Free Speech

Maryland Judge Tosses the Felony Wiretapping Charges Against Anthony Graber

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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?

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    1. Paid vacation.

  1. “So what will be their punishment?”

    Paid suspension.

    1. Not ‘paid suspension’, ‘paid leave.’

      With ‘paid leave’, they continue to accrue seniority.

    2. Not even this. Nothing will happen. There will be no “punishment” of any kind, for of course they did nothing wrong.

    3. Promotions and accomodations all around, right?

      1. Medals, even. Those brave cops!

  2. Government officials have to live under the threat of losing their jobs every time there’s an election, even if they don’t deserve to lose them. Every public servant knows that if the voters throw a tantrum and elect a budget slasher, they could be on the chopping block through no fault of their own. That’s enough punishment as far as I’m concerned.

    1. hmmm, no.

      A person who works in private industry could be the best employee her company ever had and rake in a shitload of money for them, but if her bosses screw up, she could be on the street tomorrow.

      So the (unlikely) threat that voters will slash the public employee’s job is not sufficient. If a public employee screws up, the public employee should face the same sort of consequences as someone in private industry.

    2. Hobie troll or no troll – it’s the existence of people with views like this that persuade me to keep an arsenal and the ammunition dry, even though I don’t have the opportunity to go out and kill paper nearly as often as I’d like.
      -K

    3. Re: Hobie Hanson,

      Government officials have to live under the threat of losing their jobs every time there’s an election[…]

      And they quiver in fear of that all the way to their new post as lobbiers.

      That’s enough punishment as far as I’m concerned.

      Which means you’re not concerned about their actions at all.

    4. Every public servant knows that if the voters throw a tantrum and elect a budget slasher, they could be on the chopping block through no fault of their own.

      And this is different than nearly every private-sector working stiff’s job how? Oh yeah, we don’t have to worry about the voters having a tantrum – most of us can be fired at any time, for any reason (or for no reason). A simple “reduction in force” due to the economic times, and you’re jobless “through no fault of your own.”

      At least for those of us not privileged enough to be in a labor union.

      Welcome to the real world.

    5. Sorry I’m late, guys.

      “You blasted him, right?” Otis asked me. “He was an antenna.”

      I smiled. “I didn’t enjoy it, but you do what you have to do.”

      Otis nodded and bit his lower lip. “What now, partner?” he asked. “They know about you now, and Tyler was not the only antenna. They made sure of that.”

    6. Dan T. troll is Dan T.

    7. Need I point out that the arresting officer is not an elected official?

    8. “”Every public servant knows that if the voters throw a tantrum and elect a budget slasher, they could be on the chopping block through no fault of their own.””

      True, but the voter loves a tough on crime candidate.

  3. So what will be their punishment?

    *crickets*

  4. How about a civil suit? I can’t imagine there isn’t cause for something. It would be better if it was against the specific cop, but enough of these suits against the police forces and maybe they’ll get embarassed and quit acting so arrogant and stupid.

    1. The correct target (or at least one of them) for the civil suit would indeed be the individual cop. Unfortunately, however, his actions probably would be covered under the doctrine of sovereign immunity – although IMHO they shouldn’t be.

  5. Relax, man. It is a win. Enjoy it.

  6. Government officials have to live under the threat of losing their jobs every time there’s an election, even if they don’t deserve to lose them.

    Wrong. Bureaucrats rarely lose their positions. Higher level administrators, possibly, but they simply move on to a different government chair until the music starts up again.

    The comment is precious, because it readily admits that, without electoral change, there isn’t a chance in hell that any of these people are going to be fired due to their lack of performance.

    1. Even with an electoral change, there isn’t a chance in hell that any of these people are going to be fired.

      1. Damn you, Chester Alan Arthur! It seemed like such a good idea at the time…

  7. Hopefully this is just the first of many similar judgements. I hope one of the opinions contains something like “Smile officer, you’re most likely on camera – legally.”

  8. Oh, oh, I know this one! [waving hand for attention]

    Um, “fuck-all”?

  9. “So what will be their punishment?”

    Hmmm….jack….plus…..shit….

    Yeah, that’s it: Jack shit.

    1. Since “jack” is the term for a male donkey, I’d be pleased to see them immersed in donkey shit.

  10. Well, the public officials’ punishment will be knowing that there is a precedent for getting these types of frivolous charges thrown out, which will undoubtedly lead to more legal recording of on-duty officers.

    Unfortunately for Graber, and anyone else who tries to do so in the future, simply getting charged with a felony is permanently problematic. From personal experience, you have to report felony charges (and sometimes misdemeanors) on most job applications, even if there was no conviction.

    1. From personal experience, you have to report felony charges (and sometimes misdemeanors) on most job applications, even if there was no conviction.

      Um, no you don’t.

      1. Well, maybe you don’t have to report felony charges, but they ask (I’m a freelancer and have to fill out new paperwork for each company I work for), and lying doesn’t feel right–I imagine that’s especially so for somebody like Graber who didn’t do anything wrong. In my line of work, even a felony conviction probably wouldn’t disqualify a person, but for someone like a teacher who has background checks done, a felony charge isn’t what you want to be discussing at a job interview. So in effect the charge alone could be a form of punishment for recording the police.

        1. Outside of public safety / national security type jobs, pretty sure that constitutes invasion of privacy if they try to force you to answer about non-convicted offenses. Of course, they can easily run a background check and then make up some other reason not to hire you.

          It shouldn’t, of course — you should be allowed to ask any question you want of a potential employee, but that’s not how it is.

          1. See today’s brickbat.

          2. As the hiring manager, I’d be favorably inclined to an applicant who told me this story.

            1. I used to be a regional HR manager for a convenience store, and was about to hire someone who had a marijuana posession conviction…until the corporate office found out about it, overruled me, and reamed me a new a-hole in the process.

              Oh, and we had mandatory pre-employ drug screens, so it’s not like we had to worry that she was going to steal to finance a habit (any more than any other random person we hired).

  11. Hobie…what are you talking about dude? Were you reading the same article as the rest of us? I don’t understand your position. Who is an elected official here? The jerk-off cop? Perhaps the judge that issued the original search warrant is elected and the judge that finally made the wise ruling. Other than that though, I don’t understand the correlation of an elected official to the outcome of this case. Please don’t tell me that you believe this has something to do with a Governor or a Congressman. The only elected official that could possibly be involved on this would be a District Judge. And if there are charges brought against the cops – and keep in mind that this would be highly unlikely – it wouldn’t be a judge to make final ruling….that is why we have juries you see???

    I am still perplexed as to what you are thinking….enlighten me so I can take a walk in Hobie-world.

    By the way, the cops that over-stepped their bounds on this are ass-monkey-shit-fucker-douchebags.

    1. Lipschitz is my second-favorite double entendre math term. After the Hairy Balls Theorem.

  12. 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.

    Ignorance of the law is excusable when you’re in law enforcement. After all, you’re serving the public, putting your life at risk, and have only the best attention.

    Now excuse me while I go throw up after typing that.

  13. Punishment?

    1. The Arresting Officers:

    (a) Civil
    (i) Mandatory loss of employment
    (ii) Mandatory forfeiture of all retirment benefits
    (iii) No immunity from lawsuits
    (iv) Substantial, ruinous per se damages

    (b) Criminal
    (i) One million dollare minimum fine
    (ii) Minimum mandatory sentence of 25 years for the first offense; a second offense to merit life and a third offense to merit stoning to death.

    2. The District Attorney

    (a) Civil
    (i) Automatic disbarment
    (ii) Automatice loss of employment-even if he or she is elected as political rights must be subordinate to the vindication of individual rights
    (iii) Mandatory forfeiture of all retirement benefits
    (iv) No immunity from lawsuits
    (v) substantial, ruinous, per se damages

    (b) Criminal
    (i) five million dollar minimum fine
    (ii) minimum mandatory life sentence for the first offense

    Also, the forfeited retirement benefits would accrue to the victims of such brutality and to groups like The Institute for Justice.

    1. Look who’s suddenly in love with monopolizing the justice system.

    2. The worst punishment of all, pilloried in Hit & Run and exposed to the calumny of Reason blorettes…oh the humanity

      1. blogettes…small insignifcant snarksters who should be working and not trying to impress each other with their witty repartee

        1. oh yeah & exposing the rest of us to their juvenille and callow “insights”

  14. Memo to the cops employed by the People’s Democratic Republic of Maryland: Smile, bitches.

  15. LOL, for once the Kangaroo courts get it right! Wow.

    http://www.web-privacy.it.tc

    1. Sometimes, anonymity bot, you actually sound intelligent.

  16. “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.”

    Pwnage.

    Now the judge should require that those words be chiseled in stone, literally, and placed above the main entrance to every public building in the country. Police officers should have that on a sticker on every cruiser’s visor, and every police officer should recite it as one would the pledge of allegiance as soon as roll call is finished. Every day.

  17. I maintain that since anything you say to a cop can be used against you as evidence in court all conversations with cops are public. Even if it’s just the two of you standing in the middle of the Mojave desert.

    1. Even if it’s just the two of you standing in the middle of the Mojave desert.

      I think anywhere a cop can kill you and leave your body for the scavengers probably doesn’t count as public. Either way, what the hell would you be doing alone with a psychopath in the desert?

  18. off topic but the funniest thing i have read all month.

    In a study about general religious knowledge:

    Atheists and agnostics scored highest, with an average of 21 correct answers, while Jews and Mormons followed with about 20 accurate responses. Protestants overall averaged 16 correct answers, while Catholics followed with a score of about 15.

    http://dailycaller.com/2010/09…..-religion/

    Fluffy of course will read way to much into this….still it is funny.

    1. Oh cool i got 13 out of 15.

      Probably the only thing i am above the 93 percentile on.

    2. I got 14 out of 15. I missed the one about the Jewish Sabbath. I answered Saturday, even though I’ve read that it begins at sundown Friday – it’s the reason Christ was taken down from the cross on Friday evening. Should have answered Friday.

      1. Pretty simple questions really.

    3. Fluffy already has read too much into this in the Morning Links thread. Late to the party as usual.

      1. Joshua Corning|9.28.10 @ 2:16AM|#

        How was i late again?

  19. Punishment? Both the cop and the DA should wear a “take my picture” bread board for a week…

  20. Interesting thing about the State’s Attorney, Cassily:

    He spoke at a Cato event last week about the subject. Apparently he said that the Maryland statute was wrong, and he’s pushing the legislature to switch to one-party consent.

    Apparently he claims that that the lawsuit was partially to draw attention to the poorly drafted statute and get it changed. Still, I’m not happy about breaking eggs to make an omelet. His public comments are better than nothing, I suppose.

  21. I’ve said for years and still will, the police are way out of control and now it’s up to us to police them. To many of them think that metal on their chest gives them the power to do whatever they want.

    I see it all the time in Va where I live crooked cops being busted all the time, my county sheriff went to prison for his corruption.

    Always question authority, I don’t care if it’s a cop with 30 yrs on the job.

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