Another Marylander Arrested for Recording the Police

According to state officials, only on-duty cops have a privacy right in public spaces.

The city of Annapolis, Maryland recently received a Homeland Security grant for 20 new surveillance cameras in the downtown area. The city of Baltimore already has nearly 500. According to the watchdog site PhotoEnforced, the state of Maryland has at least 375 red light cameras and 80 speed cameras. Your government is watching you, Marylanders. But don't think for a second that it's going to tolerate you watching back.

On Saturday, Yvonne Nicole Shaw, 27, was arrested by sheriff's deputies in Lexington Park, Maryland. According to the Southern Maryland News, Shaw was cuffed and booked for recording deputies who had come to an apartment complex in response to a noise complaint. Sheriff's Cpl. Patrick Handy's report explained that Shaw was standing about 12 feet from him, and that Shaw "did admit to recording our encounter on her cell phone for the purpose of trying to show the police are harassing people."

Shaw's arrest comes amid continuing national debate over the arrest and prosecution of Anthony Graber, who was arrested in April for posting a video of a traffic stop to YouTube. Graber was pulled over on his motorcycle by Maryland State Trooper Joseph David Ulher, who drew his gun during the stop. Graber was wearing a camera on his helmet. Days later, police raided the home of Graber's parents. Graber was arrested, booked, and jailed. He has been charged with violating Maryland's wiretapping statute, a felony that carries up to five years in prison. He has also been charged with "Possession of an Interception Device," that device being his otherwise perfectly legal video camera.

In yet another video taken at the Preakness Stakes and posted to YouTube last May, a Maryland state trooper tells a video operator recording an arrest, "Do me a favor and turn that off. It's illegal to record anybody's voice or anything else in the state of Maryland."

This seems to be the position of most of the law enforcement community in Maryland. It also happens to be wrong.

There are constitutional arguments to be made in favor of an inherent right to record on-duty police. Shaw was trying to document harassment, which falls under the right to petition the government for a redress of grievances. In Graber's case, there's a strong due process argument. If your rights have been violated by a police officer, it's often your word against the cop's. Video or audio documentation of the encounter is probably your only hope of proving your case. There are also basic policy arguments in favor of securing such a right. We tend to behave better when we know we're being watched, an argument policy makers often employ when justifying the use of government surveillance cameras in public spaces.

These are all good arguments to challenge the laws in states like Illinois and Massachusetts, where courts and policymakers have made it illegal to record anyone in public without their permission. Both states have explicitly renounced the expectation of privacy provisions present in other wiretapping laws. The laws in both states are ridiculously sweeping, and there may soon be federal challenges to both.

But Maryland's law isn't nearly as broad. Like several other states, Maryland requires that you obtain consent from all parties to a conversation before you're permitted to record it. But like every other state except Illinois and Massachusetts, Maryland also requires that the offended party have a reasonable expectation of privacy with respect to the recorded conversation. So when Linda Tripp recorded her personal phone calls with Monica Lewinski, she violated state law. Lewinski had good reason to expect her personal calls to remain private. 

But state and federal courts across the country have determined that there is no reasonable expectation of privacy in public spaces. Anyone can snap your picture while you're out in public. And unless you're making obvious attempts to protect your privacy, anyone can also record what you say.

Here's how Maryland's statute makes the distinction between public and private in the definitions portion of the text:

"Oral communication" means any conversation or words spoken to or by any person in private conversation.

David Rocah, who is handling Anthony Graber's case for the Maryland ACLU elaborates: "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."

According to state law enforcement officials, including Harford County State's Attorney Joseph Casilly, who is prosecuting Graber, not only is a cop permitted to pull a gun on you for a misdemeanor traffic offense, but the officer's privacy rights prevent you from documenting the encounter. State Police spokesman Greg Shipley defended Graber's arrest to TV station WJZ, explaining, "We are enforcing the law, and we don't make any apologies for that."

But they aren't enforcing the law. They're enforcing a tortured, absurd interpretation of the law that no court to date has endorsed. No Maryland court—and from what I can tell no court in the country—has ruled that a police officer has a right to privacy in his on-duty interactions with the public. 

It actually gets more absurd. In 2000, Maryland Attorney General Joseph Curran, Jr. was asked to issue an 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 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.