In a column last month I wrote about Anthony Graber, a Maryland man who was arrested for posting a video of a traffic stop to YouTube. Graber was pulled over on his motorcycle by Maryland State Trooper Joseph David Ulher. Uhler drew his gun during the stop. Graber was wearing a camera on his helmet. Graber thought Uhler's actions were excessive, so he posted the video to the Internet. Days later, police raided the home of Graber's parents. Graber was arrested, booked, and jailed. He was charged with violating Maryland's wiretapping statute. In an interview he gave to blogger Carlos Miller shortly after, Graber said, "The judge who released me looked at the paperwork and said she didn't see where I violated the wiretapping law."
In my previous column, I interpreted that to mean the judge had dropped the charge. Apparently that isn't the case. Graber is due in court next week. He faces up to five years in prison. State's Attorney Joseph Cassilly has also charged Graber with "Possession of an Interception Device." That "device" would be Graber's otherwise-perfectly-legal video camera.
Graber's case is starting to spur some local and national media discussion of the state's wiretapping law. As I mentioned in my column last month, his arrest came at about the same time the Jack McKenna case broke nationally. 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 Cassily's interpretation of the law, if any of those cell phones were close enough to record audio of the beating, the people who shot the videos are felons.
Now we have another video of an arrest during the Preakness Stakes in which a Baltimore police officer can be heard telling the camera-holder, "Do me a favor and turn that off. It's illegal to record anybody's voice or anything else in the state of Maryland."
That simply isn't true, and it's outrageous that Maryland law enforcement keeps perpetuating this myth. Perhaps that officer was merely misinformed. But Maryland police spokesmen and prosecutors are giving the impression that the state's wiretapping law is ambiguous about recording on-duty police officers. It really isn't. They've just chosen to interpret it that way, logic and common sense be damned.
Maryland is an all-parties-consent state, which means you have to get permission from all parties to a conversation before you can record it. But unlike Illinois and Massachusetts, Maryland's law does include a privacy provision. That is, if the non-consenting party does not have a reasonable expectation of privacy with respect to the conversation that has been recorded, there is no violation of the law. State and federal courts across the country have determined that there is no reasonable expectation of privacy in public spaces. This is why someone can snap your photo in public without your consent.
The Graber-Uhler traffic stop would fall under the "oral communication" provision of the law. Here's how the statute defines that term:
"Oral communication" means any conversation or words spoken to or by any person in private conversation.
Seems pretty clear, doesn't it? Graber is now represented by the Maryland ACLU. Yesterday, I spoke with David Rocah, who is handling Graber's case. "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," Rocah says.
Not to mention the gun. Under Casilla's view of Maryland law, not only is a cop permitted to pull a gun on you for a misdemeanor traffic offense, but his privacy rights protect you from documenting the encounter.
To date, no Maryland court has ruled that a police officer has a right to privacy in his on-duty interactions with the public. I've been researching this issue for a couple of months now, and to my knowledge no other state or federal court has, either. Massachusetts courts have upheld the convictions of people charged with recording cops under the state's wiretapping laws, but Massachusetts does not have a "reasonable expectation of privacy" provision in its law. Illinois passed the toughest wiretapping law in the country specifically because the Illinois Supreme Court ruled that cops have no right to privacy in their interactions with the public. In response, the state legislature revoked the expectation of privacy provision from the wiretapping law for the express purpose of making it illegal to record cops on the job.
But in Maryland it actually gets even more absurd.
In 2000, Maryland Attorney General Joseph Curran, Jr. was asked to issue his 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.
Curran determined that because protocol for the plan required officers to inform motorists they were being recorded, it did not. 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 to that opinion included the following language:
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."
I suspect most people would find this to be common sense. No one expects what they say to a cop during a traffic stop to be private. But when you combine that with how some Maryland cops and prosecutors are interpreting the law, such as in Graber's case, you get a perverse result: 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.
This does not sound like a serious interpretation of the law. But it's apparently the interpretation among Maryland law enforcement officials. A cynic might conclude that law enforcement officials in Maryland are reacting to the McKenna embarrassment by threatening and cracking down on anyone who videotapes on-duty cops, and they'll interpret the law in whatever way allows them to do so. At least until a court tells them otherwise.
Whatever their motivation, their legal justification is dubious. The McKenna case is a strong argument in favor of more citizen monitoring of on-duty police. The police not only beat the kid, they then lied about it in 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. Does anyone really think the charges against McKenna would have been dropped—and the officers who beat him suspended—if it weren't for the cell phone videos?
There are strong constitutional arguments in favor of a basic right to record on-duty police officers. But the prosecution of Anthony Graber is also wrong by any reasonable interpretation of state law, and by any sane concept of good public policy. This is the state that's home to the notorious Prince George's County Police Department, for God's sake—the department that spent five years under federal oversight because of the repeated use of excessive force among its officers.
Maryland Attorney General Doug Gansler should put an end to this faux ambiguity and declare that Marylanders who record on-duty cops are breaking no laws, much less committing felonies. He should also make it clear that so long as they don't physically interfere with an arrest or police action, they also are at no risk of having their recording equipment confiscated or destroyed.
If he doesn't, the state legislature should do it for him.