In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recording Cops

Saturday, May 29th, 2010

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 GraberUhler 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.

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73 Responses to “In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recording Cops”

  1. #1 |  albatross | 

    I’m trying to work out what possible argument there could be for banning the audio recording of the police. I mean, I get the financial incentives to make it illegal to acquire evidence that lets you sue the city/county/state for brutality, but is there some argument that would make sense for forbidding this? I just can’t see one.

    It’s sort of like the pushback from the police and prosecutors about requiring videotaping of interrogations, or DNA tests on request for convicts challenging their convictions. The only arguments against it I can think of involve things like “we don’t want to get all our shoddy cases thrown out or overturned” or “we don’t want to be sued into bankruptcy when the video of how we got that confession comes out in court.”

  2. #2 |  Over the River | 

    It not only should be legal to video/audio record police activities, it should be required.

    While the number (as a percentage) of ‘wrongful’ activities by police may be slewed somewhat by this site*, it is clear they are doing harm to their profession by these (and many other) cases. The role of a police body should be to protect the public welfare. Cases like “SWAT Gone Wild”, misrepresentation of the law, and puppycide, turn the public off to what police offices should be doing.

    It should pain us all when we agree with posters who call for warning our children that “cops are bad”. That says far more about the police than the poster.

    *I don’t mean The Agitator is misrepresenting the numbers, it is more that we tend to see a higher number of stories about ‘bad’ cops, than ‘good’ cops. There is a good reason for that and I support the site for doing so.

  3. #3 |  SJE | 

    #42: good points. Basically, the motorcyclists is behaving as an ordinary person would if concerned that he is about to be harmed by someone who is not police. Sounds like too many tragedies from SWAT raids.

    And for those who think that unions got rid of child labor, you should read Charles Dickens, especially “Oliver Twist,” which stimulated the general societal condemnation of child exploitation. Child exploitation was outlawed at a time when unions were weak or even illegal.

  4. #4 |  SJE | 

    #52: Of course: stories like “area man was not killed today in a horrifying accident” or “student was not beaten by police” are not going to make the news. At the same time, we really do not know the real numbers of abuse, because the abusers cover their tracks.

  5. #5 |  Peter Ramins | 

    I can see “Student not beaten by police” as an Onion headline though.

    It would be really funny at first, but leave you angry.

  6. #6 |  albatross | 

    I think real-world versions of that story are extremely common, so common they’re not news. Otherwise, we’d all be scared to death of the cops all the time. Instead, most of the time, people being assholes to the cops simply get the ticket they might have talked their way out of, or get a “have a nice day sir” from a cop thinking “what an asshole.” But some fraction of the time, the cop realizes he can get away with beating the hell out of the guy who’s mouthing off to him, or can just pick some guy he doesn’t like the look of and use him to get even with life.

    We don’t know how often the cops misbehave, for a bunch of reasons. (Coverups, ambiguous evidence, criminals who are more concerned with getting out of jail time than suing for police brutality, etc.) But I’ve had maybe a dozen interactions with the cops at any significant level in my life, and they’ve never been worse than formally polite with me. Never. That’s what most people I know also have experienced. That’s just not consistent with most cops misbehaving most of the time.

  7. #7 |  SJE | 

    Albatross: I would agree that most cops don’t abuse, beat, kill, or steal from most people they encounter. Of course, if you were a black male in a rough neighborhood, your experience of police would be considerably more jaundiced: most black people I know have been given a hard time at least once for no reason.
    Nevertheless, the fact that most cops do not abuse, beat, kill or steal most people they encounter is insufficient reason to be alarmed at those who do. This is because (a) the cops that do this should not do so and (b) far too many cops, even if they do not abuse, beat etc, will cover for their buddies, and their union will and leaders will do everything possible to prevent accountability. Such corruption enables greater abuse and undermines the rule of law and society by destroying respect for authority in general.

    To put it in an entirely different way: to say that you have encountered police but have not been harmed is evidence that they can be trusted is like saying that because most people in Florida have not been eaten by alligators we should trust them enough to have an alligator as a family pet.

  8. #8 |  anarch | 

    @ Albatross #56 – Attributed to Pauline Kael in 1972: “How can Nixon have won? Nobody I know voted for him.”

  9. #9 |  Over the River | 

    Thank you for the follow-up to my #52.

    I wanted my point to be about police activity that should be brought to light. I do agree we will always see fewer stories about sunshine, lollipops, and (not-shot) puppy dog tails, regardless of the media.

    I feel one of the greatest values of this site, and Mr. Balko’s press appearances, is to educate the public (including law makers) that police activities like these do little to protect the public welfare, and actually harm the ability of LEO to gain public support for what they should be doing.

    I am old enough to remember when news was printed once a day and access to information was what someone allowed you to read. The Internet (and WWW) has allowed instant, far reaching coverage of things needing exposure. The Internet also allows for our comments and our spreading the word.

    You are all correct we need to see these stories; and shining a light on what could have been covered up is critical to our ability to participate in a democracy. We as a nation, are what we allow.

  10. #10 |  Yizmo Gizmo | 

    I got caught up in my own video-related brouhaha in 2002 in FLA.
    They wouldn’t release the video of the cop pulling me over.
    He had recently shot (and killed) someone who was unarmed, so PR was an issue.
    The atty was too chickenshit to get it. I said compel it then with a motion.
    She said no. I said I’d go to the bar. She said go ahead. I went to the bar with a complaint. She (eventually) got disbarred. Case fell apart when video
    demanded by new atty.
    I sued her (orig atty) in small claims and won.
    Shows ya how “in bed” some lawyers are with the system.

  11. #11 |  JS | 


    Wow Yizmo, See I wouldn’t have known to do all that crap. I get an education reading y’all on here.

  12. #12 |  Steve Verdon | 

    Porcupine Picayune,

    You are a fool to think that the feds are going to come down on the side of the citizen. I know its nice to pretend that there is pony somewhere inside government, but the reality is that it is filled up with nothing but power hungry parasites.

  13. #13 |  Revise the Maryland Wiretap Law? | Austrian Economics Blog | 

    […] Radley Balko points out, the officers’ reading of the law is out of step with the language of the statute itself and […]

  14. #14 |  Revise the Maryland Wiretap Law? | Think Tank West | 

    […] Radley Balko points out, the officers’ reading of the law is out of step with the language of the statute itself and […]

  15. #15 |  The Liberty Papers »Blog Archive » Ohio Supreme Court Speeding Ruling Lowers Burden of Proof and Opens the Door Civil Liberty Abuse by Police | 

    […] Ohio police can now pull over someone for no reason at all, lie about his or her rights, and threaten to write a speeding ticket if the motorist fails to ‘cooperate.’ Some motorists might think it wise to make audio and/or video recordings of any such interaction with the police to ensure such abuses are documented or prevented but as Radley Balko reports, this can have its own set of risks.** […]

  16. #16 |  jaycee | 

    Pimlico Policies from their website

    Items that are OK to bring into Pimlico’s Infield and Top of the Stretch on Preakness Day:

    Cellular Phones, Cameras (up to 35mm), Camcorders and Binoculars

    Items that are OK to bring into Pimlico’s Grandstand and Clubhouse on Black-Eyed Susan and Preakness Days:

    Cellular Phones, Cameras (up to 35mm), Camcorders and Binoculars.

    So a private property owner is noting in the private property owners rules that camcorders are allowed. So do the police think that paying ticket holders on private property are bringing the camcorders to just carry around.

  17. #17 |  Chattering Uncontrollably » Blog Archive » Nut jobs, Ohio being retarded, civil forfeiture, Maryland also being retarded. | 

    […] if you try to videotape an officer giving you a shady estimate of your driving speed, you can get sent to jail for 5 years. The cop can demand that you submit to a recording but not the other way around? Last I heard, […]

  18. #18 |  Downer § Unqualified Offerings | 

    […] about the camouflage uniforms, I’m also talking about the ones in squad cars.  Seeing people getting in trouble for taping police activities that take place in the open makes me despair for the future.  I assume that the restrictions on taping cops will only get more […]

  19. #19 |  Maryland cops trying to suppress evidence in their dealings with the public « HCS and Gen’s Place | 

    […] In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recor…. Filed under Anti-Americanism, New World Order Comment (RSS)  |  Trackback  |  Permalink […]

  20. #20 |  Valor Devalued | Truth and Justice For All | 

    […] exception to the law. Radley Balko, whose The Agitator blog I follow regularly, has now taken on the Maryland situation in light of some citizen-cop confrontations there, one of which appears on the brink of a gross […]

  21. #21 |  Maryland Attorney General Sides with Anthony Graber | Think Tank West | 

    […] opinion settles on its third possible outcome, agreeing with what I, Radley Balko, Carlos Miller, the Maryland ACLU, the Maryland courts, other Maryland State’s Attorneys, and the […]

  22. #22 |  keith goodwin | 

    if i see the police doind a wrongfull act ima still record it for proof in court. i have rights to do so. the police uses this method all the time. if they try to lock me up for that im sure my lawyer and i will get paid. this is america the land of te free. also im tired of or crooked government officials and cops.

  23. #23 |  In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recording Cops « My Rights in the USA | 

    […]… Share this:TwitterFacebookLike this:LikeBe the first to like this post. Categories: Photography, Police Comments (0) Trackbacks (0) Leave a comment Trackback […]