Radley. Keep up the good work.

    1. No it’s not another great article.
      It’s another infuriating article.
      And yes Radley should keep up the good work.

  19. Although Balko was appropriately blunt in his criticism of the police in this case, I fear he didn’t go far enough. Unfortunately, it seems law enforcement (police, prosecutors and judges alike) engage in criminal conduct in a systematic and routine basis, with forethought and and malice in order to do harm to innocents. (Just to be clear, I don’t just mean those who you and I might deem innocent, but those they believe innocent of any criminal wrongdoing.)

  20. I’m worried that, if John Doe feels he cannot document or report to his fellows abuses of the police, both to protect himself and his fellows, then the only protection is violence against those that would do him harm.

    1. Two unfortunates were entrapped by police in Puerto Rico back in ’78, beaten and murdered, allegedly because they were about to blow up a television transmission tower. It took till around the mid-eighties for sixty minutes to pick up the results of the ongoing, eventually successful court case. The agent who “infiltrated” the “terrorist” group and talked the two numbskulls into going along with him to “destroy” the tower (armed with a revolver and a gallon of KEROSENE, which as any child knows is a highly explosive substance…) was, a couple of years later, boxed in in traffic on his way to the beach with his family and shot to death. The “terrorists” left his wife and children unharmed.
      In many countries, there is a saying, which goes something like “revenge is a dish which, the older it gets, the better it tastes.
      Just for the record, I am a spectator. I don’t consider it my duty to spank the errant LEO. I leave that to someone who has much, much less to lose than I. Are you listening??? Mark Twain once said “I’ve never killed a man; but I’ve read many an obituary with great pleasure.”
      I, for one, look forward to reading such news with great pleasure.

      1. “The agent who “infiltrated” the “terrorist” group and talked the two numbskulls into going along with him to “destroy” the tower (armed with a revolver and a gallon of KEROSENE, which as any child knows is a highly explosive substance…) was, a couple of years later, boxed in in traffic on his way to the beach with his family and shot to death. The “terrorists” left his wife and children unharmed”

        Sure,what harm could come from watching your husband/father shot to death. Doesn’t sound even remotely like something a “terrorist” would ever do…

  21. They pulled that on me in Fairfax Virginia, and my lawyer Marvin Miller of Alexandria (and NORML!) refused to challenge it.



  22. With the guy on the motorcycle, I didn’t see much wrong with the stop. Aside from not identifying himself in the first sentence. But he did do it in his third sentence. If you look at it, a cop is behind the biker too. I could have defended the cops for that. But to then raid the guy’s house, no way. Assholes. The judge that signed the warrant should be disbarred.

    1. No reason to pull the gun. He should be fired just for that.

  23. I want to live in a Libertarian society. I do not care if that is a particular state in the United States or an entirely different country. Where is this place? Galts Gulch if you will? I can not identify any such place. Does it not exist, and if not why do like minded individuals not create one?

  24. Isn’t this how Nazi Germany started?

  25. Man, those cops are sensitive. Always in fear for their lives from one little thing or another.

  26. I don’t support the death penalty, but I’d not really raise too much of a stink if interfering with the recording of a law enforcement officer was a capital offense. Abusive cops and their enablers pose a greater threat to society than just about anything short of a crazy with a nuke or something like that. They are scum.

  27. Jeez, I’m supposed to afraid the incompetent boob Arpaio out here in Maricopa County, meanwhile back in my old home (‘The Free State’) PG County cops are keeping up the old traditions & those scary state troopers are doing their best to not be shown up by the cops from old tobacco-land.

    I wonder if anything is happening in Iowa.

  28. A for-the-record quibble;

    Graber was not “punished for a crime he didn’t commit”, he was punished for a non-crime he did commit.

    Not that the cops should feel free to do either.

  29. Please also note that if you watch the whole video of the incident, there is a Marked Patrol Car behind Graber at the time of the incident. Which would be videoing the whole thing with the dashboard cam.

    So why would the Unmarked police car cut off Graber, and the plainsclothes officer come out with gun drawn, instead of the uniformed officer in the patrol car behind him? And if the plainsclothes officer had actually shot Graber (which I don’t think would have happened, the officer had good control of his weapon, but accidents do happen), would the footage of the patrol car behind them actually ever see the light of day?

    1. If you watch that video carefully, you’ll see the expression on Uhler’s face when he notices the police car that pulls up behind the biker. Watch carefully as he turns to his right and holsters his weapon surreptitiously, as if to hide the fact from the new arrivals.
      Also, the fact that the camera was in full view was evident to him. He raised no objections then, so even if there was some question about recording, he gave consent with his silence.
      I’m looking into installing video in my vehicle, front and back.
      A day without video is like a day without Aunt Jemima’s.

  30. It possible, legally, to withhold this type of video until after the person in it (cop or otherwise) has perjured themselves, then have them prosecuted for perjury?


  31. Is an unsigned warrant even valid?

  32. These kinds of stories are why God created 42 USC ? 1983.

  33. Is ther no legal way to find out the judge’s name? Some form of FOIA request?

    I would think the search of the house with an unsigned warrant would, {cough} warrant some legal examination in Maryland.

    Not a lawyer, don’t pretend to be one, but why was he charged (the second “crime”) *after* they tossed his (parents’) house? Did they find anything? What did the warrant say they were looking for?

    Suing seems like it would be a nice option.

    I respect cops, generally. That being said, whenever I read Randy Balko my BP starts moving up.

    1. Unless they deemed him a possible terrorist, then the name of the Judge is irrelevant! Wooo!

  34. That was “Radley.” Oops.

  35. Incidents like this make me wonder why more police are not shot down by Americans. If Graber had responded immediately to the threat of an armed assailant by shooting the cop,(because Graber had no way to know this guy was a cop) I would vote on the jury to aquit.


    I hope your browser gives as wonky of a rendering as mine does. Sweet! (Oh, and go Hoosiers!)

  37. Im all for tougher laws for violent crime, but it seems the violent ones get better treatment than the ones who “get on the cops nerves” and dont forget kiddies “We want to help you, so just sign this and make things easy on yourself.”

  38. It is not enough to sue government agencies for tax payer money and suspend, discipline, or fire officials. When individuals (cops, judges, bureaucrats) overstep the authority delegated to them by law and step on other people’s rights, they need to be criminally charged.

    In the case of the warrant by the anonymous judge, my reaction is (tell me if I’ve lost my mind here) that IT ISN’T A WARRANT. If a warrant must be obtained from a judge, but the judge won’t put their name on the warrant, then it seems obvious as the light of day that you don’t have a warrant and therefore you are committing a crime by entering this family’s house, going through their stuff, seizing any “evidence”, and using the threat of arrest to overcome any resistance. I’m not satisfied with cops like this being “disciplined”. I want cops like this CHARGED.

    With that out of the way, I’m no fan of the people on receiving end of these incidents either. The images of a bunch of snot-nosed kids vandalizing public property is infuriating. There are definitely a few people in that crowd you could of used a good beat-down. Not legal, but would have been nice. What really ticks me off on that one is the cover-up by the one of the officer’s wives. Charge her criminally. In the second incident, I’m not crazy about somebody playing stupid people tricks on the highway next to me. While I don’t particularly like traffic cops, either, especially when they have chip on their shoulder, what happened in that traffic stop wasn’t completely outside the realm of reason. It’s the search of the family’s residence, the BS warrant, and the idiotic wiretapping charges that make me want to throw up.

  39. ***a just world all of them would be fired, and Graber and his parents would be compensated***

    No… In a just world, the judge and police officers involved would be dead.

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  41. And some people enjoy PCP a great deal. Ketamine is a whole different class of drug. She may well have enjoyed it much more, but I’d guess she wasn’t incredibly bright considering her tree climbing demise.

  42. This article is tea-bagger garbage. Robin Hood’s true legacy was fighting against the Norman aristocrats to help the Saxon peasants. During the 1950s in Indiana, Robin Hood was banned reading in some school districts because of right-wing bigots who thought Robin Hood was promoting socialism. Not that there is anything wrong with socialism.

  43. Not that there is anything wrong with socialism.

  44. Not that there is anything wrong with socialism.

  45. contusions, and cuts from the beatings.

  46. 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.

  47. “They told me they don’t want you to know who the judge is because of privacy.”

    It makes it difficult for voters to make informed decisions when it comes to judicial retention, if judges’ actions as judges are kept secret.

  48. People need to start banning together.
    And we need to start turning the television off and focusing on more important issues at hand, such as this.

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  50. People awake are in pain, ignorant people have their ignorant fun.

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